Arkansas Gazette Co.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1219 (N.L.R.B. 1975)

ARKANSAS GAZETTE COMPANY 1219
Arkansas Gazette Company and The Newspaper
Guild, AFL-CIO. Cases 26-CA-5016 and 26-
RC-4727
June 30, '1975
DECISION, ORDER, AND DIRECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 25, 1975, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel,
the Charging Party, and Respondent filed exceptions
and supporting briefs. Respondent filed a brief in
reply to the exceptions and briefs of the General
Counsel and Charging Party, and a motion to correct
its own exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
In adopting the Administrative Law Judge's
conclusion that Dee Carithers was a supervisor and
thus not extended protection under the Act for
engaging in union activities, we specifically rely on
his findings that she effectively recommended that
Kendall be transferred into the library and Cart-
wright and Long be hired, and, that she permitted
Cartwright to take a week off for a vacation. Having
adopted those findings, we deem it unnecessary to
determine whether the additional evidence relied on
by the Administrative Law Judge leads to the
conclusion that Carithers enjoyed supervisory status.
In Case 26-RC-4727, we do not agree with the
Administrative Law Judge's conclusion that employ-
ees Bode and Ross do not share a community of
interest with the employees in the unit and that their
ballots in the election should not be counted.
Since he was hired in 1972, Bode has been the
Employer's Washington correspondent, and has
worked out of an office in Washington. In this
position, Bode does not cover the national aspect of
Washington news for the Gazette, but rather focuses
his attention on Arkansas personalities in Washing-
ton and events of specific interest to the people of
Arkansas.
Although he works out of an office which is a
greater distance from Little Rock than any of the in-
state correspondents, his working conditions and job
responsibilities do not appear to be significantly
218 NLRB No. 184
different from these other correspondents, who are
included in the unit. While the other correspondents
are supervised by the state editor or the sports editor,
Bode is supervised directly by the 'managing editor.
However, all four bureaus in which these corre-
spondents work are linked with the newsroom by the
same telecopier, and all sections of the editorial
department have access to Bode's newsgathering
talents through use of this telecopier. As with the
other three bureau writers, Bode follows a routine of
filing his budget with the paper early in the morning
and his copy early in the evening for inclusion in the
next morning's edition of the paper. All of the bureau
correspondents set their own working hours, and
only occasionally visit the newsroom (Bode has
visited Little Rock at the paper's expense at least six
times since October 1972). Although Bode receives a
higher salary than the other bureau correspondents,
and a small cost-of-living differential, all are paid on
a weekly basis (Bode gets his check once a month by
special arrangement). He has the same deductions
from his pay and gets the same fringe benefits as the
other employees.
We believe that A. S. Abell Company, Publisher,
The Sun Papers, et al, 81 NLRB 82 (1949), relied on
by the Administrative Law Judge in sustaining the
challenge to Bode, is distinguishable from the instant
proceeding. There the petitioner who sought to
include the Washington bureau correspondents
agreed that if such employees work primarily in
Washington they should be excluded from the unit.
Thereupon, the Board, without actually dealing with
such a factual situation, stated that if such employees
should be assigned to work regularly in Washington
they would be excluded from the unit. Without
making any general finding concerning the inclusion
of employees in a unit who work on a permanent
basis at a location quite distant from the majority of
the employees in the unit, we find that the foregoing
facts show that Bode has the same community of
interest with the other unit employees as do the other
bureau correspondents who are included. We do not
believe that mileage alone should bar his inclusion in
that unit. We will therefore order that his ballot be
opened and counted.
Similarly, we are of the opinion that Margaret Ross
shares a sufficient community of interest with the
other employees to be included in the unit. For 17
years Mrs. Ross has worked as the historical librarian
at the Gazette. Her duties there have been to
maintain the historical materials which the Arkansas
Gazette Foundation houses at the newspaper's office,
and to provide the news and editorial staffs with any
historical information they may request for use as
background in writing articles. In addition, she fills
requests for historical information from the public
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and, in the past, has written articles for the
newspaper.
Ross has never been an employee of the Founda-
tion. She is, and always has been, paid by the
newspaper, and is carried on the editorial depart-
ment payroll. She gets a weekly salary as do other
unit employees and she enjoys the same fringe
benefits and vacation. Although she is not directly
supervised by anyone and is not required to maintain
any specific hours, her testimony shows that she
works from 9 am. to 5 p.m. daily, 40 hours a week,
and is entitled to overtime pay.
Although she spends a significant amount of her
time preserving and augmenting the historical mate-
rials of the Heiskell collection (the materials housed
at the newspaper by the Foundation), the record
shows that she also works in close daily contact with
the news and editorial employees, and, in working
with them, plays a major role in the production of the
newspaper, as do the employees in the newspaper's
other library who are included in the unit.
For the foregoing reasons, we believe that Ross
shares a sufficient community of interest with the
other employees in the unit to warrant her inclusion
in that unit. We shall therefore order that her ballot
be opened and counted.
We agree with the Administrative Law Judge that
the ballots of Dee Carithers and Betty Turner should
remain unopened and that the ballots of Ralph
Routon and Clay Henry should be opened and
counted, and we shall so order.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The petition in Case 26-RC-4727 was filed on February
26, 1974. The charge in Case 26-CA-5016 was filed on
February 28. A Decision and Direction of Election was
issued in Case 26-RC-4727 on April 12 and modified by
the Board's Decision on Review on August 9. The
complaint in Case 26-CA-5016 was issued on April 18. An
election was held in Case 26-RC-4727 on September 13.
Out of approximately 65 persons eligible to vote, 29 cast
their ballots for Petitioner, 27 cast their ballots against, and
6 cast challenged ballots. A Supplemental Decision and
Order Directing Hearings was issued in Case 26-RC-4727
on October 2. In it the Acting Regional Director
consolidated Case 26-RC-4727 with Case 26-CA-5016 for
hearing on the six challenged ballots. The hearing was held
in Little Rock, Arkansas, on December 18, 19, and 20,
1974.
The principal issue litigated was whether Dee Canthers,
Respondent's head librarian, was a supervisor within the
meaning of the National Labor Relations Act, as amended.
For the reasons set forth below, I find that she was and
that, therefore, Respondent did not violate Section 8(a)(3)
and (1) by discharging her on February 27 for engaging in
union activities.
Upon the entire record,' including my observation of the
demeanor of the witnesses, and after' due consideration of
briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the complaint in Case 26-CA-
5016 be, and it hereby is, dismissed in its entirety.
IT IS HEREBY DIRECTED that as part of the
investigation in Case 26-RC-4727 to ascertain a
representative for the purpose of collective bargain-
ing with the Employer, the Regional Director for
Region 26 shall, pursuant to the Rules and Regula-
tions of the Board and within 10 days from the date
of this Decision, open and count the ballots of Ralph
Routon, Clay Henry, Ray Bode, and Margaret Ross
and thereafter issue and serve on the parties a revised
tally of ballots, and issue the appropriate certifica-
tion.
IT IS FURTHER DIRECTED that Case 26-RC-4727 be,
and it hereby is, referred to the Regional Director for
Region 26 for further proceedings pursuant hereto.
Respondent corporation publishes a daily newspaper in
Little Rock, Arkansas. It subscribes to interstate news
services, publishes nationally syndicated features, and
advertises nationally sold products. During the 12 months
just prior to issuance of the complaint in Case 26-CA-
5016, a representative period, it grossed in excess of
$200,000.
II. THE UNFAIR LABOR PRACTICES
A. Facts
Dee Carithers was hired to replace Respondent's head
librarian in September 1970. She assumed the title from the
beginning of her employment. It was conferred upon her
formally on August 22, 1972, when Respondent "[p]rom-
oted" her "to head librarian with additional responsibility
of reorganizing the library" as a vehicle for giving her a
$15-a-week raise.
Mrs. Carithers was admittedly discharged on February
27, 1974, for participating in the Charging Party's cam-
paign to organize Respondent's newsroom employees. On
February 26 Robert Douglas, the managing editor, called
her into his office and said, "Dee, I have to inform you that
the Gazette considers you to be a supervisor and, therefore,
I The General Counsel's motion to correct the transcript is hereby
granted.
ARKANSAS GAZETTE COMPANY 1221
expects your, loyalty to the company. You may be in
violation of the National Labor Relations Act."
Mrs. Carithers said, "You mean that if I, as head
librarian, am involved in union activity I can be fired?"
Douglas said, "It means that we expect you to be loyal to
the company, since you're a supervisor." This was the fast
occasion on which Respondent informed Mrs. Carithers it
considered her a supervisor.
On February 27 Douglas summoned Mrs. Carithers to
his office again and discharged, her. He said, "Dee, this is
one of the hardest things I've ever had to do, but I have to
tell you that you're dismissed and here's your check for two
weeks pay and you can leave now."
Mrs. Carithers said, "But why?"
Douglas said, "Because of our conversation yesterday."
Mrs. Carithers said, "Well, am I the only one to be
fired?"
Douglas said, "The only one so far."
Mrs. Carithers said, "Well, ' then, I assume that [Paul]
Johnson, [Gerald] Drury [assistant news editors], and
[Jerry] Jones [assistant city editor]2 will go also."
Douglas said, "No, not based upon what they told me."
The question of whether Mrs. Carithers was a supervisor
within the meaning of the Act turns on whether she had the
authority effectively to recommend hiring of persons to
work in the library. The only person with authority
actually to hire editorial department 3 employees, a unit
which embraces those who work in the library, is the
managing editor. When Mrs. Carithers was hired by
Douglas' predecessor, the library staff consisted of two
persons , including the head librarian, both of whom
worked full time and on the day shift. Douglas became
managing editor on March 1, 1972. Thereafter, on Mrs.
Carithers' recommendation, an additional full-time, day
shift position was added. It was filled, first, by Janie
Kendall and then by Betty Turner. Also, on Mrs.
Carithers' recommendation two part-time, evening shift
positions were created. They were filled for a time by,
among others, Laura Cartwright and Pamela Long. The
events surrounding the transfer of Miss Kendall and the
hire of Mrs. Turner, Miss Cartwright, and Miss Long raise
the question of whether Mrs. Carithers had the authority
effectively to recommend the hire of employees.
1. The full-time position
Dee Carithers replaced Candy Dunlap as head librarian.
Initially, her only assistant was Connie Carbonaro. Miss
Carbonaro's work was something less than satisfactory.
Consequently, soon after Douglas became managing
editor, Mrs. Carithers raised with him the question of
getting more competent help in the library. Douglas,
however, was reluctant to let Miss Carbonaro go because
of her long tenure with the paper. (Connie Carbonaro
ultimately left in July 1973. Therefore, while the full-time
2 The Regional Director found, in Case 26-RC-4727, that Johnson,
Drury, and Jones were supervisors within the meaning of the Act (the
record does not reveal their fate), but that Mrs. Carithers was not. By
telegraphic order dated May 8 the Board granted both sides' requests for
review of the Regional Director's decision but only with respect to the status
of Mrs. Canthers and jobs other than those held by Johnson, Drury, and
Jones. In its Decision on Review , the Board said , "Because of the
considerable conflict in the record testimony on the status of the head
staff in the library numbered three from August 1972 until
July 1973, it was again only two thereafter. Mrs. Carithers'
assistant at the time of her discharge was Betty Turner,
who succeeded her as head librarian.)
Janie Kendall had worked for several summers prior to
1972 in the Gazette's women's department while she was a
student at the University of Arkansas. She graduated in the
spring of 1972 with a teacher's certificate and returned to
her summer job with Respondent. By August she had not
found a teaching position and her job with the Gazette was
running out. Aware of Miss Kendall's situation, Mrs.
Carithers asked her friend and former pupil if she would be
interested in working in the library. When Miss Kendall
said she would Mrs. Carithers went to Douglas and
suggested that the library's need for better help be solved
by creating a third full-time position and transferring Miss
Kendall into it. Douglas agreed, subject to the publisher's
approval of the addition to the budget. He subsequently
obtained the publisher's permission to expand the library
staff from two to three. Miss Kendall was transferred to the
library on August 31, 1972. She worked there until around
the middle of November.
Betty Turner applied for a job as a reporter on the
Gazette on September 9, 1972, and was interviewed by
Douglas. She filled out an application and left it with him.
He told her that he would have hired her if she had applied
the week before, but that the job which had been open at
that time had been filled. He expressed his regret that he
had no openings on the newsroom staff at that time. Mrs.
Turner expressed her interest in any job which might open
up in the future.
When the departure of Janie Kendall became imminent
around November 1, 1972, Douglas had on hand some 15
applications for jobs. He selected those of Mrs. Turner and
Linda Bryant, another black woman who, like Mrs.
Turner, had indicated a desire to be considered for a job of
any type. He narrowed his consideration from the field of
15 to Mrs. Turner and Miss Bryant because they were the
only applicants who had not, when he interviewed them,
limited their interest to a job as a reporter or copy editor or
one of the other categories which make up a newspaper
editorial staff. In the last days of Miss Kendall's employ-
ment, Douglas summoned Mrs. Carithers to his office, told
her that he was looking for a replacement, showed her the
applications of Mrs. Turner and Miss Bryant, and asked
her opinion. She read both applications, then handed Mrs.
Turner's to Douglas and suggested he interview her first
because Mrs. Turner "was a college graduate, whereas the
other person wasn't. And that Betty, the whole back of her
application was filled with experience, and pointed that
out, whereas the other person, I don't believe, had nearly
that much experience. And that Betty was married and the
other person was single and I felt that a married person
would be more stable."
librarian, Dee Canthers, we are unable to determine whether she is a
supervisor or should be included in the unit . We shall, therefore, allow her,
also, to vote subject to challenge:'
3 The Regional Director found appropriate a unit of "All full-time and
regular part-time employees in the news and editorial departments of
Arkansas Gazette Company, etc." "News and editorial departments" is
redundant.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Douglas placed a call to Mrs. Turner on November 6,
1972, but she was out. She returned his call that same day.
Douglas said there was a position open in the library and
he was interested in having her take it. She asked him what
the job entailed. He explained it to her, briefly. She asked
how much the job paid. He said $90 a week. She said she
really needed more than that, but she would talk to her
husband about his offer. She then asked if he wanted to see
her. He said whenever it was convenient for her. She said
the next day would be convenient. He said, "Well, okay,
it's yours if you want it." 4 She said she would see him the
next day.
Mrs. Turner went to Douglas' office on November 7,
1972. She said she had talked to her husband about taking
the job and was still concerned about the salary. She asked
if there would be raises. He said there were regular raises,
including one at the end of a 90-day probationary period.
She said she would take the job. He said, "That's good."
She asked for more information about the work in the
library. He said he would get Dee Carithers and let her
explain it in more detail. Mrs. Turner said she still wanted
to be a reporter and asked what her chances would be. He
said they were much better as an employee than as an
applicant off the street. He promised to consider her for
any job which opened up that she might be qualified for.
He asked if she could start work November 9. She said she
could not, for personal reasons. He suggested Thursday,
November 16. She asked why Thursday. He explained that
Respondent's pay period starts on Thursday. She agreed to
start on November 16. He told her to let him know if she
had any problems.
Douglas then left Mrs. Turner while he went to the
library and brought Mrs. Carithers to his office. He
introduced the two women to each other and left. Mrs.
Carithers and Mrs. Turner chatted for a few minutes,
principally about Mrs. Turner's family and background.
Mrs. Carithers commented on all the experience she had
noted on Mrs. Turner's application. She asked Mrs. Turner
if she would like to see the library. Mrs. Turner said she
would.
Mrs. Carithers took Mrs. Turner to the library. She
showed her around, explaining in detail the work that was
done there. Finally, Mrs. Carithers said, "Well, are you
coming to work here?"
Mrs. Turner said, "Yes."
Mrs. Turner began, as arranged, on November 16,
1972. During the first 90 days of her employment, Douglas
asked Mrs. Carithers how Mrs. Turner was getting along.
Mrs. Carithers praised her. Mrs. Turner was given an end-
of-probation raise to $105 a week on February 1, 1973. On
the form which Douglas filled out to initiate the raise, he
remarked, "Good worker. Recommended by Dee Carith-
ers. Status changed to permanent. Budgeted."
2. The part-time positions
The use of summer employees, presumably to fill in for
vacationing staffers, is common at the Gazette. One was
used in the library on the day shift each summer during
Dee Carithers' tenure as head librarian. Nepotism is also a
fact of life on the Gazette. Consequently, Mrs. Carithers
had no role in the hiring of summer replacements. Jan
Holtzman, daughter of a secretary, worked in the library
during the summer of 1971, as she had in 1970, before Mrs.
Carithers was hired. Kelly Carithers, daughter of an editor
(and a niece of Mrs. Carithers by marriage), worked the
summers of 1972 and 1973. Nepotism first affected a plan
which Mrs. Carithers made in her role as head librarian
when Linda Retzloff, stepdaughter of an editor, was hired
at the beginning of the summer of 1973.
In the spring of 1973 Mrs. Carithers recommended to
Douglas that two part-time, evening jobs be created m the
library. Mrs. Carithers' plan was that the persons hired to
fill them would work from 4 to 10 p.m. and that the library
would be kept open during those evening hours 7 days a
week. (The Arkansas Gazette is a morning newspaper.) On
4 nights only one librarian would be on duty. On the other
3 both would work. Thus each incumbent would work five
shifts of 6 hours each for a regular stint of 30 hours per
week. Central to Mrs. Carithers' plan was the hiring of
college students to fill these jobs. Mrs. Carithers suggested
that the pay be set at $2 an hour rather than the $1.60
minimum prescribed by law. Douglas approved Mrs.
Carithers' recommendation, subject, once again, to the
publisher's approval of the necessary increase in the
newsroom budget.
Douglas implemented the plan, although not quite as
envisioned by Mrs. Carithers, when he gave Linda Retzloff
a temporaryjob at the beginning of the summer of 1973. At
the time, he told Mrs. Carithers that a decision as to the
second evening job was being deferred "until fall" for
budgetary reasons. He put Miss Retzloff to work in the
library 5 evenings a week from 4 to 10 p.m. He paid her $2
an hour, the rate of pay which each part-time, evening
librarian subsequently got. However, Miss Retzloff was not
a college student. Mrs. Carithers played no role in the hire
of Linda Retzloff.
The person Douglas hired to replace Linda Retzloff
when her summer job neared its end was Ann Bennett.
Mrs. Bennett also did not meet Mrs. Carithers' specifica-
tions, and Mrs. Carithers played no part in her hire. Mrs.
Bennett, the working mother of five children, is an old
friend of Douglas. Finding herself in need of a second job
for economic reasons, she asked Douglas for help and sent
him a resume sometime in August 1973. Douglas offered
her the evening job in the library, waiving the 4 p.m.
starting time so that she could fit it in with her full-time job
during the day. Mrs. Bennett accepted. She began working
in the library while Mrs. Carithers was on vacation in
August. Her hours were from as soon as she could get to
the Gazette from her daytime job, usually around 5:30
p.m., until 10 p.m. When Mrs. Carithers returned from
vacation and found Mrs. Bennett on the library staff, she
protested mildly to Douglas on the ground that working in
the library in the evening after putting in a full day on her
regular job would be too taxing for Mrs. Bennett. Douglas
ignored Mrs. Carithers. Mrs. Bennett worked evenings in
4 Douglas' version of this line of his telephone conversation with Mrs. words indicate that the crucial element in Douglas' decision to hire Mrs.
Turner on November 6, 1972, is "I'm sure you can get the job." Regardless Turner was Mrs. Canthers ' recommendation that he interview her rather
of which version is more accurate, the import is the same. Either way, the than Miss Bryant first.
ARKANSAS GAZETTE COMPANY 1223
the library until October 1973 when she transferred to a
full-time job on the newsroom staff as assistant to the food,
home, and garden editor.
The first college student hired for a part-time, evening
job in the library was Laura Cartwright. She became the
initial incumbent in the second slot sometime early in Ann
Bennett's tenure in the first in this manner: Kelly Carithers
suggested her friend, Laura Cartwright, as a possible
evening librarian to Dee Carithers. Mrs. Carithers told
Miss Carithers to have Miss Cartwright come in and see
her. Miss Carithers, presumably unaware of Ann Bennett,
was under the impression there were two evening jobs
open. Consequently, when she telephone Miss Cartwright,
they arranged between them that Miss Cartwright would
bring their mutual friend, Pat Connolly, another college
student, along with her.
Laura Cartwright and Pat Connolly -showed up together
in the Gazette library one day. They talked to Mrs.
Carithers. Mrs. Carithers obtained two blank application
forms from Douglas' secretary, keeper of the blanks, and
gave them to Miss Cartwright and Miss Connolly to fill
out. They did so, in the library. Mrs. Carithers then sent
them, with their applications, to Douglas. Douglas,
uncertain as to why Mrs. Carithers had sent them to him,
glanced at their applications. He did not interview them.
He explained to them that there was only one job open. He
sent them back to Mrs. Carithers. They told Mrs. Carithers
what Douglas had said. Mrs. Carithers let them decide for
themselves which one would take the one job that was
available. Miss Connolly deferred to Miss Cartwright on
the ground that Miss Cartwright was first in line.
Miss Cartwright dropped out of college while she worked
for the Gazette. She quit in January 1974 to take a full-time
job elsewhere. At that time nepotism again balked Mrs.
Carithers' plan to use college students as evening librari-
ans. Douglas hired Mary Lou Portis, wife of an editor, to
replace Miss Cartwright. She started work around January
30. When he hired Mrs. Portis, Douglas changed the
evenings off of the other evening librarian (by that time,
Ruth Williams) so that Mrs. Portis could be off on the
same days as her husband. He hired Mrs. Portis and
changed the schedule without consulting Mrs. Carithers.
Pamela Long, another college student, replaced Ann
Bennett as a part-time, evening librarian-in October 1973.
Miss Cartwright spoke to Mrs. Carithers about her best
friend when Mrs. Bennett's spot opened up. Mrs. Carithers
told Miss Cartwright to have Miss Long come in to see her.
Miss Long went to -the library one day with Miss
Cartwright. Once again, Mrs. Carithers talked to the
applicant, got an application blank from Douglas' secre-
tary, and had Miss Long fill it out in the library. However,
she did not send Miss Long to see Douglas. A few days
later, when Douglas indicated he had been unable to get in
touch with Linda Bryant, the other applicant he had
considered when he hired Betty Turner nearly a year
before and the person he had in mind for this job, Mrs.
Carithers took Miss Long's application out of her desk and
showed it to him at his request. Douglas told Mrs.
Carithers to get in touch with Miss Long. Miss Long began
working as an evening librarian soon thereafter. Douglas
met her a few days later when she had occasion to deliver a
library file he had called for to his office.
Miss Long also dropped out of college while she worked
for the Gazette . She quit suddenly under , circumstances
similar to Miss . Cartwright's in early January 1974. Ruth
Williams was hired to replace her around January 5. Ann
Bennett had spoken to Dee Carithers sometime before
about the possibility of getting the daughter of a friend,
Ruth Williams, into one of the evening jobs. Mrs.
Carithers, aware that both Laura Cartwright and Pamela
Long had dropped out of college and were looking for
other jobs, had suggested that Mrs. Bennett have the girl
come in and file an application against the day when one
of the jobs would open up. Miss Williams did so . However,
unlike Miss Cartwright and Miss Long , she went to
Douglas' office rather than the library . She filled out her
application there . Douglas ' secretary sent her to the library
with it where Mrs. Carithers talked to her briefly,
principally about whether she planned to go on to college
when she finished high school . The application was in Mrs.
Carithers' desk drawer when Miss Long quit . Douglas
asked her for it . A day or so later Douglas told Mrs.
Carithers to get in touch with Miss Williams and tell her to
come to work.
B. Analysis and Conclusions
I find, on the basis of the foregoing facts, essentially
undisputed, that Dee Carithers effectively recommended
the transfer of Janie Kendall and the hire of Betty Turner,
Laura Cartwright, and Pamela Long. In the case of Miss
Kendall, there is no evidence in the record that Douglas
made any independent evaluation of her suitability for a
job in the library before, he adopted Mrs. Carithers'
suggestion that he avoid the necessity of having to let her
go when her summer job ran out by creating a new position
for her in the library. In the case of Mrs. Turner, the
significant fact is that Douglas made no independent
evaluation of her suitability for a job in the library after
Mrs. Canthers picked her over Linda Bryant on the basis
of their applications. While Douglas had interviewed Mrs.
Turner at the time she filed her application, the thrust of
their conversation had been editorial-not library-work.
Mrs. Carithers picked Mrs. Turner over Miss Bryant as the
more likely candidate for library work. When Douglas
spoke to Mrs. Turner on the telephone on November 6,
1972, and told her the job was hers if she wanted it, he did
not conduct any additional investigation of her fitness. The
purpose of their interview on November 7, 1972, was to
give Mrs. Turner an opportunity to decide whether she
wanted the job, not Douglas an opportunity to decide
whether he wanted Mrs. Turner.- In the cases of Miss
Cartwright and Miss Long, the significant fact is that they
were the first two college students, i.e., applicants who met
the requirements laid down by Mrs. Carithers, who were
hired for the evening jobs. In neither case did Douglas talk
to the applicant in a manner and to an extent which- would
constitute a job interview. In Miss Long's case he did'not
talk to her at alt' before she was hired. In neither case is
there any evidence that Douglas relied on, the information
contained in the application in a manner or to an extent
which would constitute an investigation of her suitability
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the job independent of Mrs. Carithers' tacit indication
that she would do.
This finding that Dee Carithers had the authority, in her
capacity as Respondent's head librarian, effectively to
recommend hire and transfer of employees is alone enough
to support a finding that 'she was a supervisor within the
meaning of the Act. This finding is buttressed by the
following facts also contained in this record:
1. Mrs. Carithers effectively recommended the creation
of jobs which had not existed before.
2. Mrs. Carithers effectively recommended Betty Turn-
er for the raise which she received in February 1973. The
fact that Mrs. Carithers was unaware that Douglas' inquiry
was prompted by the imminent end of Mrs. Turner's
probationary period and that fact that Mrs. Carithers was
unaware Respondent even'had a probationary period and
a policy of granting a raise, to those who survived it are
immaterial.
3. Mrs. Carithers gave Laura Cartwright and Pamela
Long permission to close the library at 7 p.m. on, the night
of December 5, 1973, provided their work was completed
so that they could attend Southwestern Bell's annual
Christmas party for the press. The fact that she said, "I'm
sure its all right with Bob [Douglas] for you to go," and
subsequently checked with Douglas to make really sure is
immaterial.
4. Mrs. Carithers gave Miss Cartwright permission to
take a week off in early January to visit Kelly Carithers on
the campus of the University of Arkansas at Fayetteville.
When she returned, Mrs. Carithers told her not to ask for
any more time off. The fact that 'Mrs. Carithers acquiesced
in Miss Cartwright's plan to visit Miss Carithers because
she wanted to encourage Miss Cartwright's nebulous desire
to reenroll in college and the fact that Mrs. Carithers said
she would have to ask Douglas for time off in the future are
immaterial.
5. Mrs. Carithers told Bill Rutherford, the news editor,
on January 3, 1974, not to send the evening librarians
home early again in the event of a storm because it
interfered with completion of their work. There had been a
severe ice storm the evening before. Rutherford had sent
all but a skeleton news staff home early. The evening
librarians had left too. The record does not reveal who, if
anybody, had given them permission. Rutherford did not.
The fact that, Rutherford, a supervisor himself, was not
bound by Mrs. Carithers' angry request is immaterial.
6. Mrs. Carithers told Rutherford not to use an evening
librarian for nonlibrary duties in an emergency because it
interfered with completion of her work. On this occasion,
the telephone operator had become too ill to work.
Rutherford had ascertained-that Ann Bennett knew how to
operate the switchboard, put her on the board, and sent the
operator home. The fact that Rutherford did the same
thing on another occasion when the telephone operator
injured her foot and was unable to continue working
despite Mrs. Carithers' protest is immaterial.
7. Mrs . Carithers told Rutherford never to send , a
particular copy boy into the library again. The boy had
irritated Mrs. Carithers by trying to get the material
Rutherford wanted out of the library files by himself. The
fact 'that Rutherford ignored Mrs. Carithers' order is
immaterial.
8. Most significant of all these relatively insignificant
points, Mrs. Carithers was in charge of the "library portion
of the work, that had to be done by the editorial staff to-get
the paper out in the, same sense that Mr. Shelton [the city
editor and a supervisor] was in charge of getting . . . local
news collected and written." An example of the status this
gave her is found in the fact that Rutherford, acting in his
capacity as a member, of the committee which runs the
Gazette's credit union, consulted her when Betty Turner
applied for a loan. Mrs. Turner had asked for some $3,000
to buy a new car. Following the policy of the committee
when employees unknown to it apply for loans, Rutherford
went to Mrs. Turner's department head. He asked Mrs.
Carithers if Mrs. Turner was likely to be on the payroll for
a while. Mrs. Carithers said she was a good worker and
that her prospects for continued employment were excel-
lent. Mrs. Turner got her loan. The fact that Mrs. Carithers
was not invited to meetings of department heads, such as
the news editor and the city editor, is material but not very
weighty. Newspaper librarians do not normally participate
in editorial conferences on metropolitan daily newspapers.
The facts which can be thrown into the other side of the
scale to counterbalance it toward a nonsupervisor finding
are meager. The principal one is Mrs. Carithers' utter and
genuine amazement at being told for the first time on
February 26, 1974, that Respondent considered 'her a
supervisor within the meaning of the Act. The others grow
out of the routine nature of the work done in the library
and the way Mrs. Carithers and Mrs. Turner worked
together to get it done. The purpose of the library is to
provide material to reporters and editors as it is needed for
putting out the newspaper each day. The piincipal-
although, of course, not the only-tool which the library
provides to reporters and editors is files of clippings from
past editions of the paper. The stories in each day's paper
must be marked for filing. Then the papers must be clipped
and the' clippings filed. As the head librarian, Mrs.
Carithers daily marked the Gazette according to Arkansas
persons, places, and subjects. Mrs. Turner marked it on the
days when Mrs. Carithers was not there. In addition, she
marked the Arkansas Democrat, Little Rock's evening
newspaper, for clippings needed to supplement those taken
from the Gazette. Both clipped. Both did some filing. Both
pitched in to do the other necessary chores in the library
such as filing photographs or servicing requests for
information. The principal duty of the part-time, evening
librarians was to file clippings. The measure of the
completeness of their work was whether the filing was up
to date since each passing day brought a new stack of
clippings to bfiled. That was the reason Mrs. Carithers
was concerned when an ice storm and sick telephone
operators interrupted their work and why, when she gave
Miss Cartwright and _ Miss Long permission to go to the
Christmas party, she added the caveat provided their work
was completed.
The day-to-day work ,done in the library is so routine
that employees require little if any supervision. Each
person hired during Mrs. Carithers' tenure as head
librarian was shown what she had to do by the person she
ARKANSAS GAZETTE COMPANY
was replacing rather than Mrs. Carithers. Written instruc-
tions to the evening librarians about what they should do
when filing was caught up gave both Mrs. Carithers and
Mrs. Turner as a source of information if they had any
questions and listed both- their telephone numbers. (The
evening librarians were on their oven from 5:30 p.m., when
the last day shift librarian left, until 10 p.m., when they
closed the library and went home themselves.) Both Mrs.
Carithers and Mrs. Turner, on occasion, left notes for the
evening librarians when the situation demanded it. In fact,
Mrs. Turner left so many more notes than Mrs. Carithers
that she was known to the staff as "the note fiend."
All this, taken together, does paint a picture of a highly
routine operation requiring and getting little or no day-to-
day supervision. It falls far short, however, of all the facts I
have set forth above which indicate that Mrs. Carithers
did, in fact, possess supervisory authority even though she
may not have been aware of it. On the basis of the record
as a whole, therefore, but principally on the basis of the
facts which establish 'she had authority -effectively to
recommend hire and transfer of employees, I find that Dee
Carithers was a supervisor within the meaning of the Act.
Because the protection of the Act does not extend to
supervisors discharged for engaging in union activities, it
follows that Respondent did not violate Section 8(a)(3) and
(1) of the Act when it discharged her on February 27, 1974,
for that reason. Because the words which Robert Douglas,
Respondent's managing editor, spoke to Dee Carithers on
February 26, 1974, were addressed only to a supervisor, it
also follows that Respondent did not violate Section 8(a)(1)
of the Act on that date by "interrogat[ing] an employee
and solicit[ing] withdrawal of said employee' s union
membership."
ffi. THE CHALLENGED BALLOTS
The conclusion that Dee Carithers was a supervisor
within the meaning of the Act disposes of the challenge to
the ballot she cast in the election held in Case 26-RC-4727
on September 13, 1974. At the hearing, the parties resolved
the issues with respect to' three more by stipulation.
Pursuant to those stipulations, I find that Betty Turner,
Mrs. Carithers' successor as head librarian and officially
named to that position on April 18, 1974, with explicit
authority effectively to recommend hiring and firing, is a
supervisor within the meaning of the Act; that Ralph
Routon is not a supervisor within the meaning of the Act;
and that Clay Henry is a regular part-time employee. I
recommend, therefore, that the ballots cast by Dee
Carithers and Betty Turner not be opened and counted
and that the ballots cast by Ralph Routon and Clay Henry
be opened and counted. There remain for disposition only
the challenges to the ballots of Roy Bode and Margaret
Ross.
A. Roy Bode
1. Facts
Roy Bode is the Arkansas Gazette's Washington
correspondent. He• was hired for that job in Washington
when the Gazette created its Washington ' bureau in
1225
October' 1972. He is the only employee of the paper
permanently stationed in Washington. On only one
occasion has he been assisted by another staffer. The
Gazette beefed up its coverage of the recent Wilbur Mills-
Fanne -Foxe scandal by sending a second reporter to
Washington for a short time to help Bode. Bode does not
cover the national aspects of Washington news-for the
Gazette. His assignment is to cover Arkansas personalities
and the Arkansas aspects of governmental events in
Washington. While Bode has visited Little Rock briefly on
at least six occasions since October 1972 at the paper's
expense, the only significant news story he has ever
covered while in Arkansas was the Bumpers-Fulbright
senatorial primary election in 1974. He also left Washing-
ton and went to North Carolina to cover a congressional
campaign by Brooks Hays. Hays' efforts to get elected in
North Carolina were of interest to the Gazette and fell
within the ambit of Bode's beat as Washington correspond-
ent because Hays was a native of Arkansas.
In his Decision and Direction of Election, the Regional
Director discussed Bode in the context of Gazette writers
who staff bureaus in Arkansas. In its Decision on Review,
the Board said, "[W ]e adopt the Regional Director's
decision to include the bureau writers in Fayetteville, Van
Buren, and Pine Bluff, Arkansas, in the unit on the ground
that they have a sufficient community of interest with other
unit employees. We also adopt his conclusion to allow the
bureau writer in Washington, D.C., to vote subject to
challenge."
Bill Lancaster, who lives in Sheridan, Arkansas, covers
the southeastern part of the State from Pine Bluff. Peggy
Robertson, who lives in Fort Smith; covers the northwest-
ern part of the State. At the time of the representation
hearing she lived in Van Buren. Both are under the
immediate supervision of Leroy Donald, the state editor.
Davis Smith covers University of Arkansas sports from
Fayetteville. He is under the immediate supervision of
Orville Henry, the sports editor. Bode is under the
immediate supervision of Robert Douglas, the managing
editor, who is one step higher than Donald and Henry in
the Gazette's managerial hierarchy.
All four bureaus are linked with the newsroom, but not
with each other, by telecopiers, a telephone system which
reproduces written copy at the receiving end. In the
newsroom, the telecopier equipment is located near the
state editor's desk. All sections of the editorial department
utilize Bode's services in Washington. Whether the assign-
ment originates on the city desk, the copy desk, or the
world news desk, in the sports department or, the
photographic department, or with the news editor or the
managing editor, the traffic is funneled through the state
editor's desk because of the location of the telecopier.
Messages to Bode are placed on a clipboard there for
transmittal to him. Replies or stories filed by him are
received by the state editor and relayed by him to the
appropriate person or desk. Like the other three bureau
writers, Bode files his budget early in the day and his copy
early in the evening for inclusion in the next morning's
Gazette. Because a one-man bureau cannot be in two
places in Washington at one time, Bode's budget is usually
one story. Bode, Lancaster, Mrs. Robertson, and Smith all
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set -their own hours. Lancaster and Mrs. Robertson
occasionally visit the newsroom.
Although he is paid only once a month because of a
special arrangement with management, Bode receives a
salary of $310 per week, $15 of which represents a cost-of-
living differential. Lancaster's salary is $185 per week, Mrs.
Robertson's is $155,,and Smith's is $160. Ernie Dumas and
Doug Smith are writers headquartered in Little Rock
whose beats are state politics. In this respect, their work is
more analogous to Bode's than is the work of Bill
Lancaster, Peggy Robertson, and Davis Smith. Dumas and
Doug Smith are under the immediate supervision of the
city editor. The former's salary is $275 a week, the latter's
is $250. The question of overtime pay produced an
unproductive haggle at the hearing. The record is too
confused to permit a -finding as to who gets overtime
calculated by what formula under what, if any, circum-
stances. The point is immaterial in any event. Bode's pay is
subject to the same exactions, such as tax withholding, as
all other employees'. He also receives the same fringe
benefits.
2. Analysis and conclusions
The only case of which I am aware in which the Board
has passed on whether Washington correspondents should
be included in a unit of a metropolitan daily newspaper's
editorial department employees is A. S. Abell Company,
Publisher, The Sun Papers, et al., 81 NLRB 82, 88-89
(1949). There the Board said:
At the time of the hearing, there were . . . employees
... assigned to the Washington Bureau whom the
Petitioner seeks to include in and the Employer to
exclude from the unit. The Petitioner concedes that
employees assigned to the Washington Bureau who
work primarily in Washington should be excluded.
At the time of the hearing, two employees were
carried on the Employer's pay roll as members of the
Washington Bureau who were actually working out of
Baltimore, covering local or national political assign-
ments in much the same fashion as field correspondents
do. As the nature of their work and their working
conditions are indistinguishable' from those of the
employees in the unit hereinafter found appropriate,
they will be included. However, if they should be
assigned to work regularly out of Washington, they will
no longer be eligible to vote in the election hereinafter
directed, or to constitute part of the unit.
It is obvious from the context that the reason for the
Board's excluding the Baltimore Sun Papers' Washington
correspondents was more the agreement of the parties in
that case than a deliberate weighing of all the elements
which go into a community-of-interest problem. However,
it is equally obvious from the second paragraph that the
separation of Washington from Baltimore was a significant
element in the Board 's ratifying the parties' agreement that
there is insufficient community of interest between a
newspaper's men in Washington and its home-based
staffers. If that is true in the case of the Sun Papers,
published only 40 miles from Washington, it is even more
true of the Gazette, published half a continent away. Cf.
The Salt Lake Tribune Publishing Company and Telegram
Publishing Company, 92 NLRB 1411(1951), where employ-
ees assigned to in-state bureaus were included in the unit.
On the authority of A. S. Abell, I find Roy Bode does not
have a sufficient community of interest with other
employees to be included in the unit. I recommend,
therefore, that his ballot not be opened and counted.
B. Margaret Ross
1. Facts
There is no mention of Margaret Ross in the preelection
documents pertaining to Case 26-RC-4727 because no-
body thought about her while the representation case was
being processed to an election. That, I presume, stemmed
from the unique nature of her job. She was challenged at
the election by Petitioner on the ground that she lacks a
community of interest with other employees.
J. N. Heiskell, the longtime editor of the Gazette,
owned a large and valuable collection of books and other
materials relating to the history of Arkansas. In 1957 he
gave it to the Arkansas Gazette Foundation, a nonprofit
corporation which has no employees. The directors of the
foundation are Hugh B. Patterson, Jr., publisher of the
Gazette, Louise Heiskell Patterson, and Wilhehnina
Heiskell. All three are also on the Gazette's board of
directors.
Heiskell's historical library was moved from his home to
the Gazette building and housed in an area separate from
the paper's regular library at the time the gift was made.
Simultaneously, Mrs. Ross , a research assistant at the
Arkansas History Commission, was hired to take care of it
and work with it. Consequently, she refers to herself as the
Gazette's historian.
Mrs. Ross is on the Gazette's editorial department
payroll. (The Foundation pays only for additions to the
collection.) Her salary is $225 per week. For payroll
purposes, her paycard is kept by the person in charge of the
Gazette's opinion pages. (The editorial director, two
editorial writers, and a cartoonist occupy quarters next
door to the historical library. The former also tends to the
paycards of the latter three.) Mrs. Ross works from 9 a.m.
to 5 p.m. Monday through Friday by her own choosing.
When she is not present, no other employee of the Gazette
assumes her function. She receives the same fringe benefits
as other editorial department employees. She is supervised
by no one.
Mrs. Ross spends the major part of her time accession-
ing, that is, doing librarian chores connected with
preserving and augmenting the collection. Her contrib-
ution to publication of the Gazette consists of providing
historical data for background or feature story purposes,
principally to those who produce the opinion pages, to a
lesser degree to the editors, writers, and reporters who
produce the rest of the paper . Her research sometimes
takes her to the Gazette's regular library in order to consult
back issues of the paper not old enough to be in the
Heiskell collection. She spends a small portion of her time
ARKANSAS GAZETTE COMPANY 1227
responding to requests from the public for information
relating to the history of Arkansas.
Mrs. Ross contributed an historically oriented column
called "Chronicles of Arkansas" to the Gazette from 1958
to 1968. At that time it was discontinued in order to give
her time to finish writing a history of the Gazette. It was
not resumed when the book was published in 1969. At the
present time, Mrs. Ross' contribution to the material which
appears from day to day in the Gazette is best summarized
by these excerpts from her testimony:
Q. What recently have you done in [helping] the
Newsroom write historical articles?
A. You mean the manner of help?
JUDGE BLACKBURN: What he really wants to know,
Mrs. Ross, is what appeared in the paper recently that
you made some contribution to?
Is that the thrust of your question?
MR. HOUSTON: That's it.
TuE wiTNEss: I can tell you what I did this morning,
will that do?
JUDGE BLACKBURN: Okay.
THE WITNESS: I spent the morning making a list of
Little Rock street names and their origins and the
changes made in Little Rock street names for Richard
Allen.
Q. (By Mr. Houston) Richard Allen is a columnist?
A.' Yes.
Q. Now-So, during the period of time I've
outlined to you, is it a-is it your statement that
substantially most of your time was spent accessioning?
A. No, I don't believe that's it. You never have to
do the accessioning more than thirty or forty minutes
without somebody coming in in the morning wanting to
know something. You know, you're constantly inter-
rupted:
JUDGE BLAcKBURN: Somebody wanted to know
something in connection with the publication of the
paper?
THE wrrNESs: Yes. This will happen two or three
times a day, and then maybe will go a week and not
happen at all. There's no way to predict. There is no
way to make a blanket statement that X number of
times a day I do so-and-so because the news isn't the
same every day. Some days they don't need to know a
thing from me, other days they run me ragged.
Q. (By Mr. Lavey) Basically, when they're using
you as a source, they're using you, obviously, for
historical sources, is that correct?
A. Yes.
2. Analysis and conclusions
I am aware of no case in which the Board has passed on
a job like Mrs. Ross' or one even remotely analogous to it,
either in a newspaper newsroom unit or , for that matter, in
a unit of any type . The Gazette 's argument as to why she
should be held to have a community of interest with
persons who spend all their time , in one way or another, in
getting out a daily newspaper is summarized in this portion
of its brief, particularly the emphasized sentence:
Ross' testimony in no manner indicates that her
attention to requested information is secondary to her
other work or that it is put aside to be done later. She
testified that after she gets her mail, "if someone has
asked (her) for information that (she) can furnish that
morning, (she) get(s) busy on it", indicating priority to
these requests. She also testified that answering mail
only constituted "not more than an hour a day," .. .
and further that when she is busy doing clerical or
cataloging work she never has "more than thirty or
forty minutes" doing this type work "without some-
body coming in in the morning and wanting to know
something" in connection with the publication of the
paper. Certainly this is community of interest and for
no purpose other than getting the paper out. That's
what she is there for . . . a source of information to the
newsroom and editorial staff when they need her, readily
available. It is not the historical library the news room
depends on for factual information for tomorrow's
paper; it is Margaret Ross, herself. [Emphasis sup-
plied.]
I disagree with the conclusion that that's what she is
there for. On the contrary , what she is there for is to tend to
the Heiskell collection of Arkansas historial material. Her
contributions to the daily publication of the Gazette are
only incidental to that function . For that reason , I find that
she does not have a sufficient community of interest with
other staffers to warrant her inclusion in a unit of editorial
department employees. I recommend, therefore , that her
ballot not be opened and counted.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding , I make the following:
CONCLUSIONS OF LAW
1. Arkansas Gazette Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Newspaper Guild, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Dee Carithers on February 27, 1974, for engaging in union
activities and Section 8(aXl) by interrogating an employee
on February 26, 1974, and soliciting withdrawal of her
union membership have not been sustained.
[Recommended Order for dismissal omitted from publi-
cation]