Cox Enterprises, Inc., d/b/a Atlanta Newspapers

ATLANTA NEWSPAPERS Cox Enterprises, Inc., d/b/a Atlanta Newspapers and Printing and Graphic Communications Union, Local No. 10, Subordinate to Interna- tional Printing and Graphic Communications Union, Petitioner. Case 10-RC- 12417 August 23, 1982 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On July 17, 1981, the Acting Regional Director for Region 10 issued his Decision and Direction of Election in the above-entitled proceeding, in which he found appropriate for the purposes of collective bargaining a unit consisting of all route managers, Constitution distributors, jumpers, sales helpers, day-off and vacation relief employees, and the plat- form helper employed by the Employer in the five- county "Metro" Atlanta, Georgia, area including Cobb, Gwinnett, Fulton, DeKalb, and Clayton Counties, but excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the National Labor Relations Act. Thereafter, in accordance with Sec- tion 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for review of the Acting Regional Director's Decision and Direction of Election, contending that the route managers should be excluded because they are supervisors within the meaning of the Act and that home de- livery distributors should be included in the appro- priate unit.' Printing and Graphic Communications Union, Local No. 10, Subordinate to International Printing and Graphic Communications Union, herein the Union, filed a brief in opposition. By telegraphic order dated August 10, 1981, the Board granted the Employer's request for review and stayed the scheduled election. Thereafter, the Employer and Union each filed a brief on review. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has dele- gated its authority in this proceeding to a three- member panel. The Board has considered the entire record in this case with respect to the issues under review, I The Employer contended that branch captains and field sales repre- sentatives as well as circulation department employees responsible for the "Retail" zone, a 23-county area, should be included in the apppropriate unit. The Acting Regional Director did not include any of these employ- ees in the appropriate unit. The Employer did not seek review of his de- cision as to these employees. The Employer's circulation department also has a third geographic division for the remainder of Georgia and out-of- state sales. Neither party sought the inclusion of these employees in the appropriate unit. 263 NLRB No. 81 including the parties' briefs on review, and makes the following findings: The Employer is a Delaware corporation with an office and place of business in Atlanta, Georgia, where it is engaged in printing and publishing daily and Sunday newspapers, the Atlanta Constitution in the morning, and the Atlanta Journal in the eve- ning. The Union seeks an election among a pro- posed unit of circulation department single copy sales employees who work in the "Metro" zone.2 The single copy sales department is responsible for the distribution and sale of newspapers, primarily through news stands, retail outlets, and coin-oper- 'ated racks, though also by person directly to cus- tomers where volume is high or where theft prob- lems interfere with the profitability of coin-operat- ed vending machines. The "Metro" zone single sales department con- sists of a manager, 3 zone managers, 11 district su- pervisors, 55 route managers, 52 Constitution dis- tributors, 96 jumpers, 38 sales helpers, 17 day-off and vacation relief employees, and 1 platform helper.3 The Union contends that the appropriate unit should include the route managers, Constitu- tion distributors, jumpers, sales helpers, relief em- ployees, and platform helper. The Employer con- tends that the route managers should be excluded on the basis that they are supervisors within the meaning of the Act. The job description for route managers includes: Responsibilities 1. Responsible for development of his/her em- ployees. Can effectively recommend to hire or fire said employees. 2. Administer all personnel functions a. recruiting applicants for all positions b. training of all employees c. implementing company policy and pro- cedure d. approve all payroll time slips and start forms 2 The "Metro" zone is an administrative division consisting of Cobb, Gwinnett, Fulton, DeKalb, and Clayton Counties. s Both parties focused on the task of newspaper distribution in defining what group of employees constitutes an appropriate unit. Of the zone managers, only one, anld of the district supervisors, only seven (with one of the positions vacant at the time of the hearing), have responsibilities related to newspaper distribution and employees involved in that task. The parties stipulated, and the Acting Regional Director fould, that Cir- culation Director James Bustraan, Sales and Marketing Director John Schuler, Single Copy Department Manager Rick Gebenstaben, Zone Managers Robert Wadick and Brian Moore, and Single Copy Depart- ment Supervisors Herman Haynes. Billy Shumnate, Nancy Dean, Bill McGee, Terry Allen. and Joe Young ale supervisors withlin the meaning of the Act and excluded from the unit. 632 ATLANTA NEWSPAPERS Their principal work consists of the distribution of the two afternoon editions of the Atlanta Journal. They also coordinate the work of Constitution dis- tributors, jumpers, and relief employees to ensure that all editions are distributed according to sched- ule. Generally speaking, each route manager works in conjunction with one distributor and one or two jumpers. Distributors distribute the morning paper, the Atlanta Constitution. Jumpers ride along with distributors and route managers, collate inserts when necessary, and jump on and off the vehicle to put newspapers in vending machines if machines are part of the route. Sales helpers also work under some route managers. They sell newspapers direct- ly to consumers where volume is high or where theft problems interfere with the profitability of vending machines. If a distributor or jumper is absent, that route's manager assumes the absent em- ployee's responsibilities. 4 Route managers work 6 days a week and are paid on an hourly and commission basis. Distribu- tors, jumpers, sales helpers, and relief employees are hourly paid, part-time employees. The Employ- er sets the rates of pay and limits distributors' and jumpers' hours to 25 hours a week. Route manag- ers may not authorize overtime for any employees. The Employer allocates each route manager 30 hours' worth of pay for jumpers but route manag- ers decide how to assign and distribute those hours. Route managers sign their part-time assistants' ti- mecards. Route managers get jumpers and distributors from various sources. Sometimes the Employer provides jumpers or distributors for route managers and sometimes route managers find their own. Generally, route managers interview jumper and distributor applicants and send their applications to the Employer's office. Some route managers notify the Employer when they start using a new jumper or distributor while others wait for the Employer's approval before assigning work to new employees. If a route manager finds a jumper or distributor un- suitable or his or her performance unsatisfactory, the route manager either notifies the Employer, which then discharges the employee, or the route manager may accomplish the discharge and then inform the Employer. Route managers also warn and discipline jumpers and distributors who are late, fail to show up for work, or otherwise per- form inadequately. Route managers sometimes grant time off to jumpers and distributors and 4 The other employees in the unit are relief employees and the plat- form helper. Day off and vacation relief employees substitute on a regu- lar basis for other employees to cover their routes during scheduled time off. The platform helper works at the Employer's main plant helping with bulk distribution. Route managers have less interaction with these employees than with distributors, jumpers, and sales helpers. allow them to rearrange their hours. There is some evidence that route managers settle employee grievances. The Acting Regional Director cited The Wash- ington Post Company, 254 NLRB 168 (1981), as sup- port for his finding that although route managers hire their part-time assistants that did not establish 2(11) supervisory status because hiring them re- quired no discretion or independent judgment. The Washington Post is distinguishable in that there the route managers selected their assistants from a list provided by the employer, whereas here the route managers often exercise discretion in advertising for, locating, and selecting their assistants without Employer assistance. The Union contends that the limits the Employer imposes on the route managers' discretion indicate they are not utilizing independent judgment in car- rying out their job. The Union cites as examples of the route managers' lack of discretion that route managers may not assign more than 25 hours a week to any one jumper, as well as their inability to set wages or award raises. However, as noted above, there are numerous instances where route managers effectuate personnel actions with regard to their jumpers and distributors, including hire, discipline, and discharge. Further, such personnel actions are often taken without securing the Em- ployer's prior approval. Upon the foregoing, contrary to the Acting Re- gional Director, we find that route managers are supervisors within the meaning of Section 2(11) of the Act. Although some route managers do not ex- ercise the full extent of their authority, it is well es- tablished that it is the possession of supervisory power rather than the exercise of that authority that determines whether particular employees are supervisors. NL.R.B. v. Brown & Sharpe Manufac- turing Company, 169 F.2d 331 (Ist Cir. 1948); Hook Drugs, Inc., 191 NLRB 189, 191 (1971). We are sat- isfied that the Employer's route managers have the authority to hire, discipline, and fire their assistants, and that the exercise of that authority requires use of their discretion and independent judgment. Thus, we find the route managers are supervisors within the meaning of Section 2(11) of the Act and that the Acting Regional Director erred when he included them in the appropriate unit.5 b At the hearing, the Employer requested the Acting Regional Direc- tor to conduct a collateral investigation into the validity of the showing of interest submitted in support of the petition because it claimed that su- pervisors solicited authorization cards. It based this assertion on route managers' alleged involvement in the union campaign. The Acting Re- gional Director determined, albeit erroneously, that the route managers are not supervisors; for that reason he did not respond to the Employer's request for such an investigation. In view of our determination herein the Continued 633 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer also contends that the appropriate unit should include its home delivery distributors. Home delivery distributors are part-time, 7-day-a- week, hourly paid employees who deliver newspa- pers to home residences that have paid-in-advance subscriptions. Their supervision is entirely separate from all employees in the unit and the internal or- ganization for home delivery distribution differs from that of all those in the unit. We adopt the Acting Regional Director's finding on this issue and do not include home delivery distributors in the appropriate unit. Regional Director must reconsider the Employer's request. Our Direc- tion of Election herein is conditioned on the Regional Director's determi- nation that the showing of interest continues to be valid. Accordingly, we find the following unit appro- priate for collective bargaining: Constitution distributors, jumpers, sales help- ers, day-off and vacation relief employees and the platform helper employed by the Employ- er in the five-county "Metro" Atlanta, Geor- gia, area including Cobb, Gwinnett, Fulton, DeKalb and Clayton Counties, but excluding all other employees, office clerical employees, professional employees, guards, and supervi- sors as defined in the National Labor Relations Act. [Direction of Election and Excelsior footnote omitted from publication.] 634