Reading Eagle Co.

National Labor Relations Board - Board Decisions

Mar 27, 1992

306 N.L.R.B. 871 (N.L.R.B. 1992)

871
306 NLRB No. 174
READING EAGLE CO.
1 The name of the Petitioner has been changed to reflect the new
official name of the International Union.
2 Communications Workers of America, AFL–CIO intervened in
the proceeding on the basis of a showing of interest in the broader
overall nonmechanical unit.
3 The Petitioner represents the truckdrivers in a separate unit;
Graphic Communications International Union represents the mail-
room employees.
Reading Eagle Company and Local Union No. 429,
International Brotherhood of Teamsters, AFL–
CIO,1 Petitioner. Case 4–RC–17536
March 27, 1992
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On April 12, 1991, the Regional Director for Region
4 issued a Decision and Order in the above-entitled
proceeding, in which the Petitioner sought to represent
a unit of approximately 42 district managers and cus-
tomer service representatives employed in the circula-
tion department of the Employer’s newspaper. The
Employer contended that the petitioned-for unit was
inappropriate, and that the appropriate unit should in-
clude all its nonmechanical employees employed in the
editorial, accounting, advertising, and circulation de-
partments—approximately 200. The Employer also
contended that the district managers should be ex-
cluded from any unit found appropriate as managerial
employees.2
The Regional Director concluded that the district
managers are managerial employees and, therefore,
must be excluded from the bargaining unit. He dis-
missed the petition without determining the appro-
priateness of the petitioned-for unit, however, as the
Petitioner had indicated that it did not wish to partici-
pate in any election that did not include the district
managers.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Petitioner filed a
timely request for review of the Regional Director’s
decision as to the managerial status of the district man-
agers. The Board, by Order dated August 1, 1991,
granted the Petitioner’s request for review.
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 entire
record in this case, and concludes, contrary to the Re-
gional Director, that the district managers are not man-
agerial.
The newspaper’s circulation area is divided into dis-
tricts that are determined by the number of newspapers
distributed in a given area or by the number of square
miles covered by the area. The circulation department
is headed by a director and includes approximately 6
district manager supervisors, 32 district managers, and
10–13 customer service representatives, as well as
mailroom employees and truckdrivers.3
Each district manager supervisor is responsible for
several district managers. The district manager super-
visors recommend the hiring and firing of district man-
agers to the circulation director, and evaluate the dis-
trict managers by rating them in five categories—sales
development, service management, collections manage-
ment, carrier development, and records management.
All district managers must have a high school edu-
cation, and their salaried compensation is based on
whether they have obtained a 2-year or 15-year level
of employment. The record shows that at the 2-year
level, district managers earn approximately $687 a
week; however, the record does not show the earnings
at the 15-year level. The district managers work from
5–10 a.m. and from 12:30–6 p.m., receive overtime
pay only in ‘‘very extreme and unique circumstances,’’
and receive the same benefits as all other employees
who are not represented by labor organizations. In ad-
dition, all district managers receive a mileage allow-
ance; however, ‘‘county’’ district managers are pro-
vided with a car in lieu of the mileage allowance, if
they so choose. There are no sales quotas or goals im-
posed on the district managers.
District managers recruit, interview, hire, train, and
terminate the newspaper carriers. These carriers, who
must be at least 12 years old, are not on the Employ-
er’s payroll, but are signed without any negotiation to
a standard form agreement which provides for collec-
tion, sales/promotion, service, and various miscella-
neous items. The district manager signs the agreement
as the Employer’s representative; if the carrier is under
18 years of age, the carrier’s parents must sign as well.
The district managers recruit in a variety of ways,
including placing standard form ads in the Employer’s
newspaper. There are no company guidelines for hiring
carriers, although in their on-the-job training the dis-
trict managers are given examples of how to recruit.
Although carriers are signed and terminated without
prior approval, some district managers discuss termi-
nation with their supervisors. When a carrier is termi-
nated or quits, the district manager prepares an evalua-
tion that rates the carrier on service, personality, char-
acter, and reliability. In addition, the evaluation indi-
cates whether the carrier’s account is paid in full.
These evaluations are kept in the Employer’s files so
that other district managers may review them.
The carriers purchase newspapers from the Em-
ployer at wholesale prices, and their compensation is
based on the difference between the wholesale price
and the price at which the paper is sold to their cus-
tomers. The district managers have no authority to ei-
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ther change or adjust these prices, which are set by the
publisher. All carriers are required to put money into
a cash surety account (bond) that is held by the Com-
pany. This bond usually is equivalent to 2 weeks’
charges for walking routes or 4 weeks’ charges for
motor routes. The Employer prepares weekly invoices
listing the carriers’ credits and charges. It is the re-
sponsibility of the district manager to get these in-
voices to the carriers and to collect from the carrier
any money owed to the Company. In the event there
are problems regarding collections, the district man-
agers have the authority to extend unlimited credit to
the carriers; however, the circulation director testified
that the bond amount is the basic guideline and that
the district managers do not let the extended credit go
much beyond that limit. This bond also is used to re-
coup money owed the Employer if a carrier ‘‘goes off
route’’ without paying the bill.
Motor route carriers receive a motor route allowance
for the use of their vehicles which is determined by the
publisher and circulation director. District managers
may recommend changes in these allowances or that a
route be split, expanded, contracted, or merged; how-
ever, the district manager supervisor has the authority
to grant or deny the proposed change. Any disagree-
ments are settled by the circulation director. District
managers must have supervisory approval to change a
customer’s method of payment from a carrier-pay ar-
rangement to an office-pay arrangement.
Lastly, the carriers are responsible for obtaining
their own substitutes and, if one cannot be found, the
district manager is responsible for delivering that route.
If that is done, the district manager receives only the
moneys from the sale of the papers, not an adjustment
in pay. However, if a carrier misses a customer, and
a paper has to be delivered by the Employer, the car-
rier is charged for the delivery.
Managerial employees are those who formulate and
effectuate management policies by expressing and
making operative the decisions of their employer and
those who have discretion in performing their jobs.
NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974); Eu-
gene Register Guard, 237 NLRB 205, 206 (1978). Ap-
plying this standard, the Regional Director found that
the district managers are managerial employees. He
noted, in particular, that they are responsible for exe-
cuting and administering the Employer’s contracts with
its newspaper carriers, and for seeing that the carriers
perform their obligations, including the collection of
moneys. Further, he found it significant that the district
managers may extend the time for payment by the car-
riers, evaluate the carriers, and recommend changes in
mileage allowances and routes.
We disagree and, contrary to the Regional Director,
we find the Employer’s district managers to be distin-
guishable from the county district supervisors found to
be managerial in Eugene Register Guard. In that case,
the two county district supervisors had independent au-
thority not only to decide when to hire carriers, but
also to negotiate their contracts including compensa-
tion. The district supervisors also independently deter-
mined if and when motor routes should be added or
subtracted, the lengths and boundaries of those routes,
and, within certain employer guidelines, the size of
commissions received by the motor route carriers. The
commissions varied according to the length of the
route, the number of subscribers, and road conditions.
Here, unlike the county district supervisors in Eu-
gene Register Guard, the Employer’s district managers
do not negotiate the terms of carrier contracts, and do
not independently determine if and when routes should
be split or consolidated. Although they may make rec-
ommendations as to splits, mergers, expansions, and
contraction of routes, the recommendations are not
necessarily accepted, as the district manager super-
visors have the authority to deny any proposed change,
with the circulation director having the final decision.
District managers also have no authority over carrier
compensation. That is determined by computing the
difference between the rates at which carriers purchase
and resell the Employer’s papers, rates which are set
by the Employer; the district manager has no discre-
tion to deviate from those rates. In addition, although
the district managers may extend credit to the carriers,
the extension generally is within the limits of the car-
rier’s cash surety account or bond, an amount that is
specifically determined by the Employer.
Thus, as shown above, the duties and responsibilities
of the Employer’s district managers are performed
within a narrow framework of established company
policy from which they have little or no authority to
deviate. Further, and significantly, they have no au-
thority substantially to affect the economic terms of
employment of the carriers. We find, therefore, that the
Employer’s district managers are not managerial em-
ployees as they do not formulate or develop the Em-
ployer’s policies or effectuate them with sufficient
independent judgment or discretion in performing their
duties. See Long Beach Press-Telegram, 305 NLRB
412 (1991).
As the district managers are not managerial employ-
ees, they may be included in any unit found appro-
priate. Accordingly, the Regional Director’s Decision
and Order dismissing the petition is reversed, the peti-
tion is reinstated, and the case is remanded to the Re-
gional Director for further appropriate action, including
a determination of the appropriate unit.