Phoenix New Times, LLC

370 NLRB No. 84 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Phoenix New Times, LLC and The Newsguild—CWA Petitioner. Case 28–RC–254936 February 10, 2021 DECISION AND ORDER BY MEMBERS KAPLAN, EMANUEL, AND RING On January 21, 2020, the Petitioner filed a petition to represent a unit of employees working at the Employer’s news publication in Phoenix, Arizona. The Employer contended, in part, that the petitioned-for Food Editor, Lauren Cusimano, is either a supervisor or a managerial employee, and that the petitioned-for Fellows are tempo- rary employees who may not be appropriately included in the unit.1 On April 15, 2020, the Regional Director issued a Decision and Direction of Election, finding, in relevant part, that Food Editor Cusimano is not a supervisor or a managerial employee, and that the Fellows may be appro- priately included in the unit because they are temporary trainees who share a community of interest with the other petitioned-for employees. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board’s Rules and Regulations, as amended, the Employer filed a request for review solely with respect to the supervisory or managerial status of Food Editor Cusimano and the in- clusion of the Fellows in the unit. The Petitioner filed an opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Employer’s Request for Review of the Regional Director’s Decision and Direction of Election is granted, in part, as it raises substantial issues warranting review. Having carefully examined the record,2 and for the reasons explained below, we find, contrary to the Regional Direc- tor, that the petitioned-for Fellows are temporary employ- ees who may not be appropriately included in the unit. We deny review in all other respects.3 Accordingly, we re- mand this case to the Regional Director for further appro- priate action consistent with this decision. 1 The Employer further contended that several more of the petitioned- for classifications constituted either supervisory or managerial employ- ees, including the Editorial Operations Manager, News Editor, Culture Editor, Social Media Editor, and Creative Director of Print, and that, in the alternative, these classifications did not share a community of interest with the petitioned-for Staff Writers. The Employer has not sought re- view of the Regional Director’s findings on those contentions. 2 See Sec. 102.67(e) of the Board’s Rules and Regulations (the Board may, in its discretion, examine the record in evaluating the request for review). 3 We find that the Employer failed to introduce sufficient evidence to meet its burden to prove that Food Editor Cusimano is either a supervisor I. FACTS The Employer publishes the Phoenix New Times, a news-media publication with both an online platform and a weekly print edition. A combination of freelancers, Fel- lows, and Staff Writers produce the content that is pub- lished in the Employer’s print edition and on its website. The Employer is owned by Voice Media Group, a digital- media company that owns and operates six news websites in different media markets around the country, including the Employer’s publication. The Employer employs Fellows through the corporate Voice Media Group fellowship program. Journalism stu- dents or recent graduates of a journalism program apply to the fellowship program through the corporate Voice Me- dia Group website and, if selected, are assigned to one of the six Voice Media Group publications, including the Employer’s newspaper. Fellows write three stories per week and are paid $500 per week. The Fellows submit their pitches and articles to the News Editor, using the same procedures as the petitioned-for Staff Writers and undergoing the same review and editing process leading up to publication. Additionally, the Fellows and the Staff Writers receive the same benefits; work in the same loca- tion; use the same break rooms; attend the same weekly staff meetings on Mondays; and report directly to the News Editor, who reports to the Editor in Chief. It appears that, at the time of the hearing, only two Fellows were working for the Employer’s publication. The fellowship officially lasts for 6 months, but the Em- ployer or another Voice Media Group publication has oc- casionally extended it, especially if the Fellow shows promise and there is a “reasonable expectation” that a per- manent Staff Writer position will open up soon. An ex- hibit introduced by the Employer, which lists all the Fel- lows who have worked at any of the Voice Media Group publications since 2013, indicates that, of 27 Fellows, only five have had their fellowships extended. These exten- sions lasted for fixed periods ranging from 3 weeks to 3.5 months. A sixth Fellow accepted a second fellowship af- ter completing their first fellowship. At the time of the hearing, one of the two Fellows then with the Employer or a managerial employee. Regarding Cusimano’s alleged supervisory status, the Employer relies heavily on Henry Colder Co., 163 NLRB 105 (1967), but it has not presented evidence of supervisory authority com- parable to the facts of that case. Similarly, regarding Cusimano’s alleged managerial status, the Employer’s reliance on Republican Co., 361 NLRB 908 (2014), is unavailing in the absence of record evidence that Cusimano has authority to determine the Employer’s editorial positions or otherwise control its editorial content in the manner that the newsroom editor there did. Rather, the evidence presented by the Employer depicts Cusimano’s duties as more analogous to those of sub-section editors who were found not to be managers in Washington Post Co., 254 NLRB 168 (1981). 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was working on an extended fellowship, which had been extended for 3 months. Fellows do not compete against each other for positions, as there is no guarantee that any position will be available when they complete the program. However, if a position is available at any of the six publications under the Voice Media Group umbrella, Fellows who meet Voice Media Group’s standards get first priority for entry-level posi- tions after completing the program. Since 1999, approxi- mately 64 percent of the Voice Media Group Fellows have eventually been hired on as Staff Writers at one of the Voice Media Group publications. More recently, how- ever, the Fellows’ chances of continued employment are lower: since 2013, only 11 of 27 Voice Media Group Fel- lows (approximately 40 percent) have been hired at one of the Voice Media Group publications, with only six (22 percent) going to the Employer. Of the nine Fellows who completed fellowships at the Phoenix New Times, four (44 percent) have gone on to work as Staff Writers, all of them at the Phoenix New Times. In their testimony, the two Fellows then with the Employer acknowledged that while they have “reason to be hopeful” that they would obtain a permanent position, they understand that there is no guarantee that a spot will open up. II. ANALYSIS “It is established Board policy that a temporary em- ployee is ineligible to be included in [a] bargaining unit.” Pen Mar Packaging Corp., 261 NLRB 874, 874 (1982). To determine temporary-employee status, the Board ex- amines whether “the employee’s tenure is finite and its end is reasonably ascertainable, either by reference to a calendar date, or the completion of a specific job or event, or the satisfaction of the condition or contingency by which the temporary employment was created.” Marian Medical Center, 339 NLRB 127, 128 (2003). Even though temporary employees may share terms and condi- tions of employment with permanent employees, they will be excluded from the bargaining unit if they do not have a reasonable expectation of reemployment, such as when they are employed for a brief period of time and given no promise of permanent employment. See, e.g., United Tel- econtrol Electronics, Inc., 239 NLRB 1057, 1057–1058 (1978); E. F. Drew & Co., Inc., 133 NLRB 155, 156–157 (1961); Sealite, Inc., 125 NLRB 619, 619–620 (1959); In- dividual Drinking Cup Co., Inc., 115 NLRB 947, 949 (1956). Here, the Regional Director concluded that the Fellows may be appropriately included in the unit because they “have a vested interest in the terms and conditions of Staff Writers’ employment,” and because “the Union has a vested interest in representing the interests of Fellows as prospective members of the profession and potential future permanent employees.” In this regard, the Regional Director observed that over 60 percent of the Voice Media Group Fellows have gone on to permanent positions at a Voice Media Group publication, including “many” who remained at the Phoenix New Times itself. The Regional Director further found that the Fellows are “comparable to apprentices or medical residents,” who are frequently in- cluded in bargaining units. See, e.g., Boston Medical Cen- ter Corp., 330 NLRB 152 (1999); General Electric Co., 131 NLRB 100 (1961). We disagree with the Regional Director’s conclusion. There is no dispute that the Fellows here have a “finite” tenure with a “readily ascertainable” end date. See Mar- ian Medical Center, 339 NLRB at 128. Although the Re- gional Director relied on several cases in which medical residents or apprentices were appropriately included in bargaining units, those cases are distinguishable. For ex- ample, although the Board found, in Boston Medical Cen- ter, that medical residents are statutory employees who may be appropriately included in bargaining units, it ob- served that this holding did not implicate cases where “the issue has been the eligibility of student workers based on community of interest considerations.” 330 NLRB at 161. To the extent that the Board did address the eligibility of the medical residents in Boston Medical Center, it relied on the long tenure of the medical residents to find that they were not temporary employees at all. Id. at 166 (“[T]he Board has never applied the term ‘temporary’ to employ- ees whose employment, albeit of finite duration, might last from 3 to 7 or more years, and we will not do so here.”). Similarly long apprenticeship periods have been present in other cases where the Board has included apprentices in bargaining units, although, generally speaking, these cases have not directly raised the issue of whether the appren- tices at issue were temporary employees—perhaps due, in part, to their lengthy tenures. See, e.g., General Electric Co., 131 NLRB at 104–105, cited by the Regional Direc- tor (apprenticeship period of more than 3 years); see also UTD Corp., 165 NLRB 346, 346 (1967) (4-year appren- ticeship period); Riverside Memorial Chapel, Inc., 92 NLRB 1594, 1595 fn. 5 (1951) (explaining that, under Florida law, an apprentice embalmer must complete “3 years’ apprenticeship under a licensed embalmer” before receiving his or her license, among other requirements). The Fellows here, by contrast, have a finite apprenticeship period of only 6 months. The apprenticeship precedent relied on by the Regional Director is therefore readily dis- tinguishable. Furthermore, the present dispute does not implicate any other of the well-established exceptions to the Board’s general rule against including temporary employees in bargaining units. While some of the Fellows have been PHOENIX NEW TIMES, LLC 3 retained beyond their original term of employment, they were retained for fixed, as opposed to indefinite, periods of time. Cf. MJM Studios of New York, Inc., 336 NLRB 1255, 1257 (2001) (including in a unit “employees origi- nally hired as temporary employees, retained beyond the original term of their employment, and subsequently em- ployed for an indefinite period”) (citing Orchard Indus- tries, 118 NLRB 798, 799 (1957)). Nor is this a case in- volving seasonal or other recurring employees who have a reasonable expectation of reemployment from year to year based on the Employer’s practices, such as hiring from the same labor pool on a yearly basis or incentivizing employ- ees to return annually. Cf. Trans World Airlines, Inc., 211 NLRB 733, 734–735 (1974) (employer provided salary in- crease to employees who returned for a third year, demon- strating that the employer “encourage[d]” and “count[ed] on” repeat employees); The F. A. Bartlett Tree Expert Co., 137 NLRB 501, 502 (1962) (including temporary employ- ees where they were “drawn from the same labor force, [were] employed every year in substantial numbers for substantial periods of time, [were] composed primarily of former employees, and work[ed] with and [did] the same kind of work as the permanent employees”); Tol-Pac, Inc., 128 NLRB 1439, 1440 (1960) (observing that “[t]he Em- ployer has a policy of recalling laborers who have worked for it in previous years,” such that “of the laborers whose names appear on the 1960 payroll, only one of them did not appear on the 1959 payroll”). Although a significant percentage of Fellows may eventually be hired into a per- manent position as a Staff Writer for one of the six Voice Media Group publications, that is fundamentally different from a situation in which the Fellows could reasonably ex- pect to be recalled as Fellows on an annual or regular ba- sis.4 In sum, the Fellows here have a finite, readily ascertain- able tenure of 6 months, with the possibility of only a short and finite extension. Thus, they are temporary employees under Board law, and they do not fall within any of the exceptions to the Board’s general policy of excluding tem- porary employees from units of permanent employees. CONCLUSION For the foregoing reasons, we find that the petitioned- for Fellows are temporary employees who are not appro- priately included in the bargaining unit. Accordingly, we remand this case to the Regional Director for further ap- propriate action. ORDER The Regional Director’s Decision and Direction of Election is reversed in part, and the case is remanded to the Regional Director for further appropriate action con- sistent with this Decision. Dated, Washington, D.C. February 10, 2021 ______________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member _____________________________________ John F. Ring, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4 Along these lines, we further observe that the Fellows are not pro- bationary employees who can reasonably expect that their term of em- ployment will continue after the probationary period if they perform ad- equately. Cf. Gulf States Telephone Co., 118 NLRB 1039, 1041 (1957) (“beginners,” who were without prior experience and worked for 90 days or less, were included in the unit because they had “a reasonable expec- tancy of permanent employment after their trial period”).