Times-World Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1965

151 N.L.R.B. 947 (N.L.R.B. 1965)

TIMES-WORLD CORPORATION 947
further recommend that the Board order the Respondents to preserve and, upon
request, make available to the Board, payroll and other records to facilitate the
checking of the amount of backpay due.
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By discharging Odes Glassco and C. W. Neal because of their protected
concerted activities , thereby interfering with, restraining , and coercing employees
in the rights guaranteed in Section 7 of the Act , the Respondents jointly and
severally have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
2. The aforesaid labor practices are unfair labor practices within the meaning of
Section 2(6) and (7) of the Act.
3. The Respondents have not engaged in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
[Recommended Order omitted from publication.]
Times-World Corporation and Chauffeurs, Teamsters & Helpers
Local Union No. 171, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Petitioner . Case No. 5-IBC-4599. March 22, 1965
DECISION AND ORDER CLARIFYING CERTIFICATION
Pursuant to a stipulation for certification upon consent election,
the Petitioner was certified on May 14, 1964, as the representative
of a unit of truckdrivers, helpers, mailroom employees, and garage
employees, excluding office clericals, guards, and supervisors as
defined in the National Labor Relations Act.
On July 13, 1964, the Petitioner filed a motion for clarification
of the certification, requesting the National Labor Relations Board
to declare that four named individuals classified as foremen or
assistant foremen of the mailroom are properly included in the
unit as nonsupervisory employees. The Employer filed a response
to the Petitioner's motion, contending that the four individuals
in question are supervisors who must be excluded from the bar-
gaining unit.
Upon considering the matter, the Board was of the opinion that
the issues raised by the parties could best be resolved after a
hearing, and it therefore referred the proceeding to the Regional
Director for Region 5 for such purpose. A hearing was there-
after held before Hearing Officer Maurice J. Nelligan. His rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. Following the hearing, the Employer submitted a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
151 NLRB No. 91.
948 DECISIONS OF NAPIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
The Petitioner's motion for clarification asserted that at the
consent-election conference the Employer agreed that the four
working foremen in the mailroom were not supervisors; and that
the Employer is therefore now estopped from contesting their
status and their proper inclusion in the unit.'
The record shows, and we find, that at the conference leading up
to the consent-election agreement, the Employer asserted that the
names of the four mailroom foremen should be included on the
voting eligibility list, in response to certain questions of the union
representative as to indicia of their supervisory authority. But
regardless of precisely what the parties understood the significance
of this action to be, we agree with the Employer that it is not
precluded from now raising the question as to the supervisory
status of these individuals. We believe the Lake Huron Broad-
casting Corporation, 130 NLRB 908, is dispositive on this point.
The Board held in that case that an agreement of the parties in
a consent-election proceeding as to an individual's supervisory status
would not preclude challenge on that basis inasmuch as the inclusion
of a supervisor would contravene the Act. Nor is it a material
difference that in Lake Huron the ballots of the alleged supervisors
were challenged at the election, while here they were permitted to
vote without challenge, and the question raised by a motion to
clarify certification.
This brings us then to the question whether the duties and
responsibilities of the mailroom working foremen require their
exclusion from the certified unit as supervisors.
The Employer is a newspaper publisher in Roanoke, Virginia.
It publishes a morning and evening daily, and a Sunday newspaper
which are distributed throughout southwest Virginia and neighbor-
ing States. The four foremen work in the mailing room of the
circulation department, two on the day shift and two on the night
shift. The two assistant foremen report to the foremen, who in
turn reports to the transportation manager, and his supervisor,
the circulation manager. The mailing room is the intermediate
operation between the pressroom and the loading docks, from which
the papers are distributed by truck to various distribution points.
The papers are sent by conveyor from the pressroom to the mailing
room, where they are sorted, bundled, addressed, and weighed.
They are then loaded on trucks by means of a chute.
1 The Petitioner relies on Cruts Along Boats , Inc, 128 NLRB 1019, in which the Board
held (Members J. A. Jenkins and Fanning dissenting) that a stipulation at a hearing
that certain individuals were not supervisors was thereafter conclusive in any further
proceedings arising out of the representation matter
WILSON & TOOMER FERTILIZER COMPANY 949
The mailroom foremen and assistant foremen work a normal
five-day or night week, with each assistant foreman taking sole
charge of the room on the two shifts when his foreman is off. On
the 3 days or nights that both the foremen and assistant foremen are
present they divide their supervision. The mailroom complement
range from 15 to 45, depending on the size of the press run. In
the case of unexpected absences, the foreman or assistant foreman
selects replacements from a regular roster maintained for such
purpose. They assign and reassign personnel to the various jobs
in the mailroom such as counter, tieing machine, or weigher, during
the course of the shift as exigencies require. They coordinate
the mailroom activities with the flow of papers from the pressroom
so that the truck deliveries are made on schedule. They may order
additional paper truck deliveries, and split truck runs to meet their
time schedules, or change truck run schedules where necessary to
accommodate delay due to pressroom makeover. They instruct and
assign new employees, discipline, lay off, and effectively recommend
discharge of employees for intoxication, misconduct., or inadequate
job performance, and effectively recommend the hire and upgrading
of employees.
They perform manual work in the mailroom about half their time,
and receive about a 10-percent pay differential for a standard
50 hour workweek.
We are satisfied from the record that the mailroom foremen and
assistant foremen have the authority to responsibly direct the
work of the mailroom employees, and to effectively recommend
their hire, upgrading, discipline, and discharge. As they possess
the statutory indicia of supervisors under Section 2(11) of the
Act, we shall exclude them from the unit.
[The Board clarified the certification issued herein on May 14,
1964, by specifying that the day and night foremen and assistant
day and night foremen in the mailroom of the Employer's circula-
tion department are excluded from the unit as supervisors.]
Plymouth Cordage Company d/b/a Wilson & Toomer Fertilizer
Company and International Chemical Workers Union, Local
No. 667, AFL-CIO. Case No. 12-CA-2834. March 23, 1965
DECISION AND ORDER
On August 14, 1964, Trial Examiner Lee J. Best issued his
Decision in the above-entitled proceeding, finding that the Respond-
151 NLRB No. 106.