Baltimore Sun Co.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 1023 (N.L.R.B. 1989)

BALTIMORE SUN CO.
The Baltimore Sun Company and Baltimore Newspa-
per Graphic Communications Union, Local 31,
GCIU. Case 5-UC-264
September 29, 1989
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 11, 1988, the Regional Director for
Region 5 issued a Decision and Order dismissing
the Employer's petition for unit clarification.
Thereafter, in accordance with Section 102.67 of
the Board's Rules and Regulations, the Employer
filed a timely request for review alleging that the
Regional Director erred in finding that the Em-
ployer's petition was untimely filed and that the
Employer did not reserve its right to go to the
Board regarding the seven contested positions
when it agreed to the new contract with the
Union. The Employer also contends that the Re-
gional Director erred by failing to make findings
concerning the supervisory status of the seven posi-
tions that the Employer seeks to exclude from the
unit.' By telegraphic order dated August 9, 1988,
the Board granted review.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board had considered the entire record in
this case with respect to the issues under review
and makes the following findings.
The Employer is a Maryland corporation en-
gaged in the publication and distribution of a daily
and Sunday newspaper. The predecessor to the
Union was certified in 1945 as the exclusive collec-
tive-bargaining agent of the following unit of em-
ployees:
[A]ll employees, of the Employer, in the press-
room, including foremen, pressmen in charge,
tension men , oilers, floormen, fly boys, baler
men, paperhandlers and helpers and all em-
ployees classified as machinits [sic] and ma-
chinist helpers in the machine room adjacent
to the pressroom, including the machinist fore-
man, but excluding the electricians, porters,
clerical workers, and superintendents.
The Employer and the Union are parties to a
collective-bargaining agreement effective May 1,
1987, to April 30, 1990. The Employer filed its unit
clarification petition on September 17, 1987. Thus,
' The seven positions that the Employer seeks to clarify are assistant
superintendent of operations (day), assistant superintendent of operations
(night), assistant superintendent (machine shop ), maintenance foreman,
paper warehouse foreman, operations foreman (day), and operations fore-
man (night)
1023
there is no dispute that it was filed during the term
of the contract. Although the Employer acknowl-
edges that, absent certain limited circumstances, the
Board will not consider unit clarification petitions
filed midway during the term of a contract that
clearly defines the bargaining unit, 2 it argues that
such circumstances exist here and that this case
falls within the exception of St. Francis Hospital,
282 NLRB 950 (1987).3 In this regard, the Em-
ployer contends that the Regional Director erred
in finding that the Employer did not reserve its
right to go to the Board prior to the execution of
the contract and in finding that it did not file its
petition within the time period indicated by St.
Francis Hospital. For the reasons set forth below,
we find merit in the Employer's contentions.
The Employer and the Union commenced bar-
gaining over a new contract on February 11,
1987.4 At the first session, the Union proposed to
delete section 4(f)(2) of the existing contract from
the new agreement.5 On March 23, 1987, the Em-
ployer and the Union met a second time. At this
session , the Employer proposed to exclude several
positions, including the ones in dispute, from the
bargaining unit. It is undisputed that when the Em-
ployer made its proposal, it informed the Union
"that if we are not able to negotiate these exclu-
sions we are going to the Board . . . to file a unit
clarification petition." At the fourth negotiating
session , on May 26, 1987, the Employer modified
its proposal to exclude only the seven positions at
issue here, but rejected the Union's counterpropos-
al that the excluded employees would not perform
bargaining unit work. The last negotiating session
took place over 2 days, May 30 and 31, 1987, and
resulted in a new collective-bargaining agreement.
At this last session, the Union offered to agree to
the exclusion of some of the contested classifica-
tions in exchange for specific concessions. The Em-
ployer, however, rejected the Union's proposal as
too expensive. The Employer contends that at this
time it specifically told the Union that it was re-
serving its right to take the matter to the Board
while the Union contends that the Employer stated
2 Wallace-Murray Corp, 192 NLRB 1090 (1971).
a In St. Francis, supra at 951, the Board stated.
[W]here the parties cannot agree on whether a disputed classification
should be included in the unit but do not wish to press this issue at
the expense of reaching an agreement , the Board will entertain a pe-
tition filed shortly after the contract is executed , absent an indication
that the petitioner abandoned its request in exchange for some con-
cession in negotiations
4 On February 2, 1987, the Employer filed a UC petition seeking to
exclude 33 employees, including the seven classifications at issue here,
from the collective -bargaining unit The Employer withdrew its petition
around the time of the first bargaining session
5 Sec. 4(f)(2) provided for the exclusion of the superintendent from the
provisions of the contract Thus, the Union's proposal would include the
superintendent in the bargaining unit
296 NLRB No. 131
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it was "dropping" its proposal to exclude the seven
disputed classifications . The parties agreed to in-
corporate the language of section 4(f)(2) from the
former agreement into the present agreement and
the issue of the seven disputed positions was not
raised again until the Employer filed its petition in
the instant proceeding.
As noted supra, the Regional Director dismissed
the petition on the grounds that no "independent
evidence" existed that the Employer reserved for
the Board the determination of the unit issue. In
reaching this conclusion , the Regional Director
noted that the parties included the prior provision
excluding the superintendent from the bargaining
unit in the new agreement , apparently inferring
from this that the Employer had abandoned its po-
sition as to the seven disputed positions . In addi-
tion, the Regional Director found that the Employ-
er's petition was untimely because it was not filed
until over 3 months after the parties reached agree-
ment on a new contract.
As found by the Regional Director, the Employ-
er reserved its right to go to the Board regarding
the unit issue at the second negotiating session of
March 23, 1987. The evidence does not show that
the Employer ever withdrew from this position or
renounced its reservation in exchange for any con-
cession from the Union . We find that the possibility
that the Employer may not have renewed its reser-
vation at the last bargaining session is not sufficient
to establish that the Employer had abandoned its
right to go to the Board . 6 Furthermore , we find
merit in the Employer 's contention that the Re-
gional Director erred in inferring, from the inclu-
sion of section 4(f)(2) of the previous contract in
the new contract, that the Employer withdrew its
reservation of its right to go to the Board. Thus,
the inclusion of that provision in the present agree-
ment may be read to signify only that the Employ-
er did not want the unit issue to delay agreement
on a new contract.
Finally , the Regional Director relied on his find-
ing that there was no "independent evidence" that
the Employer reserved its right to go to the Board.
We note, however, that St. Francis Hospital, supra,
does not impose such a requirement.7
Although the Union contends that the Employer informed it that it
was "dropping" its proposal to exclude the classifications , such a state-
ment, if made , would not necessarily be inconsistent with its March 23
statement that , if it could not get the desired exclusions in negotiations, it
would go to the Board.
° Even assuming that the term "independent evidence" is relevant, it is
ambiguous in this context . To the extent that it may refer to documentary
As to the timeliness of the petition , we note first
that in finding the petition untimely , the Regional
Director took as the relevant time period the
period between May 31 , 1987, the date agreement
was reached on the new contract , and September
17, 1987, the date the petition was filed , a period of
more than 3 months . As the Employer points out
in its request for review, however, the relevant
time period in St. Francis Hospital, supra, was that
between the execution of the contract and the filing
of the petition. We agree with the Employer that
these are the relevant dates in the present inquiry.
The parties here signed the new agreement on
June 30, 1987 . Thus, the issue is whether the peti-
tion here, filed 79 days after the contract was exe-
cuted , was timely filed. We conclude that it was.
In St. Francis Hospital, the Board held that it
would entertain a petition under "limited circum-
stances" (within which we have already deter-
mined the present petition fits) if it is filed "shortly
after" the contract was executed . In such situa-
tions, the Board noted , the interests of stability are
better served by entertaining the petition . Although
the petition in St. Francis Hospital was filed about 7
weeks after execution of the contract and the
present one was filed about 11 weeks after execu-
tion of the contract, St. Francis Hospital should not
be construed as setting a precise or outer time limit
for the filing of such petitions . Thus, we conclude
that the period of 11 weeks also falls within the
"shortly after" limitation set forth in St. Francis
Hospital. Hence , we agree with the Employer that
in light of all the circumstances, including the lack
of evidence that the Union was disadvantaged by
the delay , the petition here was timely filed. Ac-
cordingly , we reinstate the petition and shall
remand the case to the Regional Director for a de-
termination of whether the seven positions that the
Employer seeks to exclude from the unit are super-
visory or managerial.
ORDER
It is ordered that this proceeding be remanded to
the Regional Director for Region 5 for further ap-
propriate action consistent herewith.
evidence, however, we cannot agree that in these circumstances, where
the parties agree that the Employer reserved its right to go to the Board
at the March 23 negotiating session , that the absence of documentary evi-
dence to that effect nullifies that right