Atlanta Newspapers

National Labor Relations Board - Board Decisions

Mar 23, 1992

306 N.L.R.B. 751 (N.L.R.B. 1992)

751
306 NLRB No. 153
ATLANTA NEWSPAPERS
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule and
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In view of the judge’s crediting the testimony of the Respondent’s
witnesses, Holmes, Wisemen, Bagby, and McDevitt, we adopt the
judge’s finding that the men-in-charge exercise independent judg-
ment in assigning work to their crews and directing the carrying out
of their tasks and therefore are supervisors.
The record does not support the judge’s findings that the men-in-
charge work out of the presence of the foremen the vast majority
of the time or that the men-in-charge keep the time of the employees
on their crew. These errors do not affect the ultimate conclusion re-
garding supervisory status.
1 The following includes a composite of the credited testimony
much of which was not in dispute.
The Atlanta Newspapers and John Long. Case 10–
CA–25003
March 23, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 25, 1991, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Gaye Nell Hymon, Esq., for the General Counsel.
James A. Demetry, Esq. (Dow, Lohnes & Albertson), of At-
lanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on July 25 and 26, 1991, at At-
lanta, Georgia. The hearing was held pursuant to a complaint
issued by the Regional Director for Region 10 of the Na-
tional Labor Relations Board (the Board) on February 1,
1991. The complaint is based on an amended charge filed by
John Long, an individual, on January 11, 1991. The com-
plaint alleges that Respondent, The Atlanta Newspapers, vio-
lated Section 8(a(1) of the National Labor Relations Act (the
Act) by demoting its employee John Long on or about May
5, 1990, because he engaged in concerted activities with
other employees for the purpose of collective bargaining and
other mutual aid and protection. The complaint is joined by
the answer of Respondent filed on February 19, 1991, where-
in it denies the commission of any violation of the Act and
asserts in its answer as an affirmative defense that the charge
should have been deferred to arbitration pursuant to the
Board’s policy on postarbitral deferral and that the complaint
should accordingly not have been issued. The Respondent
also asserts in its answer that the Charging Party is a 2(11)
supervisor and as such his actions were not protected by the
Act, and that the Charging Party’s conduct was individual
conduct, not concerted activity and was not protected under
the Act, and that he was removed from his position as man-
in-charge for bona fide business reasons directly related to
his ability and suitability to perform the required job func-
tions and unrelated to any protected activity under the Act.
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified and after due con-
sideration of the briefs filed by the General Counsel and
counsel for the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent
The complaint alleges, Respondent admits, and I find that
at all times material Respondent is and has been a Georgia
corporation with an office and place of business located in
Atlanta, Georgia, where it is engaged in the publication and
distribution of a newspaper, that during the calendar year
preceding the filing of the complaint, a representative period
of its business operations at all times material, it derived
gross revenues in excess of $200,000, held membership in or
subscribed to various interstate news services, published var-
ious nationally syndicated features, and advertised various
nationally sold products and is and has been at all times ma-
terial, an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
B. The Labor Organization
The complaint alleges, the Respondent admits, and I find
that at all times material the Atlanta Graphic Communica-
tions Union, Local 8-M is and has been a labor organization
within the meaning of Section 2(5) of the Act.
Facts1
The Respondent publishes two major daily newspapers in
the State of Georgia, plus other associated editions and other
publications in the Atlanta, Georgia metropolitan area. In this
regard it operates a pressroom which is approximately 80
feet wide and 350 feet long. There are four printing presses
in the pressroom which are each 4 stories tall, 150 feet long,
and 11 feet wide. On weekdays two presses are operated on
the day shift and three presses are operated on the night
shift. On weekends all four presses are operated on both the
day and night shifts. Each of the presses is estimated to cost
approximately $12 million. The pressroom is headed by
Pressroom Manager Jerry Holmes. In the pressroom there are
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
four foremen (including a maintenance foreman) employed
on the day shift. Phillip Wiseman is employed as head fore-
man. There are three foremen assigned to the night shift. At
the time of the alleged violation of the Act there were 93
bargaining unit employees in the pressroom classified var-
iously as journeymen, apprentices, and assistants. In addition,
there were 13 bargaining unit employees classified as men-
in-charge. At the time of the hearing these numbers had been
reduced to 87 employees and 11 men-in-charge. Men-in-
charge are recognized in the bargaining agreement as unit
employees and are paid hourly. The Respondent is authorized
to pay a contractually set (or greater) shift differential to
them over the journeyman rate. Men-in-charge also receive
unlimited sick leave days wherein journeymen do not and are
accorded parking places in areas designated for members of
management. Foremen are salaried and also receive the un-
limited sick leave days and are also permitted to park in the
parking areas for members of management.
Men-in-charge (also referred to as crew chiefs) are placed
in charge of a crew (generally approximately seven employ-
ees or less) for each press run. The crewmembers are as-
signed various jobs on various parts of the press and are des-
ignated as console man, color men, and offside man and reel
operators. crewmembers are stationed occasionally in the reel
room, at each end of the press and in a room known as a
quiet room. The men-in-charge receive a check list at the be-
ginning of their shift and utilize it to check the various areas
of the press. They move along the various locations on the
press to perform these checks and to oversee the operation
of the press. They perform some of the checks themselves,
and assign some checks to the crewmembers whose work
they oversee and direct. They also discuss problems in the
office with the foremen. The men-in-charge are responsible
for the press on which they and their crew are working. The
men-in-charge consider themselves to be the boss of the crew
they are working with. They resolve minor ‘‘squabbles’’ or
disagreements among crewmembers as to such matters as job
assignments. They permit employees to go to lunch early
after the run has been completed. They serve as timekeepers
and are to report any tardiness on the part of crewmembers
but do not always report brief periods of tardiness unless it
becomes a problem. If they report the tardiness, the employ-
ees’ pay is docked. They have the authority to stop the press
and call maintenance for a malfunction as do journeymen
employees. They also fill out evaluation forms for assistants
they work with as do foremen, which forms are utilized by
Pressroom Manager Jerry Holmes in determining which as-
sistants will be promoted to apprentice. Neither the foremen
nor the men-in-charge have the authority to issue discipline
or to authorize the working of overtime, both of which re-
sponsibilities are reserved to Pressroom Manager Holmes.
Once given their assignment for the day the men-in-charge
make the determination as to where the members of their
crew will be assigned and direct their work during the course
of the shift. The men-in-charge perform substantial hands on
bargaining unit work whereas the foremen do not, except for
training and emergency situations. Foreman Wiseman testi-
fied he performs less than 30 minutes of bargaining unit
work per week, if that much. Holmes and Wiseman testified
the pressroom could not function without the men-in-charge
as the result of the size of the presses and various other re-
quirements on their time which make it impossible for them
to personally oversee the operations of the presses. Men-in-
charge also determine when the paper is of sufficient good
quality to start printing and fill out production reports re-
ferred to as alibi sheets reporting waste and various problems
encountered during the run and the reasons therefor. In addi-
tion to the operation of the press the men-in-charge deter-
mine what maintenance and replacements need to be made
on the press and they and their crew are sometimes required
to perform a ‘‘make ready’’ function rather than engage in
an actual pressrun for all or part of their shifts. Men-in-
charge also regularly serve as a substitute for unavailable
foremen who are undisputed 2(11) supervisors.
Charging Party, John Long, became a permanent man-in-
charge in April 1989 and was considered by Pressroom Man-
ager Holmes to be an excellent man-in-charge with good pro-
duction times, good quality, a good waste record who moti-
vated his crew well. In November 1989, Long filled out an
evaluation form for evaluating assistants for promotion to ap-
prenticeship for two assistants in his crew, G. B. Maynard
and James Dailey. He also wrote a letter recommending their
promotion to apprentice. Subsequently Maynard was pro-
moted while Dailey was not promoted. Long believed that
Dailey should have been promoted instead of other employ-
ees who were promoted with less seniority. Seniority is a
consideration for promotion but promotions are not deter-
mined solely by seniority. Foreman Wiseman testified that
following the promotions, employee James Dailey told him
that Long had said that Dailey had been ‘‘screwed’’ by
Holmes in not promoting him. Wiseman informed Holmes of
this and Holmes called Long into his office and told him, ac-
cording to Holmes, ‘‘that if he had problems with my deci-
sion that he needed to come talk to me about it. We reached,
needed to reach some sort of accord in my office, that when
he went back out there on that floor, that he needed to sup-
port my decisions.’’ According to Holmes, Long concurred
with this at the time of the meeting and did not argue about
it. Long testified that in November 1989 he heard that:
Dailey was not going to be promoted, but instead
there were younger employees that were going to be
promoted up over him. And so, I had talked with James
(Dailey) about it and we . . . discussed it. I asked him
if he wanted to me to go in and talk with Jerry
(Holmes) about it.
And so I went in and—he agreed . . . I did go in
and talk with Jerry (Holmes) about it. I explained to
Jerry that James (Dailey) was qualified and that he had
the seniority and that in accordance with our contract
the man should be moved up. Jerry’s response was, was
that these other men he had, had prior experience. In
fact they didn’t have prior experience. They’d never
worked in a newspaper shop before they had come to
this particular shop there. Like I say, they also had less
seniority. So, at any rate, being that was the first step
of a grievance procedure, the proper thing to do, that’s
what I went and did. And he disagreed and so, the
meeting was over with.
Long testified further that after this meeting there were a
number of small incidents which happened on the press
whereby Holmes was exerting pressure on his crew and that
whereas generally there had been ‘‘lax’’ (lull) times per-
753ATLANTA NEWSPAPERS
mitted during slow periods in recognition of the all out effort
required during high demand periods to get the paper out,
that Holmes and the foreman started cracking down on his
crew:
Particularly on Saturdays when we had to work a 17
hour shift. We came in at 6:15 in the morning and we
didn’t get off until 11:30 at night. You know, obvi-
ously, a pretty long time period there. Like I say, gen-
erally, when there was a lax (lull) time . . . they would
allow us to take little breaks. So during the period of
the first of the year of 1990 they started cracking down
and pretty well tried to keep us busy all the time during
the entire, roughly, 17 hour—17-1/2 hour time period
there.
Long testified further that there was an incident, wherein
during the course of a grievance filed by employee Bob
Stewart on his crew, Holmes had told Stewart that Long was
having him do all the dirty work rather than getting his jour-
neyman’s hands dirty. Long testified this happened in late
March and after Stewart told this to him, he went in to talk
to Holmes about it and Holmes denied that he had said this.
Long also testified about concerns of other employees who
had held but relinquished the man-in-charge position because
of alleged harassment by management and former employee
Robert Smith who had also been by-passed for a promotion
to apprentice. Long testified he had discussed with the other
employees what should be done about this and they had dis-
cussed going over Holmes’ head to remedy the situation but
he did not feel the timing was right and was waiting for an
opportunity to do so.
Long testified further that subsequently in April 1990 on
a Wednesday, he came into work and his locker had been
‘‘bashed in.’’ He reported this to Holmes and Holmes said
that if he found out who had bashed the door in, that person
would be fired and that he (Holmes) would see to it that he
would never work in a pressroom in the United States again.
Subsequently, that evening while Long was working a double
shift he talked with some employees on the night shift who
told him that Kim Hall, a man-in-charge on the night shift
had done this. He confronted Hall who admitted it and
apologized and told him and other employees that he had
been on ‘‘steroids and D balls,’’ ‘‘some kind of muscle
building pills of some kind.’’ ‘‘He was a weight lifter and
body builder and all this.’’ He said ‘‘he had been on these
steroids and D balls and that he was just on edge,’’ and that
he had thought that Long or someone in his crew had moved
his car in the garage where he parked. Hall said he had de-
cided to start at the top as Long was the man-in-charge of
the crew and this was why he had bashed in his locker. Long
relayed this information to Holmes. He subsequently learned
either that day or the day after that Holmes had called Hall
into his office and removed him as a man-in-charge and sus-
pended him for 30 days. Long testified further that on the
following Saturday this matter was a topic of discussion at
lunch and that foreman Phillip Wiseman, who was eating
lunch at the same table said ‘‘Well, John (Long), you know
if it would have been you, ‘. . . Jerry (Holmes) don’t like
(you) too much,’ . . . your ass would have been fired.’’
Long further testified that Wiseman also said that he had
overheard a conversation Holmes had with Plant Manager
Robert Guthrie and had not told Guthrie about the ‘‘steroids
and the D balls.’’
Long testified that following this conversation with
Wiseman he contacted George Alford, Respondent’s labor re-
lations manager by calling him the following Monday and
discussed it with him. Long asked Alford if he (Long) could
meet with him and with Stan Pantel, Respondent’s vice
president of operations. Alford agreed to a meeting but sug-
gested that plant manager Robert Guthrie was the proper per-
son to meet with Long. Long agreed to met with Guthrie the
following Tuesday but Alford was unable to attend. Long
met with Guthrie on May 1. Long testified he discussed the
failure to promote Dailey and the other incidents of alleged
harassment by Holmes and discussed the entire locker bash-
ing situation and that he ‘‘was asking for some kind of relief
to the kind of treatment that we was getting.’’
Long testified that subsequently, on Saturday, May 5,
1990, Foreman Wiseman asked Long to come into Holmes’
office and in the presence of Wiseman, Holmes told Long
he would not tolerate anyone disagreeing with his manage-
ment decisions and questioning his managerial abilities and
that ‘‘No one, will go over my head. Holmes then said,
‘‘You’re off for the rest of the day with pay.’ and as of
Monday, you’ll be a journeyman and you’ll pick your off
days.’’ At that point Long said, ‘‘Well, Jerry, this is dis-
cipline,’’ and ‘‘I want a union representative present. Holmes
said, ‘‘There will be no union representative present, and the
meeting is over with.’’ On the following Friday, Long met
with Vice President of Operations Stan Pantel and discussed
the above. He also filed a grievance. Both Holmes and Fore-
man Wiseman denied that Holmes had stated that Long was
demoted because of going over Holmes head but contended
that Holmes had inquired if this was the reason for his demo-
tion and that Holmes said it was not.
Foreman Wiseman testified concerning the conversation
with Long at lunch following the incident involving Hall that
Long was questioning Holmes’ decision not to fire Hall and
that Long had stated that if he bashed in a locker, he would
have been fired and that if Hall came anywhere near him,
his family would own a piece of the newspaper (referring to
a lawsuit). Wiseman reported these statements to Holmes.
Wiseman denied having told Long that if he had bashed in
his locker he would have been fired or that he had told Long
that Holmes had not told Guthrie the whole story.
Guthrie testified that at the meeting between himself and
Long, Long reiterated the locker incident and that had heard
that Holmes had not told Guthrie all of the circumstances of
this incident to Guthrie. Guthrie told Long that his statement
was the same as he had heard from Holmes. Guthrie testified
he told Long that he was probably instrumental in Holmes’
decision not to discharge Hall as he thought that if Hall was
otherwise a good employee and worth salvaging they should
make every effort to do so. Guthrie testified the conversation
went from the locker incident to the differing management
styles of Long and Holmes, that he had been involved in
some management courses that he thought would benefit
Holmes, that his crew was one of the better performers and
that some of his employees ‘‘had gotten a raw deal’’ con-
cerning some promotions to apprentice. Guthrie stated he be-
lieved Long was speaking on behalf of himself rather than
on behalf of his fellow employees during the conversation.
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Analysis
The General Counsel contends that Long was demoted due
to his participation in concerted activities with his fellow em-
ployees citing Holmes’ testimony that he had told Long he
had ‘‘no choice but to remove him from the job,’’ because
Long was ‘‘creating unrest out there on the floor because of
the decisions I was making.’’ The General Counsel notes that
Holmes testified that Long was an excellent man-in-charge.
In support of her position that Long was engaged in pro-
tected concerted activity, the General Counsel also cites the
testimony of Guthrie that Long had stated that his crew had
gotten ‘‘a raw deal’’ in reference to employees not being
promoted, that he wanted to take care of the employees on
his press and that if his crew performed well and finished
early, they should be permitted to leave. The General Coun-
sel also contends that although ‘‘Holmes denied making any
reference to Long’s meeting with Guthrie on May 1, the
credible evidence warrants a contrary finding.’’ In this regard
the General Counsel relies on Holmes’ testimony that the
topic came up, although Holmes testified that it was brought
up by Long who asked whether the demotion was due to his
meeting with Guthrie. The General Counsel contends that
Long’s action in meeting with Guthrie on May 1, was the
final straw in Holmes’ view and that Holmes retaliated by
demoting Long on May 5.
The General Counsel further contends that the evidence
‘‘clearly demonstrates that on May 1, Long acted on his be-
half and that of his fellow employees. In this regard the Gen-
eral Counsel relies on Long’s testimony that he ‘‘had dis-
cussed going to higher management, for months, with fellow
employees,’’ and argues that the ‘‘employees not only knew
that at some point Long would proceed, but welcomed such
action.’’ The General Counsel concludes that the demotion of
Long on May 5 was in retaliation for his pursuit of his rights
under the Act and thus violated Section 8(a)(1) of the Act,
citing Meyers Industries, 281 NLRB 882 (1986). The Gen-
eral Counsel also contends that Long was ‘‘acting within the
rights guaranteed under the collective bargaining agree-
ment,’’ as the ‘‘handbook specifically authorizes employees
believed subjected to harassment to contact the next higher
level of management, when discussion with the immediate
supervisor is not possible or desirable.’’ The General Coun-
sel contends that this is what Long did and that his ‘‘asser-
tion of a right contained in the contract is a continuation of
the concerted action that generated the agreement,’’ and that
‘‘accordingly, the assertion of said rights affects all employ-
ees covered by the agreement’’ and that ‘‘a demotion based
thereon is unlawful,’’ citing City Disposal Systems, [465 U.S.
822 (1984)].
The Respondent defends on three separate grounds. Ini-
tially it contends that this decision on the complaint should
be deferred to the arbitration award issued on November 5,
1990, wherein the arbitrator denied the grievance brought on
Long’s behalf concerning the demotion by the Union under
the contractual grievance procedure. Secondly, it contends
that Long was a supervisor as a man-in-charge and that his
activities were not protected under the Act. Finally, it con-
tends that the actions of Long were individual actions, not
concerted activity within Section 7 of the Act and were thus
unprotected. In support of its position that this matter should
be deferred to the arbitration award of November 5, 1990,
the Respondent asserts that on May 10, 1990, the Union filed
a grievance with Respondent protesting Long’s May 5, 1990
removal from the man-in-charge position and that pursuant to
the grievance and arbitration provision of the parties then ex-
isting collective-bargaining agreement, an arbitration was
held on September 10, 1990, before an impartial arbitrator,
that the Charging Party and the Respondent were represented
by counsel at the hearing and both presented testimony and
documentary evidence at the hearing and made arguments at
the hearing and submitted postarbitration briefs to the arbi-
trator. The Respondent notes that in its brief on behalf of
Charging Party Long the Union argued that the Respondent
violated the Act by demoting Long for engaging in ‘‘the pro-
tected activity of complaining about unfair treatment to Rob-
ert Guthrie, Production Manager of the Newspaper.’’ The
Respondent also notes that on November 5, 1990, Arbitrator
Marcus issued a Decision and Award finding no violation of
the agreement by Respondent’s removal of Long from the
man-in-charge position. The Respondent thus contends that
‘‘Because the arbitrator considered the identical facts under
consideration in this case, and because the arbitrator’s deci-
sion is not clearly repugnant to the Act, decision on the Gen-
eral Counsel’s complaint should be deferred. In support
thereof, the Respondent cites Dennison National Co., 296
NLRB 169 (1989), wherein the Board discussed the criteria
for deferral to an arbitration award and concluded that:
The Board will find that the arbitrator has adequately
considered the unfair labor practice if (1) the contrac-
tual issue is factually parallel to the unfair labor prac-
tice issue, and (2) the arbitrator was presented generally
with the facts relevant to resolving the unfair labor
practice. Olin Corp., 268 NLRB 573, 574 (1984); Dif-
ferences, if any, between the contractual and statutory
standards of review are weighed by the Board as part
of its determination under the Spielberg standards of
whether an award is clearly repugnant to the Act.
and Olin Corp., supra at 574, wherein the Board set out the
test for deferral to an arbitration award:
We would find that an arbitrator has adequately consid-
ered the unfair labor practice if (1) the contractual issue
is factually parallel to the unfair labor practice issue,
and (2) the arbitrator was presented generally with the
facts relevant to resolving the unfair labor practice. In
this respect, differences, if any, between the contractual
and statutory standards of review should be weighed by
the Board as part of its determination under the
Spielberg standards of whether an award is ‘‘clearly re-
pugnant’’ to the Act. And, with regard to the inquiry
into the ‘‘clearly repugnant’’ standard, we would not
require an arbitrator’s award to be totally consistent
with Board precedent. Unless the award is ‘‘palpably
wrong,’’ i.e., unless the arbitrator’s decision is not sus-
ceptible to an interpretation consistent with the Act, we
will defer.
Finally, we would require that the party seeking to
have the Board reject deferral and consider the merits
of a given case show that the above standards for defer-
ral have not been met. Thus, the party seeking to have
the Board ignore the determination of an arbitrator has
the burden of affirmatively demonstrating the defects in
the arbitral process or award.
755ATLANTA NEWSPAPERS
The Respondent thus argues that the arbitrator ‘‘was pre-
sented a contractual issue factually parallel to the unfair labor
practice issue.’’ Respondent further contends that the arbitra-
tion award is not ‘‘clearly repugnant’’ to the Act as it is not
‘‘palpably wrong’’ because it ‘‘is susceptible to an interpre-
tation consistent with the Act.’’ The Respondent further
notes that the Union in its brief to the arbitrator argued that:
John Long in discussing with Holmes and higher man-
agement working condition[s], the abilities and quali-
fications of employees in his crew, or the decisions
made by Holmes was engaged in activity protected by
the National Labor Relations Act.
The Respondent thus contends that the facts and issues
presented in the arbitration case were identical to that of the
instant case and were fully considered by the arbitrator.
With respect to the deferral issue, the General Counsel
also cites Olin Corp., supra, and contends that ‘‘the Board
deems deferral appropriate if the Arbitrator has adequately
considered the unfair labor practice issue.’’ The General
Counsel notes the issues delineated by the arbitrator were:
(1) Did the company violate the collective bargaining
agreement when it unilaterally demoted John Long
from man-in-charge to journeyman pressman on or
about May 5, 1990; and (2) Did the Company deny
John Long union representation in violation of the col-
lective bargaining agreement at which it unilaterally de-
moted him.
The General Counsel cites the arbitrator’s conclusion that
it was not necessary to determine (1) If Holmes had reason
to believe Long was undermining Holmes’ management of
the pressroom; (2) if Long’s demotion was disciplinary; (3)
whether the Company had just cause to demote Long, and;
(4) who won the swearing contest between Holmes and
Long. The arbitrator examined the various contract provi-
sions and found no basis therein to resolve the issue. The ar-
bitrator then decided this case by utilizing the past practice
of the parties in reliance on the testimony of Holmes and
Wiseman that men-in-charge had been unilaterally demoted
in the past by Respondent without generating the filing of
grievances by the Union and concluded that this established
a past practice supporting the Respondent’s unilateral right to
demote men-in-charge. Accordingly, the General Counsel
contends that the issue whether the Company violated the
collective-bargaining agreement when it unilaterally demoted
Long is not parallel to the unfair labor practice issue and the
arbitrator was not presented generally with the necessary
facts relevant to resolve the unfair labor practice and that de-
ferral to the arbitration award is not warranted citing in sup-
port thereof Barton Brands, Ltd., 298 NLRB 976 (1990), and
Armour & Co., 280 NLRB 824 (1986).
My review of the foregoing convinces me that deferral is
not appropriate in this case. Initially it is clear that the arbi-
trator specifically refrained from considering the very issues
which would be involved in making a determination as to
whether the Respondent had violated the Act by its demotion
of Long and decided the case solely on his finding that the
past practice of the parties established that on some occa-
sions men-in-charge had been unilaterally demoted by the
Respondent without the filing of grievances by the Union.
Thus while the contractual provisions of the contract could
conceivably have permitted the unilateral demotion of men-
in-charge as the arbitrator found that the past practice did,
the determination by the arbitrator did not address in any
manner whether the demotion of John Long was for just
cause. As the General Counsel contends, an employer may
be found not to have violated the contractual agreement of
the parties or the established past practice of the parties but
may nonetheless be found to have violated its statutory obli-
gations under the Act. Thus, although the arbitrator found
that the Respondent had the right to unilaterally demote men-
in-charge under established past practice, he did not address
the statutory issues as to whether the Respondent’s conduct
in demoting Long was motivated by his engagement in con-
certed activities protected by the Act, or whether he was ex-
cluded from the protection of the Act as a statutory super-
visor. See Olin Corp., supra, and Barton Brands, Ltd., supra.
See also Lewis G. Freeman Co., 270 NLRB 80 (1984),
wherein the Board deferred to an arbitrators award upholding
a suspension of one employee and reducing the suspension
of another employee to a written warning. In Freeman,
supra, the Board found that ‘‘the arbitrator adequately ruled
on the statutory issue.’’
The supervisory issue
The Respondent has also asserted as an affirmative defense
that Charging Party Long was a supervisor within the mean-
ing of Section 2(11) of the Act and was thus excluded from
the protection afforded employees under Section 7 of the
Act, citing Beasley v. Food Fair of North Carolina, 416 U.S.
659, 660 (1974), and Parker-Robb Chevrolet, 262 NLRB 402
(1982), in support thereof. Section 2(11) of the Act sets out
the following definition ofa supervisor:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively
to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the use
of independent judgement. [Emphasis added.]
29 U.S.C. § 152(11).
The Respondent also asserts that it is well established that
Section 2(11) is to be read in the disjunctive and that posses-
sion of any one of the enumerated indicia of supervisory sta-
tus is sufficient to render an employee a statutory supervisor
citing George C. Foss Co., 270 NLRB 232 (1984); NLRB v.
Edward G. Budd Mfg. Co., 169 F.2d 571, 576 (6th Cir.
1948), cert. denied 335 U.S. 908 (1949), provided that the
authority is exercised with independent judgment on behalf
of management citing Hydro Conduit Corp., 254 NLRB 433,
437 (1981). The Respondent contends that the men-in-charge
positions generally and the Charging Party’s position in par-
ticular are supervisory in nature within the meaning of Sec-
tion 2(11) of the Act. The General Counsel contends that the
men-in-charge and Charging Party Long in particular ‘‘are
essentially serving as quality control inspectors’’ and are not
supervisors as they do ‘‘not have the authority to hire, fire,
layoff, or discipline employees.’’
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
I find based on the testimony of Pressroom Manager Jerry
Holmes, Foreman Phillip Wiseman, Man-in-charge Timothy
Bagby, and Man-in-charge Mike McDevitt whom I credit
with respect to the authority and duties and responsibilities
of the men-in-charge that notwithstanding their historical in-
clusion in the bargaining unit, the men-in-charge, including,
Charging Party Long, have been at all times relevant here su-
pervisors within the meaning of the Act and find the cases
cited by the Respondent above support its position that Long
was at all times material a supervisor and excluded from the
protection of the Act. Initially, the undisputed evidence
shows that the men-in-charge are promoted from bargaining
unit journeymen pressmen positions and receive an increment
in pay above that of the contractually specified minimum rate
set out in the agreement for the men-in-charge positions. The
men-in-charge receive unlimited sick leave days not enjoyed
by other bargaining unit members. They also are permitted
to park in an area designated for managerial and supervisory
employees. The men-in-charge are in charge of a crew con-
sisting of seven to eight employees who are classified as
journeymen, apprentices, and assistants as was Long. They
are considered the boss of the crew and are also referred to
as crew chiefs. New employees are told they are to follow
the instructions of the men-in-charge. The men-in-charge re-
ceive the assignment for their crew. The men-in-charge and
their crew operate a printing press 150 feet high, 350 feet
long, and 11 feet wide on four different levels or floors.
Each of the printing presses operated by Respondent in its
downtown pressroom are valued in excess of $12 million.
The men-in-charge oversee the operation of the press and are
in charge of and responsible for the running of various news-
paper editions and other publications and are also responsible
for the makeready of the presses between printings when var-
ious phases of maintenance are performed. The men-in-
charge carry out these responsibilities on their own and out
of the presence of the foremen the vast majority of the time.
They move about the printing press and oversee the work of
the members of their crew. Although they have a checklist
of operations to perform, it is their responsibility to assign
crewmembers to various tasks and to delegate work to be
performed by them. The men-in-charge determine when the
quality of the paper is good enough to commence a printing
run. They are accountable for the quality of the paper and
must account for and explain waste and any problems with
the equipment. In so doing I find the men-in-charge and
Long in particular, at all times material, had significant au-
thority over and responsibility for their crews with respect to
the assignment of work to them and their direction in car-
rying out their tasks and that this authority required the use
of independent judgment. While it is true that Long and the
other men-in-charge did not have the authority to hire, fire,
or layoff or otherwise discipline employees or to grant over-
time, they possessed other indicia of supervisory status. In
this regard the men-in-charge keep the time of employees on
their crew and have exercised some discretion as to whether
to report brief periods of tardiness to management. The men-
in-charge also have the authority to independently repair me-
chanical problems on the press. The men-in-charge have the
authority to and regularly do resolve ‘‘squabbles’’ or dis-
agreements that arise among members of their crew resolving
or adjusting potential grievances informally. The men-in-
charge are also responsible for reporting any misconduct of
employees to the foreman or the pressroom manager. The
men-in-charge and the foremen fill out evaluation forms for
assistants in their crew concerning their recommendations for
promotion to apprentices. The men-in-charge are the first
step in the line of progression for promotion to foreman and
are invited to attend foremen’s meetings although they are
not required to attend.
I find that all the foregoing and the record as a whole sup-
ports a finding that the men-in-charge and Long at all times
material were supervisors within the meaning of Section
2(11) of the Act. I also find, that assuming arguendo, Long
was demoted because of his engagement in concerted activi-
ties on behalf of other employees concerning their terms and
conditions of employment, this conduct on his part was not
protected under Section 7 of the Act as he is excluded from
that protection because of his supervisory status. There is no
evidence here of any coercion of Long to violate the law or
discouragement from participation in Board process or griev-
ance procedures which would compel the protection of the
Act to be accorded Long despite the general exclusion of
statutory protection to supervisors. In view of the foregoing
I find it unnecessary to make credibility determinations as to
what transpired concerning the versions of Guthrie and Long,
Wiseman, and Long, and Holmes, Wiseman and Long at
their respective meetings as in any event under any of the
versions, Long’s engagement in concerted activities on behalf
of himself and/or fellow employees was not protected under
Section 7 of the Act as he was a 2(11) supervisor excluded
from the protection of the Act. I, accordingly, find the com-
plaint should be dismissed. Beasley v. Food Fair, supra, and
Parker Robb, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. This case should not be deferred to the arbitrator’s
award of November 5, 1990.
4. At all times material, John Long was a supervisor with-
in the meaning of Section 2(11) of the Act and was excluded
from the protection of Section 7 of the Act, and the com-
plaint should be dismissed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed in its entirety.