264 NLRB 270
Kenosha News Publishing Corporation
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenosha News Publishing Corporation, Employer-
Petitioner and Kenosha Newspaper Guild, Local
#159, TNG, AFL-CIO. Case 30-UC-173
September 29, 1982
DECISION ON REVIEW AND
CLARIFICATION OF BARGAINING
UNIT
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 22, 1981, the Regional Director for
Region 30 issued his Decision and Order Denying
Petition for Unit Clarification in the above-entitled
proceeding in which he found, contrary to the Em-
ployer's contentions, that the area editor,' sports
editor, Horizons editor,2 and chief photographer
were neither supervisory nor managerial employ-
ees, and he dismissed the unit clarification petition.
Thereafter, in accordance with Section 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 Regional
Director's decision on the grounds that, in finding
the four disputed individuals not to be supervisors,
he departed from precedent and made findings of
fact which are clearly erroneous. The Union filed
opposition thereto.
By telegraphic order dated June 11, 1981, the
National Labor Relations Board granted the Em-
ployer's request for review as to the three disputed
editors and denied it as to the chief photographer.
The parties filed as briefs on review their briefs
previously submitted to the Regional Director.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in
this case, including the parties' briefs, and makes
the following findings:
The Employer contends that the three disputed
subeditors, sports editor James Kornkven, Horizons
editor Elaine Edwards, and area editor Barbara
Colicki, are supervisors as defined in the Act as the
record supports findings that, inter alia,3 the sports
i The area editor is responsible for a section of the Employer's news-
paper which covers events within Kenosha County such as meetings of
city councils, school boards, etc.
2 The Horizons editor is responsible for a section of the newspaper
which covers family-oriented news. This section once covered "society
news," was later changed to cover "women's news," and now covers
news and events of general interest to members of the community
I The Employer also contends that the disputed editors control em-
ployee work hours, and can therefore effectively terminate part-time em-
ployees and determine the amount of overtime worked by full-time em-
ployees. However. as it appears that hours of work are generally dictated
by the duration of scheduled events which employees ciove r and. as
found by the Regional Director, the Employer has a policy of minimizing
264 NLRB No. 50
editor has authority to hire part-time employees
working in his department, the Horizons editor ef-
fectively recommends the hiring of employees in
her department, and all three disputed editors re-
sponsibly direct employees in their respective de-
partments.
The Employer publishes a daily newspaper, The
Kenosha News, and a weekly advertising supple-
ment, The Courier. The Union's existing bargaining
unit covers all employees in the Employer's edito-
rial department, excluding supervisors as defined in
the Act. The record reveals that the editorial de-
partment has 25 full-time and 9 part-time employ-
ees. Reporting to the publisher, editor Dick Martin
is responsible for the overall supervision of the edi-
torial department. The managing editor shares
overall supervisory responsibility with Martin and
acts for him in his absence. The edtiorial depart-
ment has nine subdivisions, each headed by a
subeditor. Three of the subeditors, the city, week-
end, and news editors, are excluded from the bar-
gaining unit as agreed-upon supervisors. The above
five editors with admitted supervisory authority are
referred to in the record as exempt editors.4 The
other six subdivision heads have been included in
the unit, and, as indicated above, the supervisory
status of three of them is here at issue.
Sports Editor
As found by the Regional Director, sports editor
James Kornkven has held his position since 1963
and at present works with two other full-time em-
ployees and two or three part-time employees.
overtime hours which is closely monitored bh the editor, Dick Martin,
vre find ample record suppport for the Regional D)irector's finding that
the assignment of overtime by the disputed editors is routine. The record
does reveal one occasion, approximnately 3 years ago, when area editor
Colicki stopped assigning work to a newly hired part-time employee,
Tierny. Editor Martin, who hired Tierny, told Colicki that she could
assign work to Tierny if she needed him Colicki gave Tierny several
work assignments, but thereafter ceased assigning him further stories We
find no merit in tile Iislployer's contention that this incident illustrates
Colicki's power to terminate part-time employees, and thus her supervi-
sory status We note that there is no cvidence that Tierny worked only
on stories for Colicki, or that Colicki had authority to formally dismiss
Tierny from employment
In ally event. even assuming that this incident
amounted to the exercise of the posser to terminate a part-time employee,
we find that this single incident which occurred about 3 years agi is in-
sufficient to establish supervisory status Rather. Colicki's action appears
to be an isolated incident which does not provide a sufficient basis for a
finding of supersisor5 status
Willis Shaa' FrozeLn Food Express, Inc.. 173
NLRB 487 (196f)
The Employet also asserts that these editors are all
responsible for the content of their particular section of the newspaper.
including the determilation of v hich stories should he covered and who
would cover them, and how much wire cops would be printed Howev-
er, for the reasons stated by the Regional Director, these responsibilities
do not constitute indicia of either supervisory or managerial authority,
hut are elements of "new s judgment" recosgnized by the Board as profes-
,ional expertise rather than sLipersisors authority, The Washington Post
Company. 254 NlRB l68 (19811
It is not clear from the record what an exempt editor is The record
irLdtates olly that subeditors must have authoriwltion from an exempt
eduilor to have photographs t Ikel inl coiluncti[ n vsith stories written for
their sectionls
270
KENOSHA NEWS PUBLISHING CORPORATION
Kornkven testified he has no authority on his own
to hire full-time employees. However, the record
reveals that he has hired all three of the part-time
employees now working with him on the sports
section. Randy Donais, hired by him about a year
ago, usually works 3 days a week from 6:15 until
about 10 p.m., part of the time in the office and the
rest of the time covering sports events. Kornkven
referred to Donais as a regular part-time employee,
and to the other two part-time employees working
with him as "stringers."' One of the latter, Brad
Weinstock, had previously worked full time for
Kornkven for 10 to 12 years and had left to work
in his own business, but 4 or 5 years ago Kornkven
engaged him to cover games; the other, Jean
Tenuta, hired by Kornkven about 5 years ago, had
previously worked for the Employer as a part-time
employee in the office.
The above evidence does not support the Re-
gional Director's conclusion that Kornkven's exer-
cise of hiring authority with regard to part-time
employees has been sporadic. To the contrary, it
appears from the record that Kornkven hired all
the part-time employees who work for him. Ac-
cordingly, on the basis of his exercise of authority
to hire part-time employees, we find that Kornkven
is a supervisor as defined in the Act.
Horizons Editor
Elaine Edwards, Horizons editor, has held her
position since 1950. At present she works with two
other full-time employees and one regular part-time
employee. The Employer asserts that Edwards ef-
fectively recommended the hire of four full-time
employees (three of whom were hired and one de-
clined the offer) and one part-time employee cur-
rently working in her section. However, the record
does not support the Employer's assertions.
Martin, describing the hiring process, testified
that, after examining applications received in re-
sponse to an advertisement, he gave Edwards the
ones he considered the top applicants to look over,
and the one which they mutually agreed would
perhaps make a good employee was interviewed by
both of them. Afterwards, Martin stated, he asked
Edwards if she was interested in "hiring" the par-
ticular applicant, and, as she was, he offered that
applicant the job. As to the present part-time em-
ployee, Joanne Remberg, Martin testified Edwards
came to him and said the workload in her depart-
ment was so heavy she would like to add another
person, and that, since Remberg had worked for
the Employer in the past, she would like to have
her come in I day a week to do weddings and en-
Kornkven defined a "stringer" as a part-time employee who did not
saork ill the office but
as assigned sole!l
to cos er sports eernts. It ap-
pears thai th
thee trilngers are coL ered h. the exlsilng contract
gagements. Martin approved her request. Martin
also testified he would not hire or transfer anyone
into Edwards', Colicki's, or Kornkven's depart-
ments over their objections. Edwards testified that
Martin did the hiring or made the transfers of em-
ployees for her department, but that she was asked
her opinions as to their qualifications and whether
they would fit in.
We are not persuaded from our review of the
record that the participation of Edwards in the in-
terviewing and hiring of applicants for employment
confers upon her authority effectively to recom-
mend hiring. Martin's policy of not hiring or trans-
ferring anyone over the subeditors' objections does
not confer on the subeditors authority, in the inter-
est of the Employer, to hire or transfer employees
or to effectively recommend the same. Rather, in
our opinion. the subeditors' role under Martin's
policy is to act principally in their own interest to
ensure the suitability of the applicant as a working
companion in a small department. and thus pre-
serve harmonious working relationships. See Willis
Shaw Frozen Food, supra at 488. While Edwards ap-
pears to have selected Remberg as a regular part-
time employee, she did so only after the approval
of Martin and in large part on the basis of Rem-
berg's previous employment by the Employer. In
any event, Edwards' hiring of Remberg appears to
have been an isolated case and thus not a predicate
for finding Edwards to be a supervisor.
Alleged Responsible Direction by Colicki, Edwards,
and Kornkven
The Employer also argued that all three disputed
subeditors are supervisors within the meaning of
the Act because they responsibly direct other em-
ployees. However, the record shows that they
assign stories or areas of news coverage to employ-
ees in their departments generally in an attempt to
accommodate individual interest, which in some
cases involves taking assignments themselves, and
often assignments of certain specialized areas are
routinely made to the same persons unless work-
load or some other reason, such as the policy of
minimizing overtime, requires assignment to an-
other.6
Although the Employer asserts that these
subeditors require employees to rewrite stories,
there is no evidence that this has ever happened.
The record indicates that the disputed editors edit
the stories of others in their departments and, if re-
writing is necessary, they either do it themselves or
another employee in the department does it. Based
R Area editor Colicki testified thit ste checks with reporters to see if
they would like to coixier certain rsents and to coordinatle schedules Ito-
rizons editor Edssards testified that a.ssignmilnllt
outside otf regular duties
are made to reporters after checking wuith the reporter to see if they
s would like to and hase time to coiser tile stor%
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the foregoing, we find no support for the Em-
ployer's contentions that the disputed subeditors re-
sponsibly direct employees or make assignments
which require the exercise of independent judg-
ment. 7
Accordingly, as we have found, for the reasons
set forth above, that the Horizons editor is not a
supervisor as defined in the Act, and we have
found wanting the only possible indicia of supervi-
sory authority possessed by area editor Colicki, we
conclude that both are statutory employees and
affirm the Regional Director's denial of the Em-
ployer's request that the unit be clarified to exclude
them. However, in view of our finding that sports
editor Kornkven is a supervisor as defined in the
Act, the unit is clarified to exclude him.
MEMBER ZIMMERMAN, concurring in part and dis-
senting in part:
I agree with my colleagues that sports editor
James Kornkven is a supervisor within the meaning
of Section 2(1) of the Act, and that he therefore
should be excluded from the bargaining unit. How-
ever, contrary to my colleagues, and for the rea-
sons set out below, I find that Horizons editor
Elaine Edwards and area editor Barbara Colicki
are also supervisors within the meaning of the Act,
and that they should likewise be excluded from the
bargaining unit.
We have found sports editor Kornkven to be a
supervisor on the grounds that he has authority to
hire employees. Indeed, he actually exercised his
hiring authority twice about 5 years ago, and once
again about 1 year ago.
But just as we have found Kornkven to have
hiring authority, so too do I find, contrary to my
colleagues, that Horizons editor Edwards has such
authority, or at the very least the authority effec-
tively to recommend hiring, so as to constitute her
a supervisor and exclude her from the unit.
The Employer's editor, Dick Martin, testified
that in April 1977 he screened several applications
for an advertised full-time job opening in Edwards'
department, and then gave the best of the applica-
tions to Edwards for her review. Thereafter,
Martin and Edwards "decided mutually" that ap-
plicant Nancy Curtis should be interviewed for the
position.
At the interview, Martin first met briefly with
Curtis to discuss general matters. Then Edwards
spoke with Curtis about the specific requirements
of the position for which she was being inter-
viewed. Martin, Edwards, and Curtis then went to
lunch together.
7Ihe
)'cww
s-Jnrolirml (oCipuaty. 227 NI.RI
568, 570 (1976): Suburban
,%'cr-ppcpr Pthl lattontm. Inc, 226 Nl RB 154. 15t (1976)
Later, Martin asked Edwards whether she was
interested in hiring Curtis and Edwards replied that
she thought Curtis would make an excellent em-
ployee. So, according to Martin, "on Elaine's [Ed-
wards] recommendation,
I offered the job to
Nancy [Curtis] and she took it."8
Subsequently, in early 1978, there was another
full-time job opening in Edwards' department. Ac-
cording to Martin, Edwards was in favor of offer-
ing it to one particular applicant, who was offered
the job, but declined the offer. Thereafter, Jean
Korten was hired to fill the opening in Edwards'
department. According to Martin, the procedures
used in the hiring of Korten were very similar to
those used in the hiring of Nancy Curtis, as de-
scribed above. Specifically, following an interview
and a trip around town with Korten, Martin asked
Edwards if she wanted to hire Korten; Edwards
replied that she did, and that "she thought [Korten]
would work out fine." Martin thereafter offered
Korten the job, and she accepted. 9
In early 1980, another full-time position became
available in the Horizons department. Martin asked
Kay Jones, at that time a part-time employee in an-
other department, whether she would be interested
in working in the Horizons department. Jones said
she might be interested, and Martin told her to
speak with Edwards. Jones and Edwards met, and
Martin subsequently asked Edwards whether she
thought Jones would be a good employee. Ed-
wards said yes, and told Martin that she thought
Jones ought to be hired for the position. She
was. 10
There is also a part-time employee in the Hori-
zons department, Joanne Remberg. Martin testified
that Edwards told him that she would like to add
another person in her department due to an in-
creased workload involved in covering weddings
and engagements. Edwards told Martin that Rem-
berg had previously worked for the Employer, and
that Edwards would like to hire her on a I-day-
per-week basis, to do just weddings and engage-
ments. According to Martin, Edwards subsequently
8 In her testimony about the hiring of Curtis. Edwards first acknowl-
edged that she had recommended that Curtis be hired, and then testified
"Well, I don't think I would call it a recommendation I gave my opinion
which was that I thought she was fine."
9 In her testimony about the hiring of Korten, Edwards acknowledged
that, following Korten's joint interview with Martin and herself, Martin
asked her whether she liked Korten, whether she thought Korten could
fit in and be a good reporter. Edwards replied affirmatively, and Korten
was hired. In this respect, Edwards. like Martin. testified that the proce-
dures followed in hiring Korten were similar--"the same thing"--as
those used in hiring Nancy Curtis.
i' In her testimony about the hiring of Jones. Edwards stated that she
did not sit in on Martin's interview with Jones. and that "I didn't make
the decisions. Other than my opinion was requested."
272
KENOSHAX N[W'S PUBI SHING C(ORP)RAT1ION
hired Remberg on that basis. " Subsequently, ac-
cording to Martin, Edwards has employed Rem-
berg on a more expanded basis, as a substitute for
absent full-time members of the Horizons depart-
ment, or when the wvorkload in the department has
become particularly heavy.
Martin candidly acknowledged that he had the
final authority to hire employees in the overall edi-
torial department, encompassing, inter alia, the
sports, area, and horizons departments under dis-
cussion in the instant case. 12 Martin further testi-
fied that, while new employees are hired fairly in-
frequently by the Employer, when hiring is done
the departmental editors participate in the inter-
viewing process and thereafter make recommenda-
tions to Martin. Although Martin is not required to
follow such recommendations, he has always done
so, on the theory that he would not hire anyone
whom the departmental editor did not want in his
or her department; in this regard, he has never re-
fused
the
recommendation
of
a
department
editor. 3
Based on all of this substantial evidence of the
repeated exercise by Edwards of her authority ef-
fectively to recommend the hiring of employees, '4
I find her to be a supervisor within the meaning of
Section 2(11) of the Act, and thus not properly in-
cluded in the appropriate bargaining unit in this
case. ' 5
" In her tes limon~ about the hiring of Reimbelrg.
[d
lard, ackno'el-
edged that she had asked Marlin if Rerlberg coiuld be hired rto ssrk part
time. (n weddings ;and ltegagemientr
,2 Or. as N.Marlill himself more aceuraielt l
sIaltes "I
s.ould sa5
I do
ha'se Ihl filnal authoril
) It oerride ansone els.', decoinin
ion hillng
:
In retecting this is clear exidence of Ihe esercise i'f Fdssards' all-
thority effectlisely to recommend hiring, my colleagu,
etuphemistlically
refer to Martinl's potlie 5 or notl hilring .anly)Ie oll er anl editor's. objection a,
simply a case of an editor a!ilig "printipall,
in their oIll interest 1o
ensure the suitabilit, of the applicant as a .inking
cormpantion in a small
departmenti
and thus preserve harmonimous
orking relalionships " lere.
my colleagues rel'
on Wi//t, Shu/w Ir.rozn Food x i.prei.
In,.
173 NI RH
487 I 1968)
Hut su.h reliance is clearls misplaced on the facl,
of this case
In H'illis Shat,. two-man coast-io-clast truckdrisig learn, droice long
hauls of 12 23 da)s' diritur; n
i
l Ih
designated head 1drixcrs ofI tIlese tsAw-
man teams activels engaged Ili the recruitmenil if their assistant drisers.
l'he employer permitted the head dri ers to choose their assistants front
ans available employees ont the hbasis of "comnipaliihl."''
It is clealr that Ille special. unique nleed sshlih exisled il Wil/l
S'lih, for
a "harmonious relationship h.tuseenl lbead driscr,) arld their assistants
during the lengthy periods ,shen the
s
will he alhrre on the truck arid
asas from their homes arid friends" simpls docs nolt exist ill the instanl
caie Nor does, accordimglN. thie spei;al hiring emphasls on personall com-
patibllitl
between drisers s\ hich existed in
'ilil
n l
hu
its, the exercise
bs Eds. ards of hi'r antllorits eflecti.eil
tIo rcillnnirend the hiring of staff
journalists on a da;il)
lne.sspapel can ha;rdlN hb equared ssl:h the exercise
by the he:ld drlxers il I i//li Sha4 of lheir preriogatlisc to nliphasize per-
sona.l compatihitiy
inl the scrtlcon of their coasi-t,,
-c'
s
!
i ii tll
ontim-
paniurns
,4 Which eidicnc e is, icident.alll, similar il mans respects to
lhe c i-
delce relied *i11 bh nlm' coletluei',
i, wecl
l rilLe toi f/ild spores edilor
Korilk.ren tl he a
lpe r
xr isor.
'" In adddition Ii eil;lhlishing
ihait FdIsarlds ha
Ihs aitltrhorii
(ffectlx c-
1) to recommend
I
he
h
lrieg if crniptole-,. Ilii rexuid aldso -csi Wlslish s thIa
[i\siards has lil e atlthe irtl
hril
,sl'r
'.,n rk a.'.issr
r renrliniTe, and eftlecie
-
I also disagree w ith my colleagues' conclusion
that area editor Barbara Colicki is not a supervisor.
According to editor-in-chief Martin, Colicki de-
termines which events are newsworthy, so as to be
covered, and she then assigns three employees in
her department to cover those events.
My colleagues contend that Colicki's exercise of
her authority to assign work to, or direct the activ-
ities of the, employees in her department is not
done with responsibility or in the exercise of her
independent judgment. But the record evidence is
to the contrary.
Martin testified that Colicki determines which
events will be covered, on the basis of how many
reporters she has available, as well as how much
newspaper space she has available-in addition, of
course, to her assessment of the newsworthiness of
any particular event. Thus, according to Martin,
"The only limit she has [with respect to the making
of assignments] is to exercise her own judgment as
to what should be done, including assigning her-
self."
Neither of the part-time employees in Colicki's
department work a set minimum number of hours
per week. Thus, Colicki, by virtue of making spe-
cific work assignments, also effectively determines
how many, if any, hours per week these employees
work.
Indeed, Colicki exercised this authority effective-
ly to terminate the employment of part-time em-
ployee Gene Tierny, to whom, because of his gen-
erally poor performance, she simply stopped as-
signing any work at all. Tierny had been assigned
to
Colicki
by
Martin.
Because
Colicki
found
Tierny's work to be unsatisfactory, she assigned
him no further work and his employment was
eventually terminated. '
ly reconimend the gralting
t' time off all further inlldiia of her status as
aI supec'sior
]" k'i
clleagues, ointitt that (C oliki's decision li
slop assigring
work to part-timer Tiern . thus eflectlivel
terminating his emplo!ment.
does not illustIrale Colicki's pos.er to terminate parl- tme empnliheers
ut
there is no better illustlration ofr ieIC's lauthortll
e'fe. ill,
Sc
Il
cri llinate
lhe empl)lment of an
:
emplobse,
part-rime (or otheriie.
ihatn Ihte aciual
exercise of that authority. as in this case
Neverlheless. mns colleagues
relect the significance ,of this esidence itf Colicki's superlssro
authority.
on the basis thit there is no indication !hba
iernyI worked only o)t stories
for C olicki. or th at Collcki had authhorit)
to ftrmnia/i, dismiss Tiern.
front
employmeini
As to the I
nflrler grounild the lncoilHrovered
l
estimin) of
Martin is lhat
I[Tier',] sas assignled lo [Co hikic
I
told her thait she , ouild he able
to use him as mnnch
as she needed to It, see how
he sv orked out: see
shlat kind of a reporter he vi ould make as a part-tilner.
and shat
kind of in
cmnplhoee
As .a result of lisurffclreiiI
ql.Iartit
iand
qualiiil tf
xitork] \is ( '. hiki lecitded li i to
uste
hint
Martin als
t etfivel
rilar [ierlr
ss as an emrplisee o.r s horn Co Ic kl ciould
assign il
rk
alad !hail
it sits Icr decisiOll ti
.ease doing
r s.
"hIli
direc-
Is resllted in the
IeSllnl
hi t is emplhmint
sm
Ierti s,.isi not reassigned
else.shert ..ithin the
rConrpairis, men
Ihir(lgli. aicording
to Martin,
''Anonie
miilll hics
use(d irll is ;i part-rlmi
r cho ;
a .lncd tio'
I here is
( ntimdri
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colicki is also responsible for assigning overtime
work to the employees in her department, as well
as assigning photographers (who do not work in
her department) to particular photographic respon-
sibilities in conjunction with stories she plans to
run in the paper. (The only qualification on Co-
licki's authority to assign photographers is that she
must check with one of her superiors to insure
there is no duplication of assignments.)
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SC'u(I-III.
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k'sbee dis1liMlllgCd
h
o11i ('ohiki's th1'L''
u'l-
Based on the record evidence outlined above, I
find that Colicki has the authority to assign em-
ployees, responsibly to direct them, and effectively
to discharge them, all in the exercise of her inde-
pendent judgment. Accordingly, I conclude that
she is a supervisor within the meaning of Section
2(11) of the Act, and that, like her fellow editors
Kornkven and Edwards, she should be excluded
from the appropriate bargaining unit in this case.
il!ia'
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Il, I.Iethod)l hl \v15h (Colski
..'fl'ilixIl
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in dINi
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lrom Iis
'ft, illd it Il t
lhus il)ppost ic
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Il'PIiix'IIM;hIClt
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w
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ud lh L
A1%S1%1;1111,
lu1lp;lult
'1 tOitiltlUig thelir
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rixiiig dutipip
hlt c
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ld
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lll 1t}ltS I[
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ie
it
it dt.i
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I1t keep dtlltng .. t;illlltIl Itt;ksthl;bl
hbe triiildt
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ci1 . ill Ih
111 illlStillli
.~d
any respontsible driver swould be fourced to take
It is in an) event not
comparable to area editor Colicki's determinationl
that Tierny did not
have the ' riting skill or ability to be a reporter.
274