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

National Labor Relations Board - Board Decisions

Aug 23, 1982

263 N.L.R.B. 632 (N.L.R.B. 1982)

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