San Jose Mercury

National Labor Relations Board - Board Decisions

Nov 7, 1972

200 N.L.R.B. 105 (N.L.R.B. 1972)

SAN JOSE MERCURY
Northwest Publications , Inc. d/b/a San Jose Mercury
and San Jose News, Petitioner and San Jose
Newspaper Guild , Local 98, affiliated with Ameri-
can Newspaper Guild, AFL-CIO. Case 20-UC-48
November 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a petition of Northwest Publications, Inc.,
for clarification of unit duly filed on September 30,
1971, under Section 9(b) of the National Labor
Relations Act, as amended, a hearing was held on
June 21, 1972, before Hearing Officer Helen A.
Phillips. On June 27, 1972, the Regional Director for
Region 20 issued an order transferring the case to the
Board. Thereafter, briefs were filed by the Petitioner
and the Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Union involved herein is a labor organiza-
tion within the meaning of the Act and claims to
represent certain employees of the Employer.
3. The Petitioner publishes the San Jose Mercury
and the San Jose News in San Jose, California. The
history of collective bargaining between the Petition-
er and the Union dates back to 1937. The current
contract between the parties, for a term extending
from November 2, 1970, to December 31, 1973,
covering a unit never certified by the Board includes:
... all the employees of the Publisher in the
editorial, business, and janitorial departments,
including advertising, business office, inside
circulation, telephone operators and clerical
employees, excepting those positions and individ-
uals specifically excluded from the terms of the
contract.
Article III of the contract enumerates specified
"executive positions" which are excluded from the
coverage of the contract.
Petitioner contends that 26 job classifications,
which have been treated by the parties as part of the
bargaining unit, are supervisory and should therefore
be excluded from the unit.
105
In Northwest Publications, Inc. d/b/a San Jose
Mercury and San Jose News, 197 NLRB No. 32, the
Board dismissed the unit clarification petition of the
Petitioner involved herein. In that case, because the
individuals that the Petitioner sought to exclude from
the bargaining unit were clearly included in the
description of the unit in the current contract of the
parties, the Board, under its rationale in Wallace-
Murray Corporation, Schwitzer Division, 192 NLRB
No. 160, found that it would be disruptive of the
bargaining relationship voluntarily entered into by
the parties to clarify the unit.
The Petitioner filed the unit clarification petition
involved herein on September 30, 1971, and request-
ed that the Board clarify the bargaining unit to
exclude alleged supervisors. The collective-bargain-
ing agreement of the parties has a reopener provision
providing in part as follows:
As of December 1, 1971, either party may raise
for negotiation any non-economic issues pertain-
ing to terms and conditions of employment
whether these issues are covered by this agree-
ment or not. Any such issues shall be raised by
written notice to the other party no later than
October 1, 1971. The written notice shall be
accompanied by a detailed statement of issues
raised and proposed changes.
On any issues not resolved and not referred to
arbitration the status quo shall remain un-
changed.
Having filed the petition herein during the period in
which proposals for midterm modifications to the
contract could be made, the Petitioner contends that
it would not be disruptive of the parties' bargaining
relationship for the Board to clarify the unit. The
Petitioner states that the parties contemplated some
disruption of their bargaining relationship in that
they provided in their contract for midterm modifi-
cations.
Nonetheless, the record shows that the alleged
supervisors are still included within the coverage of
the current collective-bargaining agreement. During
the reopening of the contract, the Petitioner did not
propose that there be additional exclusions from the
contract. The recent supplemental agreement
reached by parties after negotiations pursuant to the
reopener provision did not change the description of
the bargaining unit. The contract still excludes only
certain "executive positions" and not supervisors as
defined by the Act. The arbitration procedure is
available to the parties in order to resolve what jobs
are "executive positions" and thereby excluded from
the contract. Furthermore, the jobs alleged by the
Petitioner to be supervisory have existed for many
200 NLRB No. 20
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years and their status has not changed since the
execution of the current contract. In these circum-
stances, were we to clarify the bargaining unit as
requested by the Petitioner, we would be permitting
one of the contracting parties to effect a change in
the definition of the bargaining unit during the
contract term. Such a change, as we held in Wallace-
Murray, would be disruptive of an established
bargaining relationship.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Employer's
petition herein be dismissed.
1 See also Monongahela Power Co., 198 NLRB No. 177.