The Express-News Corp.

National Labor Relations Board - Board Decisions

Apr 2, 1976

223 N.L.R.B. 627 (N.L.R.B. 1976)

THE EXPRESS-NEWS CORP. 627
The Express-News Corporation and San Antonio Ty-
pographical Union #172 a/w International Typo-
graphical Union, AFL-CIO, Petitioner. Case 23-
RC-4219
April 2, 1976
DECISION ON REVIEW
BY CHAIRMAN MURPHY AND MEMBERS FANNING,
JENKINS , AND PENELLO
On June 13, 1975, the Regional Director for Re-
gion 23 issued a Decision and Direction of Election
in the above-entitled proceeding in which he found
appropriate the Petitioner's requested unit of news
department employees, including reporters and staff
writers, columnists, editorial writers, editors, copy
editors, cartoonists, photographers, photo clerks, li-
brarians, CRT operators, typists, and copy carriers.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8 , as amended, the Employer filed a
timely request for review of the Regional Director's
decision on the ground that compelling reasons exist
for reconsideration of the Board's policy with regard
to the professional status of employees in its editorial
department engaged in the assimilation, compilation,
and editing of news and editorial matter.
By telegraphic order dated July 9, 1975, the Na-
tional Labor Relations Board granted the request for
review and stayed the election pending decision on
review. Thereafter, the Petitioner filed a brief on re-
view. Southern Production Program, Inc., and the
Newspaper Guild referred to herein as SPPI and the
Guild, respectively, sought and were granted leave to
file briefs amici curiae.' The Employer, joined by
SPPI, requested oral argument. On August 21, 1975,
the Board granted the requests for oral argument
and, on September 12, 1975, oral argument was
heard. On October 15, the Petitioner, Joined by the
Guild, filed a motion to stay decision. The Employer
and SPPI filed a joint statement in opposition there-
to.
The Board has considered the entire record in this
case with respect to the issues under review, includ-
ing the briefs on review and the oral argument, and
hereby affirms the Regional Director's decision for
the following reasons: 2
In finding the requested unit appropriate the Re-
gional Director, on the basis of precedent,' rejected
' SPPI stated that its brief was also filed on the Employer' s behalf.
2 The motion to stay filed by the Petitioner is hereby denied . We also
deny a motion by Binghamton Press Company, Inc., to stay this decision,
and to consolidate it with Case 3-RC-6496, a pending case.
the Employer's contention that certain categories of
the employees involved (reporters , staff writers, col-
umnists , copy editors , editors , editorial writers, and
the cartoonist , referred to herein collectively as jour-
nalists) are professional employees and therefore
may not be included with the nonprofessional em-
ployees in the editorial department without a self-
determination election . The Employer and SPPI urge
reconsideration of the precedent relied on by the Re-
gional Director , contending that the record herein
supports a finding that the Employer 's journalists are
professional employees within the meaning of Sec-
tion 2(12) of the Act . For the reasons below , we find
no merit in this contention.
The Employer is engaged in the publication of two
daily newspapers as well as a Sunday edition at its
San Antonio , Texas, facility. There are approximate-
ly 104-112 employees in the news department. The
total number of employees in journalist classifica-
tions is not entirely clear-somewhere in the neigh-
borhood of 90.4 There is no history of collective bar-
gaining among any of the employees in the news
department.
The record reveals that there are approximately 45
reporters and staff writers whose duties include ob-
serving and reporting events , conducting interviews,
taking news reports over the telephone , and doing
research and other such tasks as are assigned by their
supervising editors . The Employer expects its report-
ers and staff writers to exercise initiative and imagi-
nation in the performance of their duties , as well as
to be accurate and have the ability to write clearly on
any topic which may be assigned to them . The Em-
ployer has four columnists who maintain regular col-
umns in the Employer's newspapers , generally deal-
ing with various aspects of city life. Columnists are
usually senior staff members who have demonstrated
superior writing ability . Editorial writers work under
the immediate supervision of the Employer's editor
and publisher in the preparation of material to be
included on the editorial pages of the paper.' Copy
editors, about 21 in number , and editors are usually
senior staff members . They work at various desks,
e.g., general news, sports , and women's news , review-
ing reporters' stories for accuracy, clarity, and style
and making any necessary corrections or revisions.
3Jersey Publishing Company, 76 NLRB 467 (1948); and Free Press Com-
pany, 76 NLRB 1047 (1948).
4 We note that there appear to be minor numerical discrepancies between
some of the Regional Director 's findings and the documentary evidence
submitted by the Employer, but these differences are insignificant and
would not alter the result herein.
5 The Employer's job description for this classification indicates that edi-
torial writers are members of the Employer's editorial board but it is not
clear from the record what role, if any, they play in the formulation of the
Employer's editorial policy. No party contends they are managerial employ-
ees.
223 NLRB No. 97
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copy editors in addition may be called upon occa-
sionally to write news stories from material obtained
through the wire services . All editors are expected to
exercise judgment to assure that all stories appearing
in the newspapers meet the Employer 's standards.
The Employer at present has one cartoonist who, as
his title implies, is responsible for creating pictorial
political commentary in accordance with the direc-
tives of various editors . In addition , he may be called
upon to illustrate in simple terms stories ranging
from politics to sports . Occasionally , he touches up
photographs and draws diagrams and maps to ac-
company particular articles.
The Employer has no policy of hiring and employ-
ing only journalists who have a degree evidencing
advanced educational training in journalism or com-
munications .6 Nor does the Employer maintain any
formal training or apprenticeship program which its
employees must complete prior to becoming journal-
ists. A college degree , although a favorable factor, is
not a prerequisite for employment as a journalist by
the Employer . As the Employer stated , "What we're
looking for is someone who has a broad education, a
capacity for intellectual advancement, someone who
can grow on the Job . . . . We try to hire creative
people who show an interest in writing ." The record
reveals that 52 of the Employer's currently employed
journalists have at least a college degree (with 6 of
these having advanced degrees), 31 have completed
some college level courses, and about 8 have no col-
lege study? Of the six with advanced degrees, two
have M.J.'s (master of journalism ). Additionally, 10
have B.J. degrees (bachelor of journalism), 29 have
B.A., B.S ., or B.B.A. degrees with their subjects in-
cluding journalism ,8 and 13 had B.A. degrees with no
indication of any courses in journalism.
In support of its contention that employees in the
disputed classifications are professionals , the Em-
ployer adduced evidence at the hearing that competi-
tion from other types of media, as well as demands
for excellence by its increasingly sophisticated read-
ership, has compelled it to hire specialists in several
6 Prior to the hearing in this case , the Employer had no written job de-
scriptions containing qualifications for the employees in question. However,
during the week between the first and second sessions of this hearing, the
Employer prepared (and later introduced into evidence ) documents with job
descriptions for the disputed classifications.
7 Over a more recent period, of 26 journalists hired between January 1974
and the hearing date, 19 had a college degree , 6 had completed some course
work on a college level, and I had not been to college . However , the Em-
ployer acknowledged that the high number of college graduates recently
available in the job market has contributed to its increased hiring of people
with degrees.
The Employers statistical evidence does not make fully clear the exten-
siveness of the training of these 29 employees in journalism or communica-
tions . All these employees took "subjects" in college which included jour-
nalism, but it is unclear whether all of these employees majored in
journalism.
fields, including politics, energy, business, medicine,
and education, among others. The Employer's pub-
lisher and editor testified that, since the early 1950's
when he served as Sunday editor, the Sunday edi-
tions have been vastly expanded and now include
special sections devoted to particular fields of inter-
est. One of these, called Insight, contains in-depth
background reports on major items in the news.
Other such sections deal with current developments
in the areas of the economy and finance, sports, and
the cultural scene , among others. In addition, the
Employer publishes a Sunday magazine supplement.
The Employer claims this type of comprehensive
coverage requires it to employ a staff of specialists of
the type not heretofore found at metropolitan dailies
such as the Employer's.
The gravamen of the Employer's position ex-
pressed both in its briefs and in oral argument is that
Jersey Publishing, supra,9 should be reversed and
journalists accorded professional status in view of the
dynamic changes which have occurred in the com-
munications media in recent years. Among the rea-
sons advanced in support of its position are the
trends towards specialization among news depart-
ment employees such as those involved herein; the
increasing number of college-trained personnel on
the staff, as well as the Employer's preference for
college graduates in its hiring practices; the close co-
operation between the newspaper industry and
schools of communications with respect to devel-
opment of academic standards and curriculum; the
greater demand for excellence by a more enlightened
public; and the unique responsibility of a free press
in a democratic system. The Petitioner and the
Newspaper Guild, in urging adherence to the cited
precedent, contended that journalists are not profes-
sionals within the statutory definition of that term
because they are not operating in a field that requires
all of its members to have knowledge of an advanced
type customarily acquired by a prolonged course of
specialized intellectual instruction. They argue that
the field of journalism is essentially one of general-
ists , and further argue that the Board would contra-
vene legislative intent were it now to conclude the
journalists are professionals within the meaning of
the Act.
Section 2(12) of the Act states:
9 Contrary to our dissenting colleague, the critical issue in Jersey Pub-
lishing was not whether journalists were required in that case to have licen-
ses or specialized training in institutions of higher learning . Rather, the
Board relied primarily on the following finding in In. 3:
We find nothing in the legislative history of the Act to indicate that
the Congress intended to include employees such as those involved in
the instant case in the above definition of professional employees.
Inasmuch as Jersey Publishing was decided in 1948-only I year after the
enactment of Sec. 2( 12)-we find the Board 's view of legislative history very
significant and still relevant to the case before us.
THE EXPRESS-NEWS CORP. 629
The term "professional employee" means-
(2) any employee engaged in work (i) pre-
dominantly intellectual and varied in character
as opposed to routine mental, manual, mechani-
cal, or physical work; (ii) involving the consis-
tent exercise of discretion and judgment in its
performance; (iii) of such a character that the
output produced or the result accomplished can-
not be standardized in relation to a given period
of time; (iv) requiring knowledge of an ad-
vanced type in a field of science or learning cus-
tomarily acquired by a prolonged course of spe-
cialized intellectual instruction and study in an
institution of higher learning or a hospital, as
distinguished from a general academic educa-
tion or from an apprenticeship or from training
in the performance of routine mental, manual,
or physical processes; or
(b) any employee, who (i) has completed the
courses of specialized intellectual instruction
and study described in clause (iv) of paragraph
(a), and (ii) is performing related work under the
supervision of a professional person to qualify
himself to become a professional employee as
defined in paragraph (a).
Based on the record before us, our interpretation
of Section 2(12) of the Act, and Board precedent in
this area, we conclude that the Employer's journalists
are not "professional employees" within the meaning
of Section 2(12). We do not question the intellectual
demand of the modern journalist's job nor the spe-
cial responsibilities inherent in his position. Certainly
reporters, staff writers, editorial writers, editors and
copy editors, and columnists must possess superior
writing skills and use initiative in approaching the
variety of tasks in which they are involved. We rec-
ognize that in the performance of their duties these
employees must of necessity exercise judgment in de-
ciding how to approach a given assignment and that
the story which ultimately appears in a newspaper is
often the result of rigorous intellectual work.
However, though the work of journalists may be
challenging and diverse, the critical issue , as recog-
nized by the parties and the amici in their briefs and
in their oral argument, is whether the work of these
journalists meets the requirements of clause (iv) of
paragraph (a) of Section 2(12). In our opinion it does
not. While knowledge of the type described in that
clause might be desirable for a journalist to have, it is
clear that his work generally does not require it. The
Employer's own testimony, as quoted above, shows
that in hiring journalists it looks for those with a
broad education. Clause (iv) specifically distin-
guishes knowledge acquired from a general educa-
tion from that required for professional work. In our
view, the general college education, which appears
increasingly possessed by journalists, does not satisfy
the standard of Section 2(12)(a)(iv). Assuming, ar-
guendo, that the knowledge obtained through an ad-
vanced degree specializing in journalism meets the
requirements of the statutory definition, we would
not find the Employer's journalists to be professional
employees because, as stated above, the Employer
does not require such a degree of its journalists-or
equivalent experience in lieu of a degree-and only a
handful of them in fact have advanced degrees in
journalism.
We do not suggest that Section 2(12) of the Act
mandates that "knowledge of an advanced type" be
acquired by all professionals in the unit through
training in an institution of higher learning. Rather,
this advanced knowledge must be customarily re-
ceived by a prolonged course of specialized intellec-
tual instruction and study in an institution of higher
learning. The test for determining professional status,
as stated by the Board in Western Electric Company,
Incorporated, 126 NLRB 1346, 1348-49 (1960), re-
mains valid. In Western Electric, the Board refused to
adopt any specific formula of education and experi-
ence as a prerequisite for finding professional status.
However, the Board, in addition to the language cit-
ed by the dissent, also significantly stated:
This is not to say that the background of indi-
viduals within a disputed group is in irrelevant
consideration, for background is examined for
the purpose of deciding whether the work of the
group satisfies the "knowledge of an advanced
type" requirement of Section 2(12)(a). If . . . a
group of employees is predominantly composed
of individuals possessing a degree in the field to
which the profession is devoted, it may logically
be presumed that the work requires "knowledge
of an advanced type." Conversely, if few in the
group possess the appropriate degree, it logically
follows that the education characteristics of the
work are not those requiring the utilization of
advanced knowledge... .
It is clear, based on our examination of the hiring
practices and the personnel of this Employer, that
the news department herein is not predominantly
composed of individuals with advanced knowledge
acquired through a prolonged course of specialized
study in journalism or communications in an institu-
tion of higher learning. The Employer has few em-
ployees with advanced degrees in journalism. As to
others, while they have had "subjects" in college
which included journalism, it is not clear how spe-
cialized or extensive was their journalism education.
Further, the Employer employs numerous journalists
with either no college or college training unrelated to
journalism. These facts support the Petitioner's con-
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tention that journalism is primarily a field of general-
ists with general academic backgrounds . The diverse
and broad backgrounds of journalists lead to the
conclusion that the knowledge required by and the
work of the journalists is not that customarily ac-
quired through specialized training in journalism or
communications , but instead is predominantly that
acquired through a varied and broad education.10
Certainly , universities have increasingly developed
departments of journalism , and students are utilizing
such academic training for careers in journalism.
However, we cannot conclude that journalism is
composed predominantly of men and women with
advanced training in these schools of journalism.
In rushing to find the work of journalists to be
"professional" within the meaning of our Act, our
dissenting colleague misinterprets Board precedent
and does not fully consider the strict requirements of
clause (iv) of paragraph (a) of Section 2(12). While
citing Western Electric, our colleague , having found
the work in question to be professional, argues that it
is irrelevant whether the person performing the work
received his training in an institution of higher learn-
ing or through experience. We do not agree because
the Board , as the language quoted above from West-
ern Electric clearly shows, has considered it relevant
whether the group of employees in question is pre-
dominantly composed of employees with degrees in
the field to which the profession is devoted. Second-
ly, before the work can be found to be "profession-
al," it must pass muster with the narrow require-
ments of Section 2(12) that the knowledge of an
advanced type be customarily acquired through spe-
cialized study. It would appear undisputed by all, in-
cluding our colleague , that journalists have different
and broad backgrounds and are called upon to per-
form varied functions and shoulder many responsi-
bilities . In our judgment, it is this diversity of back-
ground and function that leads to the conclusion that
journalists are not required to have knowledge of an
10 We do not find support for the Employers position in cases such as
Twentieth Century-Fox Film Corporation , 96 NLRB 1052 (1951 ). In that case,
all employees found to be professional had advanced knowledge in two
specific areas-literature and writing-and they all performed the same
work of evaluating manuscripts . Here , it is clear that all journalists do not
have knowledge of an advanced type in the specific area of journalism.
Neither is Westinghouse Electric Corporation, 80 NLRB 591 (1948), disposi-
tive of the issue herein . In that case the Board found that a unit of engineers
was "professional" because the work performed-engineering work-met
the requirements of Sec . 2(12), including clause (iv) of par . (a). That case is
inapposite because our ultimate conclusion in this case is based on our
finding that the work of journalists-unlike the work of engineers in West-
inghouse-does not require knowledge of an advanced type customarily re-
ceived through a prolonged course of specialized instruction and study in an
institution of higher learning. Thus, more in point is General Dynamics Cor-
poration, 213 NLRB 851 ( 1974), where the Board concluded that publication
editors, who used their engineering backgrounds to prepare publications for
external use , were not professionals within the meaning of the Act.
advanced type customarily acquired through special-
ized training in an institution of higher learning. Situ-
ations elucidated in this record-such as a sports-
writer with a B.A. in history-serve to belie the
contention that all journalists, to properly perform
their job, require knowledge of an advanced type
customarily acquired through specialized training in
journalism and communications.
Nor do we find professional status for journalists
because some professions (e.g., lawyers) have al-
lowed people to enter the profession through an ap-
prenticeship. It is only logical-as in the case of law-
yers-that a person could join the profession only
after the completion of a long apprenticeship. Here,
the Employer has hired as journalists persons with
neither advanced academic training in journalism
nor its equivalent in experience. Under our
colleague's analysis, these persons, though their aca-
demic backgrounds or experience were limited or un-
related to journalism , would instantly become profes-
sionals within the meaning of the Act. This result
would be contrary to the narrow limits imposed by
Congress in enacting Section 2(12) of the Act. The
statute requires a prolonged course-or equivalent ex-
perience-of specialized instruction. As journalists
are not required to have attained knowledge of an
advanced type through an advanced degree or com-
pletion of an extensive period of apprenticeship prior
to becoming journalists, their work is not "profes-
sional" within the meaning of Section 2(12).
Also, the strict requirements of Section 2(12) are
not met because some journalists may have advanced
knowledge in fields other than journalism. Though it
appears that the Employer has four individuals with
master degrees in fields other than journalism, the
record does not adequately inform us as to how
many individuals in the Employer's news department
have knowledge of an advanced type in other fields
such as economics or politics. However, even though
there be such individuals, Section 2(12) and Board
precedent do not allow for this factor to confer "pro-
fessional" status on all journalists. Again, Section
2(12) was meant to apply to small and narrow classes
of employees. We find it inconsistent with the nar-
rowness of the statute to permit any advanced back-
ground (rather than one in journalism or communi-
cations) to support a finding that all journalists are
"professionals." Further, we note that it is not unusu-
al today for a newspaper to hire someone with a spe-
cific background in another field-perhaps a promi-
nent figure in politics or sports-to write a column or
cover certain significant events. Under our
colleague 's analysis, these persons also, contrary to
the statute's intent , would become instant "profes-
sional" journalists.
THE EXPRESS-NEWS CORP. 631
Board precedent supports our view in this matter.
For example, in A. A. Matthews Associates, 200
NLRB 250 (1972), the Board found certain engi-
neers-an endeavor normally conferred professional
status by the Board-were not professionals because
the work they performed for that employer was not
professional work. Thus, it follows that though men
and women with backgrounds and advanced knowl-
edge in fields such as engineering , law, medicine,
economics, etc., write for newspapers, this factor can-
not serve to confer professional status within the
meaning of Section 2(12) on all journalists.
Contrary to our dissenting colleague's assertion,
we fully recognize that in determining the "profes-
sional" status of employees we must examine both
the nature of the work performed and the back-
ground of the employees involved. Thus, while an
employer's requirement that all its employees in the
unit have advanced degrees in the field to which the
profession is devoted would be persuasive evidence
that the employees are "professionals," such evi-
dence is not necessarily conclusive. Should an em-
ployer impose academic or experience requirements
that are unnecessary to accomplish the work in ques-
tion, the work may remain outside the definition of
"professional" work. Here, as noted above, many in-
dividuals with limited academic training in journal-
ism or limited journalistic experience perform well
their newsroom functions. This fact supports our
view that the work of these journalists is not "profes-
sional" within the meaning of the Act because it can
be competently accomplished without requiring ad-
vanced degrees in journalism or equivalent experi-
ence.
In reaching our conclusion , we do not denigrate
journalism as a calling or question in any way the
quality of the work product of journalists as a class.
Indeed, "professional" pride in one's work is an ad-
mirable trait, commonly associated with journalists
as a class, and one that is to be encouraged. We in
the majority take second place to no one, including
our dissenting colleague , in our admiration and re-
spect for those many journalists, past and present,
who have made significantly beneficial contributions
to our democratic system. Nonetheless, though many
journalists have performed important, laudable, and
even unique functions in our society, it does not nec-
essarily follow that journalists should be regarded as
"professionals" within the strict limits of Section
2(12) of the National Labor Relations Act. In many
fields of endeavor in our society there are men and
women who, in their own way, have made valuable
and unique contributions to the betterment of society
and the improvement of our institutions. It is not
unusual for such people or groups of people to be
referred to by admirers as "pros." " The dissent has
failed to distinguish between "professionals" within
the meaning of our Act and the term "professional"
as used to denote a person or persons doing admir-
able and challenging work. While we must be cogni-
zant of all the facts relevant to the issue before us,
the Board is not endowed with the responsibility of
evaluating the past and present contributions to soci-
ety of various fields of endeavor and somehow re-
warding or commending those fields where service
has been outstanding. Rather, in light of the statute
which we administer and the record before us, we
decide the issues , frequently narrow, in the case at
hand. Our dissenting colleague, while analyzing and
praising the field of journalism and its role in our
democratic system, has failed to focus on the limited
issue before us. In regard to "professional" status, we
do not have the latitude to confer this status on indi-
viduals other than those satisfying the strict criteria
set forth in Section 2(12) of the Act. Therefore, based
on the facts herein, our interpretation of Section
2(12) of the Act, and Board precedent for determin-
ing professional status, we conclude that those em-
ployees employed by the Employer as journalists are
not professionals within the meaning of the Act.
Accordingly, as we have affirmed the Regional
Director's decision," the case is hereby remanded to
him in order that he may conduct an election in the
unit found appropriate by him, as described below,
pursuant to his Decision and Direction of Election,
except that the eligibility payroll period therefor shall
be that immediately preceding the date of this deci-
sion on review: 13
All full-time and regular part-time news depart-
ment employees, including reporters, colum-
nists, staff writers, editorial writers, cartoonists,
editors, copy editors, photographers, photo-
clerks, librarians, CRT operators, typists and
copy carriers, employed by the Employer at its
San Antonio, Texas, facility, excluding all other
employees, office clerical employees, confiden
1 1 In journalism, it is not unusual for the more gifted or experienced to be
viewed as "professionals ." See discussion of "Journalism " in the Internation-
al Encyclopedia of Social Sciences, Vol. 8, pp. 265-271.
12 Member Jenkins would exclude editors, editorial writers, and colum-
nists from the unit herein as he believes employees in these categories are
primarily management related and reflect the views, policies, and guidance
of the owner-publishers of newspapers , and therefore lack a community of
interest with other news department employees . However, Members Fan-
ning and Penello note that the status of "editors , editorial writers, and col-
umnists" as management related was not litigated in this case , and they are
not prepared to indicate a willingness to exclude these categories from bar-
gaining units in all cases . They note that, while in some cases these catego-
ries may be primarily management related, they do not think that at all
newspapers these employees necessarily will reflect the views of the owner-
publishers . They would accordingly affirm the Regional Director's unit
finding including editors, editorial writers, and columnists.
13 [Excelsior footnote omitted from publication.]
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tial employees, guards, watchmen and supervi-
sors as defined in the Act.
CHAIRMAN MURPHY, dissenting:
Contrary to my colleagues, I would find that most,
if not all, of the Employer's newsroom employees,
including reporters , the political cartoonist , colum-
nists , staff writers , editorial writers , editors , and copy
editors, are professional employees within the mean-
ing of Section 2(12) of the Act and, as such, are enti-
tled to a self-determination election under Section
9(b)(1) of the Act before being included in a unit
with nonprofessional employees.14 To the extent that
this result is contrary to established Board prece-
dent,15 I would overrule such precedent. For, "[t]he
responsibility to adapt the Act to changing patterns
of industrial life is entrusted to the Board." 16
It has been nearly 30 years since the Board decid-
ed, in Jersey Publishing Company, supra, and Free
Press Company, supra, that reporters and journalists
are not "professional employees" under our Act. One
of the reasons-indeed the critical reason stated in
Jersey Publishing-for this conclusion was that "the
editorial department employees are not required to
have a license or undergo specialized training in a
school of higher learning." " As will be discussed be-
low, this is clearly an erroneous test under current
Board standards for determining professional sta-
tus.18 Nevertheless, the majority has chosen to adhere
to the foregoing precedent with respect to reporters,
thus ignoring the enormous advancements which
have occurred in the news profession generally and,
more specifically, in the nature and scope of journal-
ists' work and the training and education, including
continuing education, which they must have to per-
form their work effectively.
In finding that the news department employees are
professional employees , I rely on the nature of their
work, the advanced skills and specialized training re-
quired for effective performance of such work, and
the employees' and the Employer's unique responsi-
bilities under the First Amendment to the United
States Constitution.
Section 2(12) of the Act defines "professional em-
ployee" as follows:
(a) any employee engaged in work (i) pre-
dominantly intellectual and varied in character
as opposed to routine mental , manual , mechani-
14 Boyd S. Leedom v. William Kyne, President of Buffalo Section Westing-
house Engineers Assn.. 358 U.S. 184 (1958).
15 Jersey Publishing Company, 76 NLRB 467 (1948); Free Press Company,
76 NLRB 1047 (1948).
16 N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975).
1t Jersey Publishing, supra at 469.
18 See, e .g., Western Electric Company, Incorporated, 126 NLRB 1346
(1960).
cal, or physical work; (ii) involving the consis-
tent exercise of discretion and judgment in its
performance; (iii) of such a character that the
output produced or the result accomplished can-
not be standardized in relation to a given period
of time; (iv) requiring knowledge of an ad-
vanced type in a field of science or learning cus-
tomarily acquired by a prolonged course of spe-
cialized intellectual instruction and study in an
institution of higher learning or a hospital, as
distinguished from a general academic educa-
tion or from an apprenticeship or from training
in the performance of routine mental, manual,
or physical processes; or
(b) any employee, who (i) has completed the
courses of specialized intellectual instruction
and study described in clause (iv) of paragraph
(a), and (ii) is performing related work under the
supervision of a professional person to qualify
himself to become a professional employee as
defined in paragraph (a).
It is not disputed that the above definition of "pro-
fessional" fits employees in the Employer's news de-
partment as far as the first three criteria are con-
cerned. But the Petitioner vigorously argues that the
final requirement is not met. In my judgment, they
do meet all of the foregoing requirements and, there-
fore, are professional employees within the statutory
definition."
The record reveals that an employee in the news
department generally begins his or her journalistic
career as a reporter or staff writer, then moves up the
hierarchy to copy editor, and finally to editorial writ-
er, to columnist, or into management. The record es-
tablishes that reporters and staff writers here must
have a college education or its equivalent in experi-
ence and training . They must be knowledgeable not
only in journalism generally, but also in special fields
such as politics, economics, science, law, and similar
areas in order to explain accurately the many com-
plex technical events occurring in the world today.
Reporters and staff writers must be able to under-
stand, analyze, relate, and explain these events cor-
rectly and in proper historical perspective as well as
in relation to other current events. Finally, they must
19 This is not to say that everyone hired by the Employer as a reporter is
thereby automatically rendered a professional employee within the meaning
of Sec . 2(12) of the Act. Rather, I find, for the reasons fully explicated in the
text. infra , that most of the Employer 's journalists meet the statutory re-
quirements for professional status . To the extent that there may be some
newly hired employees in the Employer 's news department who have had
neither formal nor informal training as journalists , it is possible that they do
not perform work requiring "advanced knowledge" and that they are, there-
fore, not professional employees . Such employees , however , should be per-
mitted to vote subject to challenge so that their status can be resolved in a
postelection proceeding.
THE EXPRESS-NEWS CORP.
be able to write in a style which the public can com-
prehend.
Copy editors are more experienced reporters who
review the stories written by reporters and newswrit-
ers for accuracy, balance, clarity, and style. They
also write stories from materials received through the
wire services . Hence, copy editors must synthesize
the story and relate it in a manner the public will
understand . Copy editors possess not only the skills
mentioned above, but also the ability to condense a
story to its essence in order to meet space limitations
without destroying the story's balance and accuracy.
The Employer's columnists are selected for their
special expertise in a particular field (i.e., city life,
aviation , sports) and their demonstrated writing abil-
ity. The columnists analyze , explain , and comment
upon the meaning of the events within their fields of
specialty. They are usually journalists with extensive
experience as reporters and copy editors.
Similarly, the Employer 's editorial writers are se-
nior journalists who have had extensive experience as
reporters and copy editors. They are members of the
Employer's editorial board which formulates the
newspaper's editorial policy.20 They must keep in-
formed on all local , national , and international
events in order to assist in developing editorial poli-
cy. They must have knowledge of history in order to
understand the deeper significance of current events
and comment upon them in fullest perspective. After
the editorial policy decision is made, the editorial
writers must do extensive research of the subject and
write the editorial so as to express the paper's view-
point in a concise and logical manner.
The political cartoonist, like the editorial writer,
explains an event and conveys an opinion, generally
on matters of current public concern, but does so by
a picture drawing rather than by extensive writing.
However, like the columnists or editorial writers, the
cartoonist must have a broad knowledge of world
events, be well informed on all matters of current
public interest, and understand their subtle implica-
tions . In addition , of course , the cartoonist must be
clever, original , and able to draw."
The record shows-and the Regional Director
found-that, of the approximately 91 employees in
the Employer's news department, 52 have college de-
grees including 6 with advanced degrees; 23 have
had some college training plus practical experience in
the field of journalism; 8 have had some college
training but no practical experience; and 2 have had
20 See In . 38, infra.
21 At oral argument, counsel for the Union contended that Jack Ander-
son, whose column , with Les Whitten , appears in over 900 newspapers. and
Herblock , the famed Washington Post political cartoonist , are not profes-
sionals under our Act . This I cannot accept under any definition of "profes-
sional.'
633
neither college nor practical training.
Based on the foregoing and the entire record here-
in, it is clear that the work of the above-mentioned
employees is immensely varied and predominantly
intellectual in nature. Nor is it denied that the work
in the printed media requires the consistent exercise
of discretion and independent judgment in determin-
ing what story to pursue; how far to pursue it; whom
to interview; what questions to ask; and what to in-
clude, exclude, and emphasize in a story, and so
forth. Additionally, the character of the employees'
product, i.e., the news story, the editorial, or the car-
toon, cannot be standardized in relation to a given
period of time. Finally, it is my judgment that the
work requires knowledge of an advanced type which
is customarily, albeit not always or exclusively, re-
ceived in institutions of higher learning.22
The only rationale advanced by my colleagues for
finding that the journalists herein are not professional
employees within the meaning of the Act is that nei-
ther their work nor their Employer requires them to
possess advanced degrees in journalism. In support
of their first conclusion, the majority purports to rely
on the "Employer's own testimony . . . [which]
shows that in hiring journalists it looks for those with
a broad education." The majority's syllogistic rea-
soning is that since "clause (iv) [of Section 2(12)(a)]
specifically distinguishes knowledge acquired from a
general education from that required for professional
work," and because the Employer does not require
its journalists to have an advanced degree in journal-
ism, the employees are not performing professional
work. The majority next reasons that, even if an ad-
vanced degree in journalism were to satisfy the re-
quirements of clause (iv), the employees here would
nevertheless not have professional status under the
Act because the Employer does not require them to
have such a degree. Presumably, if the Employer
were not to require all of its journalists to have ad-
vanced degrees in journalism, the majority would
find them to be professional employees.
There are several major weaknesses in the
majority's rationale. First, it distorts the Employer's
testimony that its journalists are required to have a
college education or its equivalent in training and
experience to qualify for employment. Next, it ig-
nores the Board's prevailing test for determining pro-
fessional status. And, finally, it ignores the nature of
the work which the journalists perform.
The fact that not all of the Employer's present
news department employees possess college or uni-
versity degrees in journalism or, for that matter, in
some other specialized discipline, is irrelevant be-
22 The Ryan Aeronautical Co., 132 NLRB 1160, 1164 ( 1961): Twentieth
Century-Fox Film Corporation, 96 NLRB 1052, 1054-55 (1951).
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause the Act does not require such degree for pro-
fessional status . All that Section 2(12) of the Act re-
quires is that the employees possess knowledge of an
advanced type which is customarily received in insti-
tutions of higher learning. It does not mandate that
such knowledge must have been received at an insti-
tution of higher learning, but merely that it is custom-
arily received there. Indeed, the Board has repeatedly
held that a college education , least of all a degree, is
not essential for professional status if the employee
performs professional work 23 or has obtained com-
parable skills by individual study or on-the-job train-
ing.24 Thus, in Westinghouse, supra, the Board found
that certain engineers were professional employees
despite their lack of college degrees, because they
"have acquired comparable skill in their specialized
fields by individual study and experience, and by
taking numerous courses of instruction in institutions
of higher learning." In that case the employer did not
require its engineers to have college degrees and the
Board did not deem this fact to detract from a find-
ing that they performed professional work and there-
fore were professional employees. Without reversing
that precedent, the majority here finds that the jour-
nalists, even if they possessed advanced degrees in
journalism, cannot be found to be professional em-
ployees because their Employer does not require
them to have such degrees. The record is clear, how-
ever, that, although the Employer does not require
the journalists to have advanced degrees in journal-
ism, it does require them to have the equivalent in
experience and training.
Similarly, in Twentieth Century-Fox Film Corpora-
tion, supra at 1055, the Board found that employees
who read, evaluated, and critically analyzed manu-
scripts were professional despite their lack of a col-
lege education, and despite the fact that the employer
did not require such education as a condition of em-
ployment. There the Board said:
While the Employer does not require that a
reader have a college degree, a good educational
background, formal or otherwise, is necessary. A
representative of the Employer testified that the
Employer sought to "get people with some col-
lege education," although the equivalent, e.g.,
experience in similar work, was accepted. The
record discloses that a majority of the readers
have some college training. More important,
however, is the requirement that a reader have a
fairly wide knowledge of literature and some tal-
23 Chrysler Corporation-Space Division, 154 NLRB 352 (1965), and cases
cited therein ; Western Electric Company, Incorporated, 126 NLRB 1346
(1960), and cases cited therein.
24 Westinghouse Electric Corporation, 80 NLRB 591, 593 (1948); Twentieth
Century-Fox Film Corporation, 96 NLRB 1052, 1054-55 (1951).
ent for writing. Consistent with this requirement,
the record discloses that the Employer has pre-
ferred "people who had some flair for the liter-
ary field."
[The readers'] work is predominantly intellectual
and varied in character, involving the consistent
exercise of discretion and an aesthetic type of
judgment. Its performance requires a generally
advanced knowledge of literature and writing.
Upon the record as a whole, we find that the
readers are professional employees within the
meaning of the Act.
The facts here are clearly analogous to those quoted
above, and the holding of that case is equally appli-
cable to writers as to readers 25 -
Furthermore, in Western Electric Company, Incor-
porated, 126 NLRB 1346 (1960), the Board expressly
declined to adopt a specific formula containing edu-
cational and experience requirements, the individual
fulfillment of which would be a prerequisite to inclu-
sion in a professional unit. In rejecting this approach
the Board stated at 1348-49:
We have carefully considered the positions of
the parties to this proceeding . . . and have con-
cluded that the Petitioner's formula approach
for determining whether professional work "is
being engaged in by professional employees" is
not warranted. Section 2(12)(a) defines a profes-
sional employee in terms of the work he [or she]
performs. And Board decisions make it clear
that it is the work and not individual qualifica-
tions which is controlling under Section
2(12)(a).5 Therefore, if the work satisfies the
Act's criteria, the employees who engage in it
are professional employees; if the work does not
meet the specified requirements, the employees
performing it are not professional employees
.... This approach, unlike the Petitioner's,
does not emphasize personal qualifications at
25 The facts in that case are, in my view, virtually indistinguishable from
those herein . There, as here, the employer did not require the employees to
have a college degree; there , as here, the employer required its employees to
have a good educational background, formal or otherwise ; there , as here,
the employer tried to get employees with "some college education," al-
though the equivalent in experience was accepted ; there the majority of the
employees had "some college training ," whereas here a vast majority of the
employees (52 of 90) have a college degree , an additional 31 "have complet-
ed some college level courses," and only 8 employees out of 90 have had no
college courses; there the employer required its readers to have "a fairly
wide knowledge of literature and some talent for writing," whereas here the
Employer requires its journalists to have a fairly wide knowledge in such
fields as economics , history, politics, etc ., and as the majority concedes
"must possess superior writing skills."
The majority tries but cannot distinguish that case from this except by so
stating . Thus, in Twentieth Century, the Board, based on the above facts,
concluded that the readers had advanced knowledge in literature and writ-
ing and , hence , were professionals . Here, the majority is unwilling to con-
clude on even stronger evidence that journalists have advanced knowledge
in journalism and writing and are , hence, professionals. ,
THE EXPRESS-NEWS CORP. 635
the expense of the statutory mandate to make a of Texas. This form of joint endeavor between school
determination of professionality on the basis of of journalism and newspaper is very much like that
work performed. which has long existed between schools of medicine
3 See, for example , Northwestern Bell Telephone Company, 79
NLRB 549, 552, where the Board said, "In finding the plant engi-
neers to be professional employees, we are not passing on the individ-
ual qualifications of each engineer, but rather upon the character of
the work required of them as a group. This work we find meets the
requirements of Section 2(12)(a) of the amended Act."
This, it seems to me, is the logical approach to
determining whether an employee is a professional.26
Whether the person performing professional work re-
ceived his or her training in an institution of higher
learning or by on.the-job training and practice is, I
believe, irrelevant. For it should be remembered that,
before the relatively recent emergence of widely ac-
cessible professional schools , most doctors , dentists,
and lawyers received their professional training by
merely serving a term of apprenticeship with a practi-
tioner in the field coupled with extensive individual
reading and study.27 That these persons did not at-
tend formal institutions of higher learning or receive
academic degress in their areas of specialty did not
detract from their professional status if, in fact, they
subsequently performed professional work. Indeed,
even today a person can become a lawyer in some
States-like the great Commonwealth of Virginia-
by "reading" for the law, i.e., serving a term of ap-
prenticeship with a practicing attorney and by there-
after passing a bar examination.
Furthermore, the record discloses that journalism,
like teaching , nursing , and engineering , to name a
few, has become recognized by colleges and universi-
ties throughout the country as a professional disci-
pline in which degrees are awarded. The number of
colleges and universities granting degrees in journal-
ism has increased tremendously over the years, as
has the student enrollment in these schools. In addi-
tion, many schools of journalism now maintain close
working ties with local newspapers where senior jour-
nalism students are provided actual on-the-job train-
ing and experience in their profession while still at-
tending classes. The Employer, for example, provides
such training to journalism students of the University
26 My colleagues purport to affirm the standards established in Western
Electric but do not follow them. Rather , they adhere to the proposition that.
because the Employer does not require its journalists to have an advanced
degree in journalism , the journalists are not performing professional work
and, therefore , are not professional employees . This is simply not the stan-
dard adopted in that case . Indeed , the majority's reasoning totally ignores
the teachings of that case ; namely, that "the statutory mandate [is] to make
a determination of professionality on the basis of work performed" rather
than the individual worker's qualifications . That this is so is obvious from a
reading of that case in its entirety.
27 Some of America 's great lawyers who did not attend formal law schools
include Abraham Lincoln, Chief Justices John Marshall and Salmon P.
Chase, Daniel Webster , and Clarence Darrow.
or nursing and hospitals, or between university
schools of education and local elementary or high
schools. In" all of these situations, students are afford-
ed an opportunity to supplement their theoretical
classroom education by actual experience in their
chosen professions. The growth of such internship
programs for journalism students is a further exam-
ple of the development that journalism is a recog-
nized profession. I reject the argument that journal-
ists lack professional status under our Act because
they, unlike doctors, lawyers, nurses, teachers, etc.,
are not required to pass a state imposed examination
and are not licensed, or because they do not belong
to professional societies which restrict membership to
those who meet their standards. Such licensing re-
quirement would, in my opinion, be unconstitutional
under the First Amendment.28 Nor is the journalist's
professional status impaired because some newspa-
per writers are inept, inaccurate, or irresponsible. Sad
to state, one finds similar deficiencies in other profes-
sions.29
Nor is "advanced knowledge" for a professional
journalist limited to journalism per se. Indeed, as is
shown by the wide range of. complex and technical
subjects and events which journalists must regularly
assess and communicate to the public, advanced
knowledge in other specialized fields, such as eco-
nomics, politics, science , literature, and the humani-
ties , coupled with an ability to write for easy com-
prehension, compels the qualification-or
recognition-of journalists for professional standing
under our Act. One need only read Future Shock 30
or, indeed, any daily metropolitan newspaper, to
know that the journalist must have a vast and diversi-
fied knowledge of a myriad of disciplines to observe,
28 Associated Press, et a t. v. United States, 326 U .S. 1, 20 (1945 ). Mr. Jus-
tice Black , writing for the majority , said that the First Amendment "rests on
the assumption that the widest possible dissemination of information from
diverse and antagonistic sources is essential to the welfare of the public, that
a free press is a condition of a free society . . . . Freedom to publish means
freedom for all and not for some." Similarly, in Liberty Lobby, Inc. v. Drew
Pearson, et al., 390 F.2d 489 (C.A.D.C., 1968), the court affirmed that the
First Amendment "protects the free expression and exchange of ideas re-
gardless of their merit because this is considered imperative to open and
`robust debate ' on matters of public interest."
29 1 fully agree with my colleagues that a "professional " employee under
Sec. 2(12) of the Act must be one who performs professional work . Thus, I
would have no difficulty in finding that a doctor, a lawyer, or even a jour-
nalist who is working as a production or maintenance employee in a factory
is not a "professional" employee, but part of the production and mainte-
nance unit.
My colleagues assert that I have failed "to distinguish between 'profes-
sionals' within the meaning of our Act and the term 'professional' as used to
denote a person or persons doing admirable and challenging work." In
response to that, I shall only quote Gertrude Stein who said "A rose is a rose
is a rose" and under the facts in this case a professional is a professional is
a professional.3
0Alvin Toffler, Future Shock, Random House (1970).
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understand, and explain intelligently, in words the
average reader can understand, the ever-changing
events governing our lives which occur every day
around the world. It would indeed be archaic and
unrealistic to believe that the work of the journalist
can be performed without the "advanced knowl-
edge" which the Act requires of "professional em-
ployees."
Finally, and perhaps most significantly, journalists
and their publishers have a unique responsibility
which is not shared by any other profession. The par-
amount importance of a free press was recognized
among the American colonies long before the Consti-
tution was envisioned . Thus, in 1737, James Alexan-
der, then editor of the colonial New York Weekly
Journal, wrote, "Freedom of speech is a principal pil-
lar in a free government . When this support is taken
away, the Constitution is dissolved." 31 Alexander
was one of the principals in the saga of John Peter
Zenger whose trial and acquittal on August 4, 1973,
was the first step toward establishing freedom of the
press in America 32 The Zenger case guaranteed for
the first time the right of the people to know-
through newspapers, periodicals, and pamphlets-
what was going on within their Government; it freed
them to engage in open political discussions and de-
bates; and it made public opinion a powerful factor
in the conduct of Government affairs. The framers of
our Constitution recognized their indebtedness to the
Zenger case.33 Indeed, so cherished and deep rooted
was the belief that a democratic form of government
cannot exist without a free press that the Founding
Fathers in 1791 deemed it essential to guarantee, in
the First Amendment to the Constitution, that "Con-
gress shall make no law . . . abridging the freedom
of speech or of the press." 34
The continuing importance of the journalist's role
in informing and educating the public and encourag-
ing and promoting open debate upon all issues af-
fecting the citizenry cannot be overstated. To the ex-
31 Vincent Buranelli , The Trial of Peter Zenger, New York University
Press, Inc. (1957). p. 141.
32 Ibid. Zenger, a German immigrant printer who became publisher of the
New York Weekly Journal, was accused of "seditious libel" for publishing
articles exposing and criticizing the corrupt administration of New York's
Colonial governor , Colonel William Cosby . At that time, 1735, truth was no
defense against libel. Indeed , "the greater the truth , the greater the libel"
was the accepted legal principle . Andrew Hamilton, a lawyer from Philadel-
phia, defended Zenger and secured his acquittal by the jury and upon the
novel theory that freedom of the press is a basic need of a free society and
that truth is a defense to libel. See also Livingston Rutherford , John Peter
Zenger: His Press. His Trial, and a Bibliography of Zenger Imprints, Dodd.
Mead & Company ( 1904).
33 Gouverneur Morris pronounced that "The trial of Zenger in 1735 was
the morning star of that liberty which subsequently revolutionized Ameri-
ca." Ibid., p. 63.
34 In fact, Thomas Jefferson once said , "Were it left for me to decide
whether we should have a government without newspapers , or newspapers
without a government , I should not hesitate a moment to prefer the latter."
tent that we enjoy the blessings of liberty in a demo-
cratic society today, a primary debt of gratitude must
go to the journalists, the reporters, columnists, news-
writers, editors, and their publishers who have bat-
tled on the people's behalf to keep the free press
from, and untrammeled by, Government interfer-
ence.35 Explaining the importance of the journalist's
role, Mr. Justice Black, concurring in the Pentagon
Papers case,36 said:
In the First Amendment the Founding Fa-
thers gave the free press the protection it must
have to fulfill its essential role in our democracy.
The press was to serve the governed, not the
governors. The Government's power to censor
the press was abolished so that the press would
remain forever free to censure the Government.
Only a free and unrestrained press can effective-
ly expose deception in government. And para-
mount among the responsibilities of a free press
is the duty to prevent any part of the govern-
ment from deceiving the people . . . In my view,
far from deserving condemnation for their cou-
rageous reporting, . . . [the newspapers in-
volved] and other newspapers should be com-
mended for serving the purpose that the
Founding Fathers saw so clearly. In revealing
the workings of government that led to the Viet-
nam war, the newspapers nobly did precisely
that which the Founders hoped and trusted they
would do.
In a similar vein, Judge Skelly Wright, concurring
in the Liberty Lobby case,37 said:
The public has an interest in knowing who is
influencing or attempting to influence their pub-
lic officers, for what purpose, the means adopted
to that purpose, and the results achieved. And
the press has a solemn obligation to exercise its
First Amendment right to keep the public informed
in an area so vital to the democratic process. [Em-
phasis supplied.]
In addition to the foregoing well-established con-
stitutional principles, it must be remembered that the
employees here in issue are not engaged in manufac-
turing nuts and bolts and a newspaper is not a can of
tomato soup. The "product" with which the employ-
ees deal is the promotion of truth. As Mr. Justice
Frankfurter, concurring, so aptly and cogently stat-
ed, in Associated Press, et al. v. United States, 326
U.S. 1, 27-28 (1944):
35 See, e.g., New York Times Co. v. Sullivan. 376 U.S. 254, 269-270 (1964),
and cases cited therein.
36 New York Times Co. v. United States, 403 U.S. 713, 717 (1971). See Cox
Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-492 (1975); Time, Inc. v.
Firestone, 424 U.S. 448 ( 1976), dissenting opinion of Justice Brennan.
3' Liberty Lobby, Inc. v. Drew Pearson, et aL, 390 F.2d 489, 492 (1968).
THE EXPRESS-NEWS CORP.
But in addition to being a commercial enter-
prise, it [the Associated Press] has a relation to
the public interest unlike that of any other enter-
prise pursued for profit. A free press is indis-
pensable to the workings of our democratic soci-
ety. The business of the press, and therefore the
business of the Associated Press, is the promo-
tion of truth regarding public matters by fur-
nishing the basis for an understanding of them.
Truth and understanding are not wares like pea-
nuts or potatoes.
To take the position that persons applying the
breadth of knowledge and understanding that is es-
sential in performing these vital functions. are per-
forming only routine, nonprofessional skills is ludi-
crous on its face. The broad spectrum of knowledge,
the ability to probe into the meaning of an event, and
the ability to write clearly and concisely in newspa-
per style are the essence of professionalism exercised
by employees who, as reporters, editors, columnists,
and political cartoonists, carry the constitutional
637
burden of keeping the citizens informed on all man-
ner of subjects around the world affecting their lives.
There is no question in my mind, and I would find,
that they meet the statutory definition of "profes-
sional employee." 38
38 Contrary to Member Jenkins' view , I am not persuaded that the record
herein contains sufficient evidence to establish conclusively that the
Employer's editors, editorial writers, and columnists are "primarily manage-
ment related" employees . Indeed, none of the parties contended that these
employees are managerial , and there is not a scintilla of evidence that either
the editors or the columnists participate in management decisions or that
they have a role in formulating management 's editorial policies. There is
some evidence that the editorial writers sit on the editorial board which
formulates the Employer's editorial policy, although the record does not
disclose the extent , if any, of their actual participation in the policymaking
process. It is also possible, although not contended by the parties, that the
editors possess and/or exercise some supervisory authority over staff writers
and/or the copy editors. There is no evidence, however, that columnists or
editorial writers possess or exercise such authority . Nevertheless, I would
agree with Member Jenkins' view that if the editorial writers and the editors
are in fact managerial and/or supervisory employees , they should, of
course, be excluded from the unit. N.L.R.B. v. Bell Aerospace Company,
Division of Textron, Inc., 416 U.S. 267 (1974). In light of the inadequacy of
the record on this issue , however, I would allow the editorial writers and
editors to vote subject to challenge so that their status can be resolved in a
postelection proceeding.