Wichita Eagle & Beacon Publishing Co., Inc. v. NLRB

• Decision Date: 02 July 1973
• Docket Number: No. 72-1673.,72-1673.
• Citation: 480 F.2d 52
• Parties: WICHITA EAGLE & BEACON PUBLISHING CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

480 F.2d 52 (1973)

WICHITA EAGLE & BEACON PUBLISHING CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 72-1673.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted March 29, 1973.

Decided July 2, 1973.

Gerrit H. Wormhoudt, Wichita, Kan. (Paul R. Kitch and J. Eric Engstrom, Wichita, Kan., with him on the Brief), for petitioner.

Corinna Lothar Metcalf, Atty. N. L. R. B. (Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Leonard M. Wagman, Atty., N. L. R. B., with her on the Brief), for respondent.

Before PHILLIPS, SETH and HOLLOWAY, Circuit Judges.

SETH, Circuit Judge.

Wichita Eagle & Beacon Publishing Co., Inc. petitions this court, pursuant to 29 U.S.C. § 160(f), to review and set aside an order of the National Labor Relations Board (199 NLRB No. 50). The Board cross-petitions for enforcement of its order.

The Board has found that the newspaper had engaged in unfair labor practices within the meaning of sections 8(a)(1) and (3) of the Act, by transferring employee Dorothy Wood, against her will, from the editorial page department to the Sunday magazine department because of the said Wood's union activities, and by telling employee Wood that consequences of her union membership and activity might be severe.

The record shows that the newspaper is engaged in the publishing, sale, and distribution of daily newspapers in Wichita, Kansas. In August 1970, the Wichita Newspaper Guild, affiliated with The Newspaper Guild, AFL-CIO, filed a petition with the Board seeking certification as the collective bargaining agent of the newspaper's employees. The Board conducted a hearing on the petition and issued a Decision and Direction of Election. In connection therewith, the Board found that two "editorial writers," Dorothy Wood and Theodore Blankenship, should be included in the bargaining unit as they did not "possess indicia of managerial employees."

The newspaper filed a request for review of the Decision and Direction of Election with the Board, limited to the inclusion of the two editorial employees in the bargaining unit, but the Board denied the request for review.

An election was conducted by the Board among the unit that it had determined was appropriate and the Union was certified as the collective bargaining agent for the bargaining unit. Contract negotiations between the newspaper and the Union were begun, and at the time of the hearing of the unfair labor practice complaint the parties had not reached a contract.

As to Mrs. Wood, the Union filed charges and a hearing was held before a trial examiner. The trial examiner found that the newspaper had violated sections 8(a)(1) and (3) of the Act by transferring Mrs. Wood from the editorial page department to the Sunday magazine department because of her union activities. He recommended that she be reinstated in the editorial page department and that she be awarded any back pay that she would have been entitled to, including increases in salary, but for her transfer. The newspaper filed exceptions to the trial examiner's Decision. The Board issued its Decision and Order, adopting the trial examiner's Decision and adopting his recommended Order.

Mrs. Wood's position prior to her transfer to the Sunday magazine department was that of an editorial writer. As the trial examiner's Decision states, the editorial page department of the newspaper consisted of three people. Charles Pearson, editor of the editorial page, was the acknowledged supervisor of the two employees in the editorial page department, Mrs. Wood and Mr. Blankenship. He was excluded from the collective bargaining unit at the representation hearing by the Board. In the words of the trial examiner, John H. Colburn, editor and publisher of the newspaper, was also part of the editorial page department "in a real but perhaps ex officio sense." The trial examiner's Decision includes this description of the relationship of the positions:

"Normal day to day procedure, in the editorial page department, was the holding of a midmorning conference, with Colburn, Pearson, Wood and Blankenship participating. In turn, at the conference, Pearson, Wood, and Blankenship would be asked what he or she had in mind for an editorial. Wood, for instance, when thus asked, might say that she had in mind writing a piece on ecology. Colburn or Pearson might say that we had an editorial on air and water pollution last week so we will not go on ecology again at this time. That would dispose of Wood\'s proposal. Or, for instance, Colburn might have responded to Wood\'s proposal in the following vein: What particular aspect of ecology do you have in mind; Wood would respond, with some details and elaboration; the matter would then be discussed by those present; Colburn might then say to Wood, all right, give it a try. On some other subject thus raised, Colburn might make it clear that there were certain specific things that he wished to be stated in the particular proposed editorial, e. g., the theme of the editorial should be that, on balance, after weighing the arguments pro and con, the Government should proceed with the development of the supersonic transport plane because of the need to maintain leadership in the field of air transportation and because of the need to maintain a viable aerospace industry and the tens of thousands of jobs involved in that and in satellite industries. The editorial writer would follow such a directive.

"Following the foregoing type of daily conference with Colburn, Pearson, Wood, and Blankenship would return to their offices. They would then get together in Pearson\'s office and discuss at greater length topics that had received tentative approval at the conference with Colburn. Views and possibly conflicting contentions would be exchanged and argued. In most instances it would be at this tripartite conference that definite editorial topics would be assigned by Pearson, to Wood, Blankenship or himself.

"After a writer drafted or wrote an editorial, it was then submitted to Pearson. He might approve it, disapprove it, or prescribe changes or revision. If the editorial cleared Pearson, it would then go to Colburn. Again, the editorial might be approved, rejected, or rejected subject to some particular revision being made." Trial Examiner\'s Decision, Findings and Conclusions.

Whenever a particular member of the editorial department was assigned a topic which he or she felt unable to write upon, either for reasons of personal conviction or otherwise, upon request the writer would be excused from the assignment. However, as the trial examiner found, ". . . every witness in this case, including Wood, agrees that the editorials of the newspaper function as the voice of the newspaper's ownership and management. What appears in an editorial is the subjective viewpoint of management." Trial Examiner's Decision, Findings and Conclusions.

Petitioner newspaper contends that editorial writers have the essential characteristics of managerial and confidential employees and therefore the two editorial writers in question, Mrs. Wood and Mr. Blankenship, were improperly included in the collective bargaining unit to begin with, and the newspaper's action in transferring Mrs. Wood was not properly subject to the Act's coverage. On the particular facts of this case, as brought out in the trial examiner's Decision and from an extensive reading of the record, we agree.

We recognize that the task of determining...