Muncie Newspapers, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1979

246 N.L.R.B. 1088 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Muncie Newspapers, Inc. and Muncie Typographical
Union No. 332, International Typographical Union,
AFL-CIO, Petitioner. Case 25-RC-7031
December 14, 1979
DECISION AND DIRECTION
BY MEMBERS PENELI.O, MURPHY, AND TRUESDALE
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the Na-
tional Labor Relations Act, as amended, a three-
member panel has considered a determinative chal-
lenge in an election held December 21, 1978,' and the
HIearing Officer's report recommending disposition of
same. The Board has reviewed the record in light of
the exceptions and brief and hereby adopts the Hear-
ing Officer's recommendation only to the extent con-
sistent herewith.
The Employer publishes a daily newspaper, The
Muncie Star, in Muncie, Indiana. The Petitioner filed
a petition seeking to represent all full-time and regu-
lar part-time employees of the Employer's editorial
departments.2 Petitioner challenged the ballot of part-
time sports reporter Kerry Arter on the ground that
Arter was a casual employee. The Employer con-
tended that Arter was a regular part-time employee,
and therefore that his ballot should be counted. Fol-
lowing an investigation, the Regional Director for
Region 25 found that substantial issues of fact existed
with respect to Arter's status which could best be re-
solved by a hearing. On February 9, 1979, a hearing
was conducted on Arter's ballot. In her report of
April 2, 1979. the Hearing Officer recommended that
the challenge to Arter's ballot be sustained because
Arter did not share a sufficient community of interest
with unit employees to warrant his inclusion in the
unit. Specifically, the Hearing Officer found that: (I)
Arter worked substantially fewer hours and days than
order part-time employees and he did not work on a
fixed schedule; (2) unlike other unit employees, Ar-
ter's pay was guaranteed and not based on the num-
ber of hours he actually worked; (3) his actual work
was very "limited" compared to other part-time re-
porters; and (4) he did not have a reasonable expecta-
tion of continued employment after the winter of
The election was conducted pursuant to a Stipulation fbr Certification
Upon Consent Election. The tally was: 20 votes Ibr, and 19 against, the
Petitioner: there was I challenged ballot, a number sufficient to affect the
outcome of the election.
The appropriate unit as set lbrth in the stipulation was:
All lull-time and regular part-time employees of the editorial depart-
ments of the Employer at its Munice, Indiana, facility, including the
photographers and librarians; but excluding all office clerical employ-
ees, all confidential employees, all professional employees, guards. and
supervisors as defined in the Act, and all other employees.
1978 79. Contrary to the Hearing Officer, we find
that Arter is a regular part-time employee and that
the record clearly demonstrates that Arter possesses
the requisite community of interest to be included
within the appropriate unit. Therefore, we find that
the challenge to his ballot should be overruled.
The record indicates the Employer employs both
full- and part-time reporters. Arter, a student at
nearly Ball State University, was hired by the Em-
ployer in August 1978 as a part-time sports reporter
to cover scholastic sports in the Muncie area. Like
other sports reporters, Arter received his assignment
from either Sports Editor Barnett or Assistant Sports
Editor LeMaster and, upon completion of an assign-
ment, was obligated to comply with the 11:30 p.m.
copy deadline. The record reveals that Arter's assign-
ments, primarily on Friday nights and weekends. gen-
erally required him to average from 5 to 10 hours of
work per week, and that except for I week Arter
worked at least 5 hours in every week from his date of
hire to the election.
The Employer allots approximately 5 hours for
coverage and reporting of evening sports events: i.e.,
from 7 to 12 p.m. This guideline was applied to all
employees, including Arter. According to LeMasters,
if an assignment required additional time, Arter. like
any other reporter, would be compensated for the ad-
ditional time. Managing Editor Shore testified that
Arter was not guaranteed a minimum number of
hours per assignment and the 5-hour figure was only
meant to serve as a guide for payroll purposes. Arter.
like all the Employer's part-time employees, was paid
on an hourly basis. Payroll figures were required to be
submitted by Friday of each week and, inasmuch as
Arter normally worked Friday evenings, it was neces-
sary for Shore to submit an estimated figure for Arter.
Shore used the traditional figure of 5 hours fr that
purpose. In the event that Arter worked in excess of
the estimated amount, the additional hours would ap-
pear on the following week's payroll.
While the Hearing Officer found that, as of the
election, Arter's work responsibilities, outside of
sports reporting, were somewhat limited in compari-
son with other part-time reporters, such a circum-
stance appeared attributable solely to Arter's status
as a relatively new employee. Further, the record es-
tablishes that Arter did have a reasonable expectation
of continued employment with the Employer follow-
ing the completion of the winter sports schedule. Bar-
nett testified that, when he interviewed Arter, he indi-
cated that the position would encompass the coverage
of sports events for the entire scholastic year., includ-
ing spring sports. While there was no discussion of
summer assignments at that time, Barnett expected
that Arter would return the following academic year.
Indeed, the record indicates that this had been the
246 NLRB No. 171
1088
Mt N('I; NEWSPAPERS, IN(
practice with other part-time student reporters. Bar-
nett also noted that. fllowing graduation from
school, part-time reporters were often offered full-
time positions and that, in the past, at least two indi-
viduals had accepted such offers.
In view of the above, we conclude that the Hearing
Officer's recommendation to sustain the challenge to
Arter's hallot is not supported by the record. We find
that Arter's hours, work responsibilities, method of
compensation. and expectancy of continued employ-
ment indicate that he was a regular part-time em-
ployee with a sufficient community of interest to he
included in the unit. In concluding otherwise. the
Hearing Officer relied on a misplaced comparison.
i.e.. she consistently compared Arter's hours of work
and work duties with those of other part-time em-
ployees and concluded that Arter did not have a suf-
ficient community of interest with unit employees be-
cause he worked fewer hours or had duties different
from those of other part-timers. But the test for
whether an employee is a regular part-time employee
as opposed to a casual employee takes into consider-
ation such factors as regularity and continuity of em-
ployment. tenure of employment. similarity of work
duties, and similarity of wages., benefits, and other
working conditions.' Using these standards, we ind
that the record demonstrates Arter was a regular
part-time employee at the time of the election. Ac-
cordingly,. we shall order that the Regional Director
open and count Arter's ballot antd, based on a revised
tally of ballots, issue an appropriate certitication.
DIRECTION
It is hereby directed that the Regional )irector for
Region 25 shall, pursuant to the National L.abor Re-
lations Board Rules and Regulations, Series 8. as
amended. within 10 days from the date of this deci-
sion, open and count the ballot of Kerry Arter. pre-
pare and cause to be served on the parties a revised
tally of ballots. and thereafter issue the appropriate
certification.
'See. e.g., Lilke Cl flr AXed. Inc. d b a Shads Oak. 229 Nl.RB 54. 55
11977).
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