Bakersfield Californian

National Labor Relations Board - Board Decisions

Apr 14, 1995

316 N.L.R.B. 1211 (N.L.R.B. 1995)

1211
316 NLRB No. 183
BAKERSFIELD CALIFORNIAN
1 The 13 positions in dispute are: secretary to the retail advertising
manager; secretary to the classified advertising manager; pagina-
tion/systems coordinator; color coordinator; capital correspondent;
assistant photo director; assistant accent/features editor; three assist-
ant news editors; and three assistant metro editors.
At the hearing the parties stipulated that the following positions
should be excluded as supervisory: advertising telemarketing super-
visor; classified outside sales supervisor; outside sales assist super-
visor; director of advertising sales and marketing; marketing services
supervisor; major account sales supervisor; special sections editor;
corporate communications director; pre-press supervisor; pre-press
manager; promotions manager; accent/features editor; audiotext su-
pervisor; business editor; graphic arts editor; news editor; photo di-
rector, metro editor; night editor; and sports editor. The parties fur-
ther stipulated that the secretary to the director of advertising sales
and marketing, the circulation administrative clerk, and the secretary
to the corporate communications director are confidential employees
and therefore excluded from the bargaining unit.
The Bakersfield Californian, Employer-Petitioner
and Bakersfield Newspaper Guild, Local 202,
AFL–CIO, CLC
Bakersfield Newspaper Guild, Local 202, AFL–CIO,
CLC, Union-Petitioner and The Bakersfield
Californian. Cases 31–UC–241, 31–UC–242, and
31–UC–243
April 14, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
Upon petitions filed under Section 9(b) of the Na-
tional Labor Relations Act, a consolidated hearing was
held on various dates in September, October, and De-
cember 1992 and January, February, and March 1993,
before a designated hearing officer of the National
Labor Relations Board. On July 26, 1993, pursuant to
Section 102.67(h) of the Board’s Rules and Regula-
tions, the cases were transferred to the Board for deci-
sion.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
Having carefully reviewed the entire record in this
proceeding, including the posthearing briefs filed by all
the parties, the Board makes the following findings:
1. The hearing officer’s rulings made at the hearing
are free from prejudicial error and are affirmed.
2. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction.
3. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
4. The Bakersfield Californian (the Employer) pub-
lishes a daily newspaper with a circulation of approxi-
mately 80,000 in the Bakersfield, California area. The
parties have had a collective-bargaining relationship
since at least 1959. The most recent contract between
the parties expired May 27, 1992. The bargaining unit
described in that agreement covers all employees of
the Employer in the following departments: property
management, financial, personnel, advertising sales,
marketing and promotions, circulation, and editorial,
excluding specifically listed positions.
In Case 31–UC–241, the Employer seeks to exclude
from the unit 13 positions that it claims are confiden-
tial, managerial, or supervisory.1 In Case 31–UC–242,
the Employer seeks to exclude the 17 district managers
in the circulation department it claims are managerial
and/or supervisory.
In Case 31–UC–243, the Union sought to have the
three county correspondents accreted to the unit. At the
hearing, however, the Union withdrew its contention as
to the county correspondents and agreed that they were
properly excluded.
I. BACKGROUND
The Employer is engaged in the publication and dis-
tribution of a daily newspaper, The Bakersfield Cali-
fornian, in Bakersfield, California. The Employer’s
president and chief executive officer is Michael Fisch.
The Employer’s operations are divided into six divi-
sions: advertising sales and marketing, news/editorial,
circulation/operations, corporate communications, fi-
nance, and human resources. The head of each division
reports directly to Fisch. The disputed employees hold
various positions within the divisions.
II. ALLEGED CONFIDENTIAL EMPLOYEES
A. Secretary to Retail Advertising Manager
Retail Advertising Manager Janet Hefner is in the
advertising sales and marketing division and reports to
John Wells, the director of that division. Hefner’s sec-
retary is Denise Taylor. Taylor’s position was created
in November 1991. The Employer contends that Taylor
should be excluded from the unit as a confidential em-
ployee. The Union contends she is not confidential and
should be included in the unit.
Hefner supervises all personnel in the retail advertis-
ing department, represents the Employer on the bar-
gaining committee in labor negotiations, and handles
grievances up to the final stage before arbitration.
Taylor’s main function is to perform typical sec-
retarial duties. She maintains and organizes depart-
mental files and answers the phone. She receives all
the departmental mail, including Hefner’s ‘‘confiden-
tial’’ mail, which she opens, reads, and distributes. She
helps Hefner organize her day and schedules her cal-
endar. Taylor also has access to Hefner’s office and
computer files.
In addition, Taylor handles confidential personnel
information on bargaining unit members. She types
and processes various documents including payroll in-
formation, change of status forms, disciplinary actions
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for unit members, and hiring information. As a result,
Taylor may receive information before either the
Union or the employee involved. For example, Taylor
typed the documentation of a conversation among Hef-
ner, another supervisor, and an employee that resulted
in the employee’s discharge. Taylor has access to in-
formation from human resources regarding investiga-
tions of employee disciplinary matters. Taylor also
may type Hefner’s notes from bargaining sessions with
the Union.
In addition, Taylor is involved in the budget process
for the retail advertising department. She has access to
information with respect to departmental staffing needs
for the coming year including the projected salaries for
the employees.
The Employer contends that Taylor would not be an
effective secretary to Hefner if Hefner had to isolate
labor relations materials from her.
The Board’s long-established test for determining
whether an employee is a confidential employee is
whether the employee ‘‘assist[s] and act[s] in a con-
fidential capacity to persons who formulate, determine,
and effectuate management policies in the field of
labor relations.’’ B. F. Goodrich Co., 115 NLRB 722,
724 (1956). The Board’s test, often referred to as the
‘‘labor nexus’’ test, was approved by the Supreme
Court in NLRB v. Hendricks County Rural Electric
Membership Corp., 454 U.S. 170 (1981).
Although Hefner, especially by virtue of her position
on the Employer’s negotiating team, appears to formu-
late, determine, and effectuate management policies in
the field of labor relations, Taylor does not assist Hef-
ner in a confidential capacity. There is no evidence
that Taylor types any contract proposals for Hefner. In-
stead, Taylor’s assistance is limited to typing Hefner’s
notes of the Employer’s collective-bargaining sessions
with the Union, information which is already known to
the Union.
Primarily, Taylor performs secretarial duties which
include filing and maintaining confidential information
as well as typing documents relating to discipline and
grievances. In the course of her duties, Taylor may be-
come aware of such information before it is formally
presented to the employees involved or the Union.
That information, however, is in the process of being
forwarded to the interested parties and her mere expo-
sure to the information does not make her a confiden-
tial employee. The Board has long held that merely
having access to confidential information does not es-
tablish confidential status. Rhode Island Hospital, 313
NLRB 343 (1993); Associated Day Care Services, 269
NLRB 178 (1984). Nor does the typing of disciplinary
matters, grievances, or other material relating to per-
sonnel problems render an employee confidential.
Rhode Island Hospital, supra; ITT Grinnell Corp., 212
NLRB 734 (1974). Accordingly, we find that Taylor is
not a confidential employee.
B. Secretary to Classified Advertising Manager
Wayne Wedgeworth is the classified advertising
manager. He, like Hefner, is also in the advertising
sales and marketing division and reports to the direc-
tor, John Wells. Wedgeworth’s secretary is Patricia
Bailey. The Employer contends, contrary to the Union,
that Bailey is a confidential employee and therefore
should be excluded from the unit.
Wedgeworth is responsible for all personnel matters
in the classified advertising department. He is part of
the Employer’s midmanagement team involved in
labor strategy and, like Hefner, is on the negotiating
committee.
Bailey performs general secretarial duties for
Wedgeworth and other classified advertising depart-
ment supervisors and managers. She answers tele-
phones, types, word processes, files, and prepares a
monthly report on staffing revenues. She opens and
distributes mail for the department including personal
correspondence.
Bailey also maintains files on bargaining unit mem-
bers and types and processes materials including hiring
requisitions, postings, performance evaluations, payroll,
change in status forms, justifications for staffing, and
documents related to discipline, termination, suspen-
sion, and grievance investigation of unit members. The
documents are often typed by her prior to being given
to the employees, the Union, or human resources. In
addition, Bailey types Wedgeworth’s notes from dis-
cipline investigations, pagination committee meetings,
and bargaining sessions.
Bailey also has access to Wedgeworth’s office and
computer files, including his files on labor relations
policies and labor strategy.
Wedgeworth, like Hefner, formulates, determines,
and effectuates management policies in the field of
labor relations. B. F. Goodrich Co., supra. Most of
Bailey’s duties, however, do not involve assisting
Wedgeworth in a confidential capacity. Thus, Bailey,
like Taylor, primarily performs typical clerical duties.
Like Taylor, Bailey also has access to and processes
confidential information relating to employee dis-
cipline, evaluations, and grievances. She also may be-
come aware of information before it is given to the
Union or the employee. As noted, however, that infor-
mation is in the process of transmittal to the Union or
the employee and mere access to that information does
not make Bailey a confidential employee. Rhode Island
Hospital, supra; Associated Day Care, supra.
Also like Taylor, Bailey does not act in a confiden-
tial capacity with respect to Wedgeworth’s attendance
at negotiations. Bailey’s typing of Wedgeworth’s bar-
gaining session notes is merely to record information
1213BAKERSFIELD CALIFORNIAN
2 The Employer also alleges that Stone-Ingalls fills in for Pre-Press
Manager Gray and Pre-Press Supervisor Farley when they are absent
or otherwise not available. The Employer also asserts that Stone-
Ingalls gives Farley input on employees’ work performance, can au-
thorize employees to work overtime, can call in additional help,
trains production staff in color work, and makes recommendations
to employees’ supervisors. Both Gray and Farley were stipulated by
the parties to possess statutory supervisory indicia. An employee
who substitutes for a supervisor may be deemed a supervisor only
if that individual’s exercise of supervisory authority is both regular
and substantial. Hexacomb Corp., 313 NLRB 983 (1994). Here, the
record shows that Stone-Ingalls’ substitution is limited to such peri-
ods as vacations, appointments, or other unscheduled occasions, and
thus is insufficient to establish supervisory status. Id. Moreover, the
record evidence set forth above, does not establish, without more,
that Stone-Ingalls possesses statutory supervisory authority.
3 NLRB v. Yeshiva University, 444 U.S. 672, 682 (1980); NLRB v.
Bell Aerospace Co., 416 U.S. 267, 288 (1974), quoting Palace Laun-
dry Dry Cleaning, 75 NLRB 320, 323 fn. 4 (1947).
the Union already knows and there is no evidence that
she has advance notice of any bargaining proposals.
Bailey, however, also has access to Wedgeworth’s
labor strategy notes. Under Pullman Inc., 214 NLRB
762 (1974), employees are confidential if they have
regular access to confidential information which, if
prematurely disclosed to the union, would prejudice an
employer’s bargaining strategy in any future negotia-
tions. In Pullman, supra, employee labor estimators
were found to be confidential employees because they
were privy to the precise labor rates to which the em-
ployer would agree in a future collective-bargaining
agreement. Although the strategy notes involved here
do not reveal the exact terms the Employer would be
willing to accept in any subsequent negotiations, such
information is a particularly sensitive matter with re-
spect to contract negotiations and, if revealed to the
Union, could seriously impair the Employer’s ability to
negotiate. Accordingly, because Bailey’s access to
Wedgeworth’s labor strategy notes would potentially
give the Union an unfair advantage during future nego-
tiations, we find that Bailey is a confidential employee
and therefore exclude her from the unit.
III. ALLEGED MANAGERS
A. Color Coordinator
Martha Stone-Ingalls holds the position of color co-
ordinator. She reports to Pre-Press Manager DeWayne
Gray in the corporate communications department
headed by Director Bob Johnson. The Employer con-
tends that Stone-Ingalls is a manager and thus should
be excluded from the unit. The Union claims she is not
managerial and therefore should remain in the unit.
Stone-Ingalls is the Employer’s color specialist who
is responsible for the quality of all color advertise-
ments produced by the Employer. She examines the
advertising materials submitted by the advertiser to de-
termine whether they meet the Employer’s color qual-
ity standards; if they do not, she has the authority to
reject the materials and to contact the customer to see
if other materials are available.
Once the material is accepted, Stone-Ingalls coordi-
nates among the advertisers, the advertising depart-
ment, advertising production, and the pressroom. She
is the person to be contacted on all color advertising
problems. She advises production operators as to the
requirements for color separations and determines how
the advertisements are to be produced to meet the
needs of both the advertiser and the Employer’s pro-
duction department. Stone-Ingalls also reviews the
press diagram to ensure that all advertisements are in
their proper place.
After the prepress production is completed a color
proof is pulled from the press which Stone-Ingalls
checks to see that it meets the advertiser’s specifica-
tions. She also examines the printed papers as they
come off the press. She has the authority to reject the
printed copy and direct that an advertisement be
redone. She can also ‘‘kill color’’ if the problem can-
not be corrected and she can also stop the presses at
any point in the production process. If a problem oc-
curs at night or on weekends, she is contacted at home.
Although the Employer’s advertising department has
a rate card for regular advertising pricing, it does not
include prices for special advertising sections or com-
mercial printing jobs. When special requests come in,
Stone-Ingalls is consulted by the advertising depart-
ment for an estimate of the Employer’s cost for time
and materials based on such factors as the number of
proofs required, the number of revisions a particular
client usually wants, and how well the client meets its
advertisement deadlines. In addition, Stone-Ingalls sets
the charges for multicolor advertisements by consider-
ing such factors as the number of photos and the
amount of ink involved. If a customer is dissatisfied
with the advertisement and requests an adjustment in
the bill, Stone-Ingalls will be consulted about the qual-
ity of the advertisement and whether a refund is in
order. She has authorization to adjust bills for cus-
tomers and vendors up to $250.
Stone-Ingalls attends weekly meetings with the man-
agers and supervisors, weekly production planning
meetings, and monthly quality control meetings. She
receives the standard managerial benefits package in-
cluding paid parking.2
The Board, with Supreme Court approval, has long
defined managerial employees as those who:
[F]ormulate and effectuate management policies
by expressing and making operative the decisions
of their employer, and those who have discretion
in the performance of their jobs independent of
their employer’s established policy. [General Dy-
namics Corp., 213 NLRB 851, 857 (1974).]3
The evidence does not establish that Stone-Ingalls
formulates management policy or exercises discretion
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Employer also contends that Coats, like Stone-Ingalls, can
direct the work of employees, change work hours, require overtime,
call-in additional help, and comment on employees’ work perform-
ance to their supervisors. Coats also counseled an employee for un-
acceptable work and, after discussions with Pre-Press Manager Gray,
reduced that employee’s computer access. The Employer, however,
does not allege, nor do we find from the evidence set forth above,
that Coats is a statutory supervisor.
in the performance of her job independent of the Em-
ployer’s established policy. Stone-Ingalls has technical
and artistic skills. However, technical or artistic exper-
tise which may involve some discretion or judgment
does not confer executive type status. See General Dy-
namics Corp., supra at 858.
The Employer likens Stone-Ingalls to the estimators
in Aeronca, Inc., 221 NLRB 326, 328 (1975), and
General Dynamics Corp., supra at 862, and the quality
assurance project administrators and senior quality as-
surance specialists in General Dynamics, supra at 862–
863, who were found to be managerial employees or
supervisors.
In Aeronca, supra, the employer manufactured com-
ponent parts for aircrafts. The estimators prepared pro-
jections on the cost of performing contracts on which
the employer intended to bid by considering projected
profits, wage increases, and cost-of-living allowances.
Those estimates were used by the employer to deter-
mine the price to quote to potential customers. The es-
timators also assisted in negotiating new contracts or
add-on contracts with customers by participating as a
member of a contracts team which also included per-
sonnel from contracts and finance and the director of
pricing and estimating. Since the estimators were in-
strumental in setting the price of the employer’s prod-
uct and assisted in negotiating contracts with cus-
tomers, the Board found them to be managerial em-
ployees. The differences in job duties and responsibil-
ities between the estimators in Aeronca, supra, and
Stone-Ingalls are substantial. Stone-Ingalls’ duties are
considerably less complex and more limited. Her main
function is to ensure the proper color quality of a
newspaper’s advertisements; only incidentally does she
prepare estimates, and then only for special advertising
sections.
The estimators in General Dynamics, supra, are
similarly distinguishable. In that case, the employees
estimated the cost of aerospace projects for customers.
Their estimates used such complex information as pro-
jected overhead, taxes, maintenance costs, employee
benefits costs, and direct labor costs. The price esti-
mators also were responsible for encoding and assem-
bling all of the necessary information for presentation
to the contracts department who then presented it to
aerospace customers. This indepth estimating is far
more sophisticated and clearly involves more discre-
tion than Stone-Ingalls’ estimate of the cost of a color
advertisement in a local newspaper.
The quality assurance project administrators and
senior quality assurance specialists in General Dynam-
ics, supra, are also distinguishable. The administrators’
duties included one or more of the following: over-
seeing the quality assurance of the F-111 or DC-10 air-
planes, negotiating budget adjustments, coordinating
quality among various departments, and representing
the employer with respect to customer relations. The
specialists reviewed all new contracts to ensure that
engineering specifications and designs, manufacturing
methods, and materials and processes would result in
a product acceptable to both the employer and the cus-
tomer. To this end the specialists reviewed the skills
required, implemented whatever procedures in the
manufacturing process that they thought were nec-
essary, and discontinued those functions that they
found superfluous. Again, these duties and responsibil-
ities differ markedly from Stone-Ingalls’ job of ensur-
ing that color advertisements are properly priced, pro-
duced, and displayed in a daily newspaper.
Accordingly, we find that Stone-Ingalls is not a
manager and that she should remain in the unit.
B. Systems/Pagination Coordinator
Bonnie Coats, the systems/pagination coordinator,
also reports to Pre-Press Manager DeWayne Gray. The
Employer argues Coats should be excluded from the
unit as a manager. The Union contends that she is an
employee.
Coats is the Employer’s computer specialist. She is
responsible for prepress computer systems hardware
and software. She researches and makes recommenda-
tions on the purchase of systems hardware and soft-
ware and makes sure that it is properly installed. She
handles troubleshooting and has formulated a backup
plan for emergency situations. She developed and im-
plemented the prepress computer system policies. She
monitors the system and can report violators. She can
take down the prepress equipment if necessary. She
trains employees on the computer systems. She in-
structs employees on the use of the DAWN computer
system and holds update meetings.
Coats can purchase equipment for the prepress sys-
tems. She submits requisitions for computer equipment
and her requests are invariably granted. She also can
return equipment to vendors without checking with
Manager Gray. Coats is authorized to make purchases
in excess of the usual $250 limit to keep the systems
running in an emergency. In addition, in order to keep
the systems operational, Coats has called in a service
technician at hours not covered by the service contract
(on weekends or after 5 p.m.), thus incurring additional
costs to the Employer. She receives the standard mana-
gerial benefits package.4
Coats is on the Employer’s pagination committee.
At the request of the Employer, she has been evaluat-
1215BAKERSFIELD CALIFORNIAN
5 Pagination, in this context, is the electronic production of a news-
paper. 6 Bakersfield is in Kern County.
ing and recommending the purchase of certain systems
equipment to facilitate the Employer’s implementation
of a new pagination process.5 She interviewed can-
didates being considered as pagination consultants and
recommended Bill Solimeno, who was eventually se-
lected.
Coats was one of the primary authors of the pro-
posal from the pagination committee to the CEO and
board of directors. Her ideas on equipment and sys-
tems were basically adopted by the committee. The
CEO then made a presentation to the board based on
the committee report.
As part of her duties on the Employer’s pagination
committee, Coats has attended conferences, including
one at which she was the Employer’s only representa-
tive.
The Employer contends that Coats formulates, deter-
mines, and implements management policies by mak-
ing operative decisions with respect to the prepress
systems and the pagination systems, and that she has
discretion in the performance of her duties independent
of the Employer’s established policies. We do not
agree. Although Coats possesses computer and tech-
nical skills, these do not make her a manager. Coats’
actions are narrowly circumscribed by company poli-
cies with rare exceptions. Her authority on the pagina-
tion committee was to recommend to an Employer-
sponsored group what equipment she thought should
be purchased. The group, guided by her input, pre-
pared a report for the CEO who subsequently made a
presentation to the board of directors. The decision to
institute the pagination system was not made by Coats;
she merely did the research.
Although Coats’ responsibility for the Employer’s
existing computer system requires technical skill and
expertise, this skill, like Stone-Ingalls’, does not in-
volve formulating policy or acting independently of the
Employer’s established policy. Moreover, her authority
to exceed the $250 limit is restricted to emergencies
and then only to keep the system running.
The Employer analogizes Coats to the research con-
sultants in Washington Post, 254 NLRB 168, 199
(1981), who were found to be managerial. In that case,
the research consultants identified, defined, formulated,
and evaluated long-term projects for the employer. The
two researchers were part of a department whose only
function was to research, investigate, and evaluate
‘‘advance systems.’’ The Board in Washington Post,
supra, found that the consultants developed and im-
proved policies and procedures which impinged on the
employer’s business. Here, Coats’ main job is to keep
the Company’s computers running. She is not respon-
sible for identifying or defining which long-term
projects the Employer should undertake. Instead, she is
merely a member of the pagination committee, whose
authority is limited to recommending computer equip-
ment.
The Employer also compares Coats to the senior
computer systems analysts, software specialists, and in-
dustrial engineers who were found to be managerial in
Postal Service, 210 NLRB 477 (1974). In that case the
parties stipulated that the senior computer systems ana-
lysts and software specialists regularly assisted man-
agement in resolving managerial and technical prob-
lems, provided guidance to a small staff, and had more
of a community of interest with the persons who for-
mulated, determined, and oversaw employer policies
than with those in the bargaining unit. The parties also
agreed that the industrial engineers (who were being
phased out and replaced with senior computer systems
analysts) worked in the area of planning for future im-
provements and made recommendations for future
equipment and personnel. In contrast, Coats does not
regularly resolve managerial problems nor does she
formulate, determine, or oversee employer policy or
act independently of established policy to any mean-
ingful degree. Rather, she is a highly skilled computer
specialist who gives technical advice and services with
respect to the Employer’s computer system.
Accordingly, we find that Coats is not a manager
and thus should remain in the unit.
C. Capital Correspondent
The capital correspondent position was formerly
held by Mike Otten, who resigned. The capital cor-
respondent position is in the metro department which
is part of the news and editorial division headed by
Executive Editor Robert Bentley. Otten reported di-
rectly to Assistant Metro Editor Tim Heinrichs who re-
ports to Metro Editor Mike Trihey. Trihey is one of
several editors under Managing Editor Rick Martinez,
who reports to the Executive Editor. The Employer
claims that the capital correspondent position is mana-
gerial and should be excluded from the unit. The
Union contends that it is a bargaining unit position.
As capital correspondent, Otten was assigned to Sac-
ramento. He was responsible for covering Kern Coun-
ty6 legislators serving in Sacramento and reporting on
stories of interest to Kern County readers. Otten main-
tained an office on behalf of the paper in Sacramento.
He paid the rent on the office, arranged for an inter-
com system to hear discussions at the capital, installed
a special telephone line, and purchased a fax machine.
Otten submitted monthly expense accounts sheets
which were reviewed by metro editor, Trihey. Al-
though he could commit the Employer to expenses
such as rent and telephone, those expenses had been
preliminary authorized by the Employer. With respect
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Although the position of capital correspondent was vacant at the
time of the hearing, the position was, until recently, occupied by em-
ployee Otten. Moreover, the capital correspondent is the Employer’s
sole representative in Sacramento, and the Employer testified at the
hearing that it intends to fill the position. In these circumstances, we
find it appropriate to include this classification in the bargaining
unit. See ITT Grinnell Corp., 212 NLRB 734 (1974).
8 The district managers have been represented by the Union since
1964.
9 For a time, the district managers were told they must get prior
authorization to hire youth carriers but that restriction has since been
removed. The majority of carriers are adults.
10 The parties have agreed that the carriers are independent con-
tractors.
11 On rare occasions, a district manager has required a carrier to
meet an earlier delivery deadline to accommodate a particular sub-
scriber. The district managers cannot make the delivery times later.
12 The only exception is tenured carriers who, as a matter of com-
pany policy, can be ‘‘grandfathered’’ in under an old wholesale
price.
13 There was conflicting testimony about whether the district man-
agers could impose tougher standards on the carriers. The district
managers are not allowed to ease the standards.
to his purchase of a fax machine, metro editor, Trihey,
testified that this could have been grounds for discipli-
nary action because the expenditure exceeded Otten’s
spending limit.
Otten worked flexible hours. Although he often
made his own decisions on what stories he would
cover, that was true of many of the Employer’s other
reporters. Otten maintained regular contact with his
editor in Bakersfield and was required to supply as
much copy as any other reporter. Also, his stories were
subject to the same editorial review as those of any
other reporter. He shared common supervision and
similar fringe benefits with other reporters. Although
Otten had the authority to engage a freelance photog-
rapher if he decided the story warranted such treat-
ment, rates for such photographs were standard—$25
to $50.
We find that the capital correspondent position is
not managerial. Otten did not formulate, determine, or
effectuate management policy nor did he have discre-
tion independent of the Employer’s established poli-
cies. Otten was just one of the Employer’s reporters,
albeit, located farther from the Employer’s home of-
fice. Otten also was a reporter in whom the Employer
vested more autonomy, but that did not make him a
manager. He was in regular contact with his editor and
subject to the same editorial policies as the other re-
porters. Moreover, Otten’s discretion in monetary mat-
ters was limited, as evidenced by the fact that he was
on a budget and that the Employer conceded that Otten
could be disciplined if he exceeded his authorized
amount. Accordingly, we find that the position of cap-
ital correspondent should remain in the unit.7
D. District Managers
The Employer contends that its 17 district managers
are managerial and therefore should be excluded from
the unit; the Union contends that the district managers
are not managers and thus should remain in the unit.8
Eric Wynn, the circulation manager, oversees the
circulation department which is responsible for, among
other things, the home delivery of newspapers. Wynn
reports to the director of circulation/operations, a posi-
tion formerly held by Fred Fedesco but which became
vacant during the hearing. Wynn supervises, among
others, two zone supervisors. Each zone supervisor
oversees a specific geographic area which is divided
into some eight or more districts. Each district has a
district manager. There are also five assistant district
managers who fill in for district managers when they
are absent.
The district managers are in charge of service, sales,
and collections. They are hourly paid employees and
punch a timeclock. They generally work from 3 a.m.
to 12 p.m. They normally have a break scheduled be-
tween 8 and 9 a.m., although they have some leeway
on whether, and when, to take a break. They are eligi-
ble for bonuses if they increase newspaper circulation
or reduce customer complaints.
District managers deliver the Employer’s news-
papers to its carriers. Each district manager has be-
tween 9 and 25 carriers. The district managers usually
drop the carrier’s papers at a predetermined drop spot.
District managers recruit and train the carriers.9
After an interview with the district manager, the carrier
signs a standard form ‘‘Independent Contractor Dis-
tribution Agreement.’’10 The district managers are re-
quired to use this form and cannot alter it or negotiate
its terms. Blanks on the form must be filled out as
specified by the Employer. For example, the district
managers write in the appropriate blank that the papers
must be delivered by 6:30 a.m., weekdays or 7:30
a.m., weekends, which is the Employer’s policy.11 The
district managers also insert the wholesale price, set by
the Employer, which the carrier must pay for the pa-
pers. The suggested retail price of the papers is also
set by the Employer. Carrier compensation is based on
the difference between the wholesale price and the
price the paper is sold to customers. The district man-
agers have no authority to adjust either of these
prices.12 The contract also provides that a carrier’s
contract can be terminated if the carrier’s number of
subscribers falls more than a certain percentage. The
district managers have been instructed to insert 5 per-
cent. Similarly, the contract provides that customer
complaints are to be no greater than a set standard.
That standard, established by the circulation manager,
is 1-1/2 complaints per thousand papers,13 which fig-
ure the district manager also inserts in the form.
The carrier contracts must be signed by two em-
ployer representatives; one usually is the district man-
ager, and the other often is the district manager’s zone
1217BAKERSFIELD CALIFORNIAN
14 In an effort to save one of his carriers some money, a district
manager once waived payment of a bond fee for an intrafamily
transfer of the carrier’s route.
supervisor. As a matter of regular practice, most dis-
trict managers submit their contracts to their zone su-
pervisors for signature. No zone supervisor has ever
turned down a carrier contract submitted by one of
their district managers.
In addition to overseeing the carriers, the district
managers deal with customer complaints. When a cus-
tomer complains to the circulation department, a dis-
trict manager may try to resolve the problem. If the
complaint is about missing or wet papers, the district
manager delivers the replacement paper personally. If
there are repeated complaints, a district manager may
speak with the carrier, the customer, or both. When a
district manager believes that a complaint is not the
carrier’s fault, he must ask the zone supervisor to rem-
edy the situation.
On occasion, the Employer requires that a carrier be
bonded. The district manager, however, has no author-
ity to determine if a carrier should be bonded or the
amount.14
Carriers are generally responsible for securing their
own substitutes. When one cannot be found, or when
there is a temporary vacancy on a route, the district
manager can either deliver the route or employ a sub-
stitute. Usually the district manager will the deliver the
route himself or ask other district managers to help,
but occasionally a substitute may be necessary. The
usual rate paid to substitutes is 10 cents per paper. On
late press days, however, district managers may con-
sult the zone supervisor about whether a substitute
should be used. District managers also can employ
substitutes solely to make collections on a route. On
these occasions, the district manager negotiates with
the substitute as to how much money the substitute
will receive for collecting the route. If a substitute is
used, the district manager decides whether to charge
the carrier for the cost of the substitute.
District managers have the discretion to extend cred-
it to carriers. The district managers do not have a limit
on the amount of credit they can extend. The zone su-
pervisors, however, question the district managers reg-
ularly about delinquent accounts and press them until
payment is made. Although a zone supervisor will usu-
ally accept a district manager’s explanation of why a
carrier payment has not been made, there have been
occasions when a zone supervisor has stepped in. For
example, one zone supervisor told one of his district
managers that papers would not be provided for a car-
rier unless the carrier’s delinquent bill was paid imme-
diately.
Most of the Employer’s promotions and incentives
are developed by the zone supervisors or the sales and
marketing division. However, one district manager pro-
posed a promotion called the circulation olympics
which the Employer later used. District managers have
authority to award carriers merchandise/food coupons
worth between $1.40 and $9.50 for good performance.
The coupons are made available to the district man-
agers by the Employer.
District managers have the authority to both consoli-
date and split routes. The actual district boundaries are
set by the Employer. District managers, however, may
change routes within their districts. For a time, the
Employer limited each route to 300 households. That
policy has since been suspended, but generally each
route involves between 200 and 300 papers. District
managers also allow some carriers to have more than
one route.
The district managers have the authority to terminate
a carrier who does not meet the contract standard. For
instance, if a carrier’s complaints exceed the standard
under the contract, the carrier’s contract can be termi-
nated. Some district managers, however, have decided
not to terminate carriers for this reason.
The Employer contends that the district managers
are managerial because they formulate and effectuate
management policies and exercise independent discre-
tion in the performance of their jobs. According to the
Employer, the district managers manifest their manage-
rial status by contracting with, terminating, training,
and disciplining carriers, and by extending credit to
carriers and splitting or consolidating carrier routes.
Case law does not support the Employer’s conten-
tions. In Reading Eagle Co., 306 NLRB 871 (1992),
the Board found that district managers, similar to those
in this case, were not managerial. Like the district
managers here, the district managers in Reading Eagle,
supra, recruited, interviewed, employed, trained, and
terminated carriers. As here, the carriers were signed
without negotiations to a standard form agreement and
the district manager signed the agreement as the em-
ployer’s representative. The district managers also had
discretion in recruiting carriers and the carriers could
be employed and terminated without upper manage-
ment approval. In addition, the carriers purchased their
newspapers from the employer at a wholesale price
and their compensation was based on the difference
between the wholesale price and the price at which the
paper was sold to customers. No district manager
could change or adjust those prices. They could, like
the district managers here, extend credit to carriers; in
Reading Eagle, supra, the amount of credit was usually
the bond limit. However, unlike Reading Eagle, supra,
the district managers here can split or consolidate
routes without higher approval.
The Board, in finding district managers not to be
managerial employees in Reading Eagle, supra, relied
on the fact that the district managers were not allowed
to negotiate the terms of the carrier’s contracts, had no
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The Employer also contends that the 17 district managers pos-
sess statutory supervisory authority as they assign work to and re-
sponsibly direct the 5 assistant district managers. The record evi-
dence, however, does not support the Employer’s contention. In-
stead, the evidence shows that the contact between district managers
and assistants is primarily limited to instructing assistant managers
on how to operate their particular district when they are on vacation
or out sick. Since the district managers are merely advising the as-
sistants as to the established practices and procedures followed in
their district, we find that district managers do not exercise any inde-
pendent judgment or discretion, and therefore they are not statutory
supervisors.
16 Sec. 2(11) defines a supervisor as:
[A]ny individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or respon-
sibly 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 cleri-
cal nature, but requires the use of independent judgment.
17 Except for the indicia specifically discussed with respect to each
position, the Employer’s contentions are only conclusory assertions
without supporting facts or discussion. Thus, the Employer has failed
to show that this alleged authority involves the discretion and inde-
pendent judgment required by Sec. 2(11). Nor does the Employer
give any examples with respect to recommendations made by these
individuals, and therefore it has not demonstrated that their rec-
ommendations are effective. Accordingly, these assertions do not es-
tablish that these individuals possess any Sec. 2(11) authority.
discretion or authority over the carrier’s compensation,
could not independently split or consolidate carrier
routes, and had only limited authority to extend credit.
Thus, the Board concluded that the district managers
performed their duties within a narrow framework of
company policy from which they had little authority to
deviate. The district managers had no authority to sub-
stantially affect the economic terms of employment of
the carriers.
The Board’s analysis in Reading Eagle, supra, is
equally applicable here. Although the district managers
here can extend credit, that authority is not unlimited.
The zone supervisors monitor delinquent accounts and
have threatened to stop a carrier’s papers if an account
is not settled. The district managers cannot negotiate
the terms of the carrier contracts nor their compensa-
tion. As a result, they have little ability to influence
carrier compensation or to commit the Employer’s fi-
nancial resources.
Although the district managers are authorized to
split and consolidate routes within their districts, the
district boundaries are set by the Employer and the dis-
trict managers can not change those boundaries. More-
over, although while redrawing carrier routes may
make the operation more efficient, it would not appear
to substantially affect the Employer economically.
Thus, no matter how many routes a district is divided
into, total carrier compensation remains the same and
all papers must be delivered in the same time frame
and at the same price. Moreover, additional customers
are continually being sought irrespective of the number
and size of routes. In Eugene Register Guard, 237
NLRB 205 (1978), where county district supervisors
were found managerial in part because they could de-
termine the number, boundaries, and length of motor
routes, those determinations had a direct effect on the
employer’s expenses. In Eugene Register, supra, motor
route carriers were paid on a commission basis which
was determined by negotiation between the district su-
pervisors and the carriers. The size of the commission
was based on such factors as length of the route, num-
ber of subscribers, and road conditions. Here, district
managers do not negotiate the carriers’ compensation;
it is set by the Employer. Therefore, there is no direct
connection here between the district manager’s route
determinations and the carrier’s rate of compensation
and thus the Employer’s expenses.
Although district managers may employ substitutes,
this hiring involves little discretion or independent
judgment. Normally, carriers secure their own sub-
stitutes and on late press days, the district managers
check with their zone supervisors to see if a substitute
is needed. Only occasionally does a district manager
employ a substitute, and even then the manager does
not determine the rate of compensation.
Based on the above, we find that the district man-
agers in this case have little discretion to deviate from
the Employer’s established policies. They possess and
exercise limited authority which is circumscribed by
the use of standard forms, adherence to Employer poli-
cies, and supervision by zone supervisors. See Wash-
ington Post, supra, 254 NLRB 168.
Accordingly, we find that the district managers are
not managers and should remain in the unit.15
IV. ALLEGED SUPERVISORS
The Employer claims that the following classifica-
tions should be excluded from the unit as they are su-
pervisory under Section 2(11) of the Act.16 The Union
contends that these individuals are not statutory super-
visors and thus should be included in the bargaining
unit. In general, the Employer asserts that all of the in-
dividuals in the classifications set forth below are stat-
utory supervisors as they possess a number of statutory
indicia, i.e., the authority to hire, to suspend, to effec-
tively recommend promotions, etc.17
A. Assistant Accent/Features Editor
The assistant accent/features editor, Gary Funk, is in
the news and editorial division. He is under the
accent/features editor and conceded supervisor, Mimi
McAndrew, who reports to Managing Editor Rick
Martinez.
Prior to the employment of McAndrew, Funk was
the acting accent/features editor from April to August
1992. Since October 1992, he has been the assistant
accent/features editor. He works Monday through Fri-
1219BAKERSFIELD CALIFORNIAN
day, 9 a.m. to 6 p.m.; McAndrew works Monday
through Friday, 10 a.m. to 7 p.m. Funk assists
McAndrew in the planning and production of the
accent/features section of the paper. That section in-
cludes, among other things, personality profiles and re-
views of restaurants, movies, and cultural events. Funk
is also in charge of the teen scene section of the paper.
Generally, Funk is more involved in composing and
layout whereas McAndrew primarily assigns work to
the reporters and oversees their written work product.
Funk shares his composing duties with unit employee,
Joe Wirt, the copy editor/layout person. Although Funk
is authorized to fill in for McAndrew when she is ab-
sent, McAndrew has missed virtually no work. As a
result, Funk has done little substituting for McAndrew.
He has attended management meetings only when
McAndrew was unavailable.
As assistant accent/features editor, Funk has never
hired or effectively recommended the hire or discipline
of any employee. Any hiring recommendations he
makes must go through McAndrew and Managing Edi-
tor Rick Martinez. McAndrew testified that as to
Funk’s authority for hiring and discipline, she would
always have ‘‘the last word.’’
Funk has had only limited involvement in discipline.
When Funk became aware that a reporter, Chon, whom
he knew, was close to being disciplined for not making
deadlines, Funk volunteered to speak with the em-
ployee. Subsequently, Funk participated in a meeting
with Martinez, Employee Relations Manager Maria
Payne, and McAndrew to discuss how Chon should be
disciplined. Funk agreed with McAndrew’s rec-
ommendation that Chon be suspended.
At the time of the hearing, McAndrew had been the
accent/features editor for only a few months. Funk had
been with the paper for a number of years and was the
acting accent/features editor before McAndrew was
hired. As a result, Funk was more familiar with certain
reporters’ work than McAndrew so McAndrew sought
his input on employee evaluations. Funk drafted eval-
uations on the employees with whom McAndrew was
unfamiliar. Now that McAndrew has had more time on
the job, Funk has been advised that his input will con-
tinue to be sought on evaluations but that he will no
longer write the evaluations. On occasion, McAndrew
has also asked for Funk’s input on merit increases for
employees.
McAndrew usually assigns the stories to the report-
ers and oversees their work but there are occasions
when Funk has assigned work to employees. He also
has the authority to reject, delay, and ‘‘kill’’ stories, as
well as request changes in stories. In addition, he has
asked reporters to submit photographs with their sto-
ries. He has also occasionally approved requests from
the accent/features writers for graphics and photo-
graphs, and assisted in scheduling photographic assign-
ments.
Although Funk prepares the work schedule for the
department, the accent/features employees work regu-
larly scheduled hours and vacations are requested in
advance. Conflicts in scheduling are resolved by se-
niority. The accent/features section is not generally
concerned with the ‘‘late breaking’’ news and much of
their copy can be prepared ahead resulting in very little
overtime. Overtime is approved ahead of time by
McAndrew except in emergencies. McAndrew could
only recall one occasion when Funk approved overtime
without asking her. McAndrew generally approves
timecards but Funk has done it in her absence. If em-
ployees are sick or have an emergency, Funk can au-
thorize them to leave work early.
This evidence does not establish that Funk is a statu-
tory supervisor. The record demonstrates that
McAndrew heads the department. Although Funk is
authorized to fill in when McAndrew is absent, he
does not substitute on a regular and substantial basis
as McAndrew is rarely out of the office. See
Hexacomb, supra, 313 NLRB 983. Moreover, Funk’s
scheduling of work is routine. The accent/features em-
ployees work a regular weekly schedule, their vaca-
tions are requested in advance via computer, and con-
flicts are resolved by seniority. Funk’s approval of
overtime is rare and his authority to let employees
leave work is limited to sickness and emergencies and
thus does not require the exercise of discretion.
Funk’s involvement in employee evaluations and
discipline is also limited. There is no showing that
Funk’s input on employee evaluations determines the
employees’ wages or terms and conditions of employ-
ment. As for discipline, although Funk was involved in
the suspension of Chon, there were at least two layers
of management above Funk who determined how em-
ployee Chon should be disciplined. Indeed, Funk mere-
ly agreed with McAndrew’s recommendation that
Chon be suspended.
With respect to assignment and direction of work,
McAndrew usually handles the writing assignments
given to reporters; Funk is more concerned with lay-
out. Additionally, McAndrew is rarely absent from
work. As a result, Funk is only occasionally required
to assign work to and direct the accent/features report-
ers. In any event, although Funk can reject, delay, re-
write, or kill stories and request photographs to accom-
pany articles, the Board has held that such duties are
more akin to that of a working leadman, rather than
a statutory supervisor, as they require the exercise of
‘‘news judgment’’ rather than supervisory authority.
Scranton Tribune, 294 NLRB 692, 692–693 (1989);
Washington Post, supra, 254 NLRB at 205.
The Employer analogizes Funk to the deputy style
editors in Washington Post, supra at 207, who assigned
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stories to the reporters. The deputy style editors, how-
ever, each had a group of reporters who reported di-
rectly to them. Also the deputy editors regularly par-
ticipated in editorial conferences where decisions on
the assignment and direction of the writers were made.
Here, Funk has no cadre of reporters assigned to him,
and he does not regularly attend management meet-
ings.
For these reasons we find that Funk is not a super-
visor and should be included in the unit.
B. Assistant Photo Director
Alan Ferguson is the assistant photo director. He re-
ports to photo director, and conceded supervisor,
Casey Christie, who reports to Managing Editor Rick
Martinez in the news and editorial division.
As department head, Christie is responsible for all
the photographs in the newspaper. He supervises the
work of Ferguson as well as the six to eight photog-
raphers assigned to the photo department. Christie also
engages freelancers, edits wire service photos, selects
employee photos, performs employee evaluations, rec-
ommends discipline, and grants merit increases.
Ferguson assists Christie in running the department.
In assigning duties to Ferguson, Christie told Ferguson
that he wanted him to handle the finances, take care
of electronics (the leaf desk), keep the department
under budget, and work on next year’s budget; Christie
would handle the photographer assignments and per-
sonnel matters.
Ferguson shares his office with the leaf desk which
reproduces Associated Press wire photos. He trains
photographers on the leaf desk. He is a member of the
pagination committee, he recommends equipment to be
purchased by the photo department, and attends man-
agement meetings in Christie’s absence. He prepares
and maintains the budget for the department and can
contract with freelance photographers. He spends ap-
proximately 10 percent of his time taking photographs.
Although Christie does the majority of the photo as-
signments, Ferguson has, at times, assigned work to
photographers. Much of the work is assigned based on
who is available. Other times the assignments are
made because the photographer has shown an interest
in the subject, has familiarity with the area, or has ex-
pertise. Christie can and has overruled Ferguson’s as-
signment of photographers. In addition, Ferguson can
determine whether photographs should be color or
black and white. He can also reject photographs sub-
mitted by the photographers and has the authority to
direct photographers to reshoot assignments if he finds
their work unacceptable.
Ferguson fills in for Christie when he is unavailable
or on vacation as well as every Monday and alternate
Sundays. According to Managing Editor Rick Mar-
tinez, when Ferguson fills in, he has the same authority
as Christie. Christie testified, however, that Ferguson
could not fire, hire, or make capital commitments in
Christie’s absence. As for other matters, the record
shows that Jack Knight, a unit employee, does most of
the scheduling in the department. Normally changes to
the schedule are made through Christie but when
Christie is unavailable, Ferguson can change the sched-
ule, for example, by adjusting a photographer’s daily
assignment. And, although Christie usually acts on va-
cation requests, on one occasion, Ferguson approved a
request in Christie’s absence. On a few occasions, Fer-
guson has authorized employees to leave early. Fer-
guson is also permitted to approve overtime up to the
limit set in the photo department budget. Christie has
exceeded the budgetary limit but Ferguson has not.
Regarding his authority to recommend that employ-
ees be hired, Ferguson was one of several persons
asked by Christie to look through the portfolio of pro-
spective employee Ocampo (who had worked at the
paper before) and Ferguson agreed with the other em-
ployees’ and Christie’s favorable opinion on the port-
folio. Ocampo was subsequently hired. On at least one
occasion, Ferguson hired a lab technician to fill in for
1 day for a regular employee who had a scheduled ab-
sence. The technician had been used before and was
hired at the previous rate.
As to disciplining employees, Ferguson testified that
he was told by Executive Editor Bentley during the
course of the hearing that he had general authority to
discipline employees in the photo department. The
record shows that on one occasion, Ferguson inves-
tigated a situation where an employee complained that
another employee was circulating rumors that the em-
ployee was stealing. After checking the alleged thief’s
office, Ferguson told the employee circulating the
rumor to stop the accusations. The facts surrounding
the incident were reported to Christie and Ferguson re-
quested that Christie talk to both employees because
Christie was the head of the department. According to
Ferguson, he has spoken with various photographers
about tardiness but has never issued them any written
warnings.
After Christie has narrowed the field of likely can-
didates for merit increases and Golden Quill awards, a
monthly employer award, he may solicit Ferguson’s
opinion. Christie testified that on a scale of 1 to 10,
he would rate Ferguson’s recommendations on em-
ployee pay increases at an 8 or 9.
We find that Ferguson is not a supervisor. Although
Ferguson regularly substitutes for Christie; substitution
alone is insufficient to confer supervisory status. The
person substituting must also possess statutory super-
visory authority while substituting. Hexacomb, supra.
Here, the record does not establish that Ferguson pos-
sesses the requisite supervisory authority. Thus, Man-
aging Editor Martinez’ testimony that Ferguson has the
1221BAKERSFIELD CALIFORNIAN
same authority as Christie is contradicted by Christie
who testified that Ferguson could not fire, hire, or
make capital commitments in his absence. Moreover,
the activities Ferguson engages in while substituting
fail to establish that he possesses supervisory authority.
Thus, scheduling for the department is handled by unit
employee Knight and Ferguson rarely makes changes
to Knight’s schedule. Ferguson’s approval of vacation
requests and allowing employees to leave early have
occurred on only a few occasions, and therefore are in-
sufficient to establish supervisory authority. In addi-
tion, Ferguson can only approve overtime within a
strict budget, and thus does not exercise any independ-
ent judgment in this regard.
As for Bentley’s statement to Ferguson during the
hearing that he has the authority to discipline, it is ob-
vious that Ferguson had not previously been aware of
such authority. In fact, in the only incident discussed
in the record—the theft rumor—Ferguson did not ad-
minister any discipline and reported the incident to
Christie. In addition, although Ferguson has spoken to
employees about tardiness he has never written one up
for any infraction. Such oral reprimands do not con-
stitute discipline that would render Ferguson a super-
visor.
As to the hiring of Ocampo, Ferguson was one of
several persons asked to review Ocampo’s portfolio
and, according to Christie, Ferguson merely ‘‘agreed’’
with the other favorable opinions of Ocampo’s work.
This does not rise to the level of making an effective
recommendation. In addition, although Ferguson’s
input may be solicited on employee pay increases,
Christie’s decision on such increases is not based en-
tirely on Ferguson’s input nor are Ferguson’s rec-
ommendations necessarily determinative of whether the
employees receive an increase.
Nor do we find that Ferguson’s assignment and di-
rection of photographers make him a supervisor. His
assignments to the photographers are generally based
on the availability and interest of the photographers
and thus are routine and not supervisory. Nor does the
fact that he can assign photographers, reject photo-
graphs, direct reshoots, or choose whether photographs
should be in color or black and white render him a su-
pervisor. See Washington Post, supra at 212–213 (the
photo assignment editor and night picture editor were
found not to be supervisors). Moreover, much of Fer-
guson’s time is spent monitoring the leaf desk, taking
photographs, and handling the finances for the photo
department.
The Employer contends that Ferguson is analogous
to the photographic technician in Newspaper Guild
Local 47 (Pulitzer Publishing), 272 NLRB 1195, 1201
(1984), who was found to be a statutory supervisor.
We disagree. The technician in that case was found su-
pervisory primarily because he ‘‘negotiated’’ overtime
versus compensatory time with the employees as well
as resolved employee grievances with respect to their
credit lines. Ferguson has none of these duties, which
were crucial to the finding of supervisory status in
Newspaper Guild Local 47, supra. Nor do we find per-
suasive the Employer’s claim that Ferguson is akin to
the picture editor in Washington Post, supra at 212. In
that case, the Board found that the picture editor’s rec-
ommendations regarding promotions and the reorga-
nization and restructuring of the photo department
were effective. The Board also noted that the picture
editor bore ‘‘major responsibility for direction’’ within
the photo section. Here, Ferguson does not make effec-
tive recommendations and has less authority and re-
sponsibility. We find that Ferguson is not a supervisor
and thus should remain in the unit.
C. Assistant Metro Editors
There are three assistant metro editors, Alex Edillor,
Tom Gordon, and Tim Heinrichs. They report to Metro
Editor Mike Trihey, a conceded supervisor, who re-
ports to Managing Editor Martinez. The metro depart-
ment provides local news coverage and news of inter-
est to Kern County readers.
Each assistant metro editor (AME) oversees a
‘‘pod’’ of five or six reporters. The pod system was
established by the Employer in September 1992. The
reporters in each pod cover a regular ‘‘beat.’’ The
AMEs assign and reassign stories to their reporters, al-
though ideas for stories are generated by both reporters
and AMEs. The AMEs also provide input to the re-
porters on stories from inception through the writing
process. They evaluate the reporter’s stories, edit, and
give advice to reporters. The AMEs also ensure that
the stories are fair, accurate, and balanced. Stories can
be returned by the AMEs for rewriting, or the AME
can ‘‘kill’’ the story.
The three AMEs recommended to editor Trihey that
he hire Hugo Martinez-McNaught and Mark Benjamin
as reporters and both applicants were subsequently
hired. Trihey testified that he put ‘‘great weight’’ on
the AME’s recommendation to hire Benjamin as the
night police reporter. The record also shows, however,
that the reporters recommended by the AMEs were ei-
ther former employees or were known personally by
editor Trihey. In particular, reporter Benjamin was well
known to both Martinez and Trihey as he had been
submitting copy to the paper for years, had a long-term
relationship with the paper, and in fact had been one
of its county correspondents. On a few other occasions,
the opinions of the AMEs and other employees were
solicited before reporters or interns were hired.
When Trihey is preparing the evaluations of the re-
porters, he seeks the opinion of the reporters’ AME
but the AMEs do not sign the evaluations nor do they
sit in when the employees are being evaluated. On one
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
occasion, Trihey was informed by Managing Editor
Martinez that a certain amount of money for merit in-
creases was available to divide among several reporters
who were eligible for a raise. Trihey spoke with the
AMEs regarding his preference and then sought their
input. After some minor changes, Trihey’s rec-
ommendation was given to Martinez.
The evidence that the AMEs have disciplined em-
ployees is limited to one incident when AME Gordon
‘‘counseled’’ the religion editor about too much social-
izing. This was not reduced to a written warning and
Trihey testified that he would not characterize it as a
verbal warning.
AME Heinrichs does the weekly scheduling for the
department. The reporters, however, work regular
hours and must request vacations in advance. Schedul-
ing conflicts are resolved by seniority. Weekend shifts
are rotated. AMEs have the authority to approve time-
cards and can authorize overtime. Trihey closely mon-
itors overtime but the AMEs’ authorization of overtime
is routinely approved. When there are late breaking
news stories, the AMEs have asked that the reporters
work extra shifts.
The AMEs, by rotation, substitute for Trihey when
he is absent. Heinrichs regularly fills in for Trihey
every Friday and Saturday. According to Trihey, the
AMEs possess the same authority as he does when
they are substituting for him although he cited no par-
ticular incidents where they exercised such alleged su-
pervisory authority. The AMEs also fill in for Night
Editor King, an admitted supervisor. AME Edillor fills
in for King on Sundays.
We do not find the AMEs to be supervisors. While
the AMEs assign work to the reporters, the Board has
recognized that ‘‘not all direction or involvement by
editors with reporters is supervisory in nature.’’ Wash-
ington Post, supra at 205. The reporters cover regular
beats and are as likely to suggest a story as are the
AMEs. The assignment and direction of work by
AMEs is routine and based more on their ‘‘news judg-
ment’’ rather than supervisory skills. Scranton Tribune,
294 NLRB 692 (1989); Kenosha News Publishing
Corp., 264 NLRB 270 fn. 3 (1980).
We find nothing in the record to show that the
AMEs discipline employees. Gordon’s oral counseling
of the religion editor was not only an isolated incident,
it was, as conceded by the Employer, not even a warn-
ing.
While it appears that at least two of the three AMEs
regularly substitute for the metro and night editors, the
record does not demonstrate that while substituting
they possess any supervisory authority. Although
Trihey testified that the AMEs possess the same au-
thority as he does when they substitute, this authority
is not defined nor has it been shown to require the use
of independent judgment. Mere substitution is insuffi-
cient to confer supervisory status. Hexacomb, supra.
We also do not find that the AMEs have hired or ef-
fectively recommended the hire of anyone. The report-
ers who were recommended by the AMEs were either
former employees or were known personally to editor
Trihey, especially, reporter Benjamin, whose suggested
hiring by the AMEs was given ‘‘great weight’’ by
Trihey. Thus, the Employer has failed to establish that
the AMEs’ recommendations were the basis for the re-
porters being hired. While their input may be sought
on evaluations and merit increases, their opinions are
more of an affirmation of the suggestions made by
Trihey than independent assessment.
As to scheduling and overtime, although Heinrichs
does the scheduling, the reporters work regular sched-
ules, request vacations in advance, and scheduling con-
flicts are resolved by seniority. As a result, Heinrichs’
scheduling requires little independent judgment. Addi-
tionally, as to overtime, it is routinely granted thus re-
quiring little independent judgment on the part of the
AMEs.
The Employer contends that the AMEs are analo-
gous to the assistant metro editors in News Journal
Co., 227 NLRB 568 (1976). Both the assistant metro
editor in News Journal and the AMEs here perform
similar duties. The assistant metro editors in News
Journal Co., supra, however, were found to be super-
visors by the Board based on their exercise of a num-
ber of supervisory attributes including the authority to
make effective recommendations with regard to hiring
and firing employees, to review and evaluate work per-
formance, and to authorize overtime and expense
vouchers. Here, the AMEs’ involvement in hiring, dis-
cipline, overtime, evaluations, and scheduling does not
rise to the level of statutory supervisory authority. We,
therefore, find that the AMEs are not supervisors and
should remain in the unit.
D. Assistant News Editors
The news department, under Managing Editor Mar-
tinez, is headed by Charles ‘‘Chick’’ Jacobs who was
appointed to this position from sports editor when the
former news editor, Mike McNamara, resigned during
the hearing. He oversees the ‘‘A’’ section of the paper.
He has responsibility for wire services, selection of
stories, captions, and layout. He directly supervises
three assistant news editors, John Furtak (also known
as the copy desk chief), Joel Torczon, and Tom
McAndrew.
1. John Furtak
Furtak has been the assistant news editor/copy desk
chief since 1992. He works with eight copy editors. As
chief copy editor he reviews all the stories for the next
day’s paper after they have been edited by the copy
editors and the headlines have been added. He checks
1223BAKERSFIELD CALIFORNIAN
the stories for accuracy, content, and correct captions.
He checks the dummies prepared by the wire and local
desk before they are sent to the composing room. Mar-
tinez testified that Furtak also spends approximately 10
percent of his time editing copy himself.
Most of the copy edited by the copy editors is re-
trieved by them from a central copy basket. The copy
is placed in the basket by the local and wire editors
and is read in numerical page order. The copy editors
are knowledgeable about what they are required to do
and thus require very little instruction. The copy is
usually edited in the order it is retrieved from the bas-
ket. According to Furtak, depending on the situation,
including a breaking news story, he may request that
the copy be read in a certain order. Some copy editors
are routinely assigned certain sections of the paper to
edit. For example, one copy editor edits the religion
section, another the ‘‘On the Go,’’ section, and another
the ‘‘Neighbors’’ section. Furtak often edits the real
estate section himself.
Furtak testified that his input was sought on the hir-
ing of assistant news editor, Tom McAndrew, and that
he along with McAndrew and Torczon recommended
that copy editors Bryan Nolan, Jim Varley, and Laura
Haywood be hired. The record shows, however, that
Furtak did not interview any of these prospective hires
and in fact all were already known to someone at the
paper. According to the record, McNamara told Furtak
that Varley, who had worked for the paper before as
assistant managing editor, was available. McNamara
handled the interview. Varley did not ‘‘try out’’ for the
position and, according to Martinez, hiring Varley was
easy, a ‘‘no brainer.’’ As for Nolan, McNamara and
Martinez knew Nolan’s work as Nolan had worked at
the paper before and McNamara told Furtak that Nolan
would be ideal for the paper. Furtak did not interview
Nolan nor was Nolan required to try out for the job.
Haywood was seeking a part-time job. Assistant news
editor, McAndrew, knew Haywood from working with
her before on a paper in Fresno. McNamara and Mar-
tinez were also familiar with Haywood. Martinez told
Jacobs to interview her. She was the only one to apply
for the job and performed an on-the-job try out. Furtak
and the other assistant news editors were asked if they
thought she was doing a good job. Furtak did not
interview or hire McAndrew for his job.
Furtak does not prepare formal evaluations of the
copy editors; that was done by McNamara. McNamara,
however, had asked Furtak for information on certain
employees’ performance. The Employer contends that
an employee was reviewed poorly based on informa-
tion that Furtak supplied to McNamara. The record,
however, reflects that McNamara was independently
aware that the employee was experiencing problems.
As for merit increases, copy editor Self went to
Managing Editor Martinez (because there was no news
director at the time) rather than Furtak for a merit in-
crease. On another occasion, Martinez approached
Furtak and asked him if he thought that employee
Denise Zapata should get a merit increase and sug-
gested a certain amount. Furtak agreed with Martinez’
recommendation and amount.
Furtak occasionally trains new copy editors but they
are usually paired up with another editor. He signs
timecards, can authorize overtime, and approve com-
pensatory time. There is, however, very little overtime
for copy editors. When overtime has been necessary,
Furtak has often asked for volunteers. According to
Furtak, he can send employees home early if they are
not feeling well but cannot send them home for dis-
ciplinary reasons. Usually, the copy editors ask McNa-
mara for the day off. If he is unavailable, they ask
Furtak who grants or denies the request and then ad-
vises McNamara.
According to Furtak, he can recommend to the news
editor that an employee be disciplined. Managing Edi-
tor Rick Martinez testified that, in the absence of the
news editor, Furtak has the authority to suspend, dis-
charge, or discipline. It is not clear from Furtak’s testi-
mony, however, whether he was aware that he had this
alleged authority. There is no evidence that Furtak has
ever exercised such authority.
During the course of the hearing, Furtak was prepar-
ing the news department’s work schedule because
news editor, Jacobs, had not yet assumed the news edi-
tor position. It was unclear whether Furtak would con-
tinue to do the scheduling. In any event, the copy edi-
tors work regularly scheduled hours and sign up in ad-
vance for vacations.
We find Furtak is not a supervisor. Although Furtak
assigns work to and directs the copy editors, we find
that this is routine and requires little independent judg-
ment. Thus, several copy editors are always assigned
the same sections of the paper to edit. For sections not
assigned, copy editors merely retrieve the work to be
proofed from a central basket. In addition, although
Furtak’s primary duty is to check the quality of the
copy editors’ work, he is the head copy editor, the per-
son with the most experience in editing, and the skills
he is using are more like those of a working leadman,
rather than a supervisor. Washington Post, supra at
205.
There is no evidence that Furtak evaluates employ-
ees or effectively makes effective recommendations
with respect to employee evaluations. In the one inci-
dent cited where Furtak’s input was allegedly solicited
and an employee evaluated poorly as a result, the
record shows that the news editor was independently
aware of the employee’s problems.
Furtak’s involvement in hiring was limited to em-
ployees who were either known to management, had
worked with someone at the paper previously, had
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
worked at the paper previously, or were interviewed by
someone other than Furtak. Thus, the record does not
establish that any employee was hired on the basis of
Furtak’s input or recommendation.
Although Furtak had been doing the scheduling in
the department while the news editor position was va-
cant, it is unclear whether he will continue to do so.
Moreover, the copy editors work regular schedules. In
addition, there is very little overtime and even then
Furtak often asks for volunteers. Furtak’s authority to
give employees the day off is limited to those times
when McNamara is unavailable. Moreover, the record
does not establish that granting time off, approving
compensatory time, or authorizing overtime requires
the use of independent judgment.
Although Martinez testified that Furtak possessed
the authority to suspend, discharge, or discipline em-
ployees when the news editor was absent, there is no
showing that Furtak regularly fills in for the news edi-
tor and thus Furtak’s substitution does not render him
a supervisor. Hexacomb, supra. Moreover, there is no
showing that Furtak is aware of this alleged authority.
The fact that Furtak can recommend discipline also
does not make him a supervisor as there is no showing
that his recommendations are effective.
The Employer contends that Furtak is analogous to
the deputy telegraph editor/telegraph editor in Bulletin
Co., 226 NLRB 345 (1976), and the deputy national
editor in Washington Post, supra at 200, who were
found to be supervisors. We do not agree. The deputy
telegraph editor/telegraph editor in Bulletin Co., supra,
determined what copy would be offered to the news
editor and assigned copy based on the complexity and
importance of the story and skills of the copy editors.
As a rule, the copy here is not independently assigned;
instead, it is regularly given to the same employee or
retrieved by the editors from a central basket. Addi-
tionally, the individuals in Bulletin Co., supra, respon-
sibly directed the telegraph desk and one of them had
the authority to effectively recommend changes in the
employment status of his subordinates. This is not true
of Furtak. The deputy national editor in Washington
Post, supra, had a coterie of reporters assigned to him.
He also was responsible for setting the work schedule.
Although Furtak has been scheduling in the absence of
a news editor, it has not been shown that he will con-
tinue to schedule once Jacobs has assumed the news
editor position. In any event, as discussed above, the
scheduling is routine. Based on all the above, we find
that Furtak is not a supervisor and should remain in
the unit.
2. Joel Torczon
Joel Torczon is the assistant news editor/night. He
helps in production of the A section of the paper. He
monitors the news wire to ensure the published news
will be current and correct. He, like Furtak, oversees
the work of the copy editors. He assigns page proofs,
assesses the quality of the work, and can request that
it be redone. He makes sure that the stories that have
come in on the wire are being processed. He filled in
occasionally for news editor, McNamara, on Fridays
and Saturdays when McNamara was not available. As
the last person to leave at night, Torczon makes the
final decisions on layout and whether a late-breaking
story should be included in the next day’s edition of
the paper.
Torczon’s assignment and direction of the copy edi-
tors, like Furtak’s, does not rise to the level of super-
visory authority. As noted earlier, there is little assign-
ment or direction. Generally, copy editors retrieve
copy from a central basket which they edit in the order
it is retrieved. Although Torczon may request that
copy be redone, this routine authority, like Furtak’s, is
based on greater skill and experience. Washington
Post, supra at 205.
Managing Editor Martinez testified that Torczon as-
signs overtime and can let employees leave early. Lit-
tle overtime for copy editors, however, is available and
Torczon’s authority to let employees leave early is lim-
ited to emergencies and when they are sick. This does
not constitute statutory supervisory authority.
Torczon, like Furtak, does not prepare employee
evaluations. Instead, McNamara consulted Torczon, as
he did Furtak, as to the copy editors’ performance
prior to writing their evaluations. There is no evidence,
however, that Torczon’s input had any impact on em-
ployee appraisals.
As to Torczon’s alleged input in hiring employees
Haywood, Nolan, and Varley, as previously discussed,
Torczon, like Furtak, worked alongside part-time em-
ployee Laura Haywood and his opinion was solicited
about her work. Haywood, however, was known to
former news editor McNamara and Managing Editor
Martinez; they told the current news editor, Jacobs,
about her. Additionally, assistant news editor,
McAndrew, had worked with Haywood in Fresno.
Both Nolan and Varley had worked at the paper before
and were known to both Martinez and McNamara.
The Employer claims that Torczon’s duties are simi-
lar to those of the news editor/night in Washington
Post case, supra, 254 NLRB at 219. In Washington
Post, supra, however, the news editor/night clearly was
involved in hiring new personnel, which is not true of
Torczon. Additionally, the news editor/night regularly
substituted 2 days a week for the AME in charge of
the news desk. This is also not true of Torczon; he like
the other assistant news editors has no regular substi-
tution schedule but only fills in when the news editor
is unavailable.
Accordingly, we find that Torczon is not a super-
visor and that he should remain in the unit.
1225BAKERSFIELD CALIFORNIAN
1 Pullman, Inc., 214 NLRB 762 (1974), the case relied on by the
majority is, distinguishable. The employees in issue there did not
merely have access to the future labor costs that would be acceptable
to the employer; working with that sensitive information was an ‘‘in-
tegral feature’’ of their job responsibilities.
3. Tom McAndrew
Tom McAndrew is the assistant news editor/wire.
He monitors incoming wire stories and makes the ini-
tial selection of wire stories for the paper. He makes
recommendations for page 1 stories and can determine
what stories need coverage by a local reporter in order
to add a local angle to the story. As stories come
through the wire, he will assign it to slot and put a
headline on it. He shepherds the stories along to make
sure that they are being prepared for the next edition
of the paper. He may on occasion assign work to copy
editors, though, as noted, the copy editors generally
read the copy in the order it is retrieved from the bas-
ket.
According to Managing Editor Martinez, McAndrew
and Furtak have the same authority. For example, Mar-
tinez testified that McAndrew can send employees
home early for disciplinary reasons. However, Mar-
tinez’ testimony is contradicted by the testimony of
Furtak who, as noted earlier, stated that he could not
send employees home for disciplinary reasons, but
only for illness. Accordingly, the record does not es-
tablish McAndrew’s authority in this regard. Martinez
also testified that McAndrew can approve overtime if
there are late-breaking stories. This testimony also
does not establish supervisory authority as
McAndrew’s approval is limited to obvious situations.
Further, the fact that McAndrew, like the other assist-
ant news editors, filled in on Fridays and Saturdays
when news editor, McNamara, was not available, also
does not make him a statutory supervisor. The record
does not establish that any assistant news editors, in-
cluding McAndrew, regularly substitute for the news
editor.
Martinez also testified that McAndrew had rec-
ommended (along with Torczon and Furtak) that Hay-
wood, Varley, and Nolan be hired. As already noted,
both McNamara and Martinez were familiar with Hay-
wood and Martinez told Jacobs to give her a try. As
to Varley and Nolan, both were known quantities as
they had previously worked at the paper.
As to evaluations, according to Martinez, McNamara
would seek the opinion of McAndrew (and Torczon
and Furtak) as to the quality of the copy editors’ work.
Again, however, there is no evidence that McAndrew’s
opinion determined the evaluation.
The Employer analogizes McAndrew to the tele-
graph and deputy telegraph editors in Bulletin Co., 226
NLRB 345 (1976). However, in Bulletin, as discussed
supra, the deputy telegraph editor assigned wire copy
based on his consideration of the complexity and im-
portance of the story and the skills of the copy editor.
McAndrew exercises no such independent judgment
here. The copy editors know what to do. The copy is
retrieved from a central basket for editing and the copy
editors require very little instruction. We find that
McAndrew is not a supervisor and should remain in
the unit.
ORDER
It is ordered that the existing bargaining unit is clari-
fied to include secretary to the retail advertising man-
ager, color coordinator, systems/pagination coordinator,
capital correspondent, assistant accent/features editor,
assistant photo director, assistant metro editors, assist-
ant news editors, and the 17 district managers in the
circulation department.
The unit is further clarified to exclude as a confiden-
tial employee the position of secretary to the classified
advertising manager.
MEMBER BROWNING, dissenting in part.
I disagree with the majority’s finding that Patricia
Bailey is a confidential employee, which conclusion
rests exclusively on the fact that she has ‘‘access’’ to
Manager Wedgeworth’s labor strategy notes. The evi-
dence indicates that Bailey has access to the notes only
to the extent that she has keys to the file cabinet which
contains those notes and which is located in
Wedgeworth’s personal office. There is no evidence
indicating that she typed those notes, has ever seen the
notes, or that she will ever do so in the regular course
of her duties. Accordingly, in my view, Bailey does
not have regular access to labor relations policy infor-
mation warranting her exclusion as a confidential em-
ployee.1
In all other respects, I agree with my colleagues’ de-
cision.