Walla Walla Union Bulletin, Inc. v. N.L.R.B.

• Decision Date: 29 October 1980
• Docket Number: No. 78-3656,UNION-BULLETI,INC,78-3656
• Citation: 631 F.2d 609
• Parties: 105 L.R.R.M. (BNA) 3065, 89 Lab.Cas. P 12,340 WALLA WALLA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 609

631 F.2d 609

105 L.R.R.M. (BNA) 3065, 89 Lab.Cas. P 12,340

WALLA WALLA UNION-BULLETIN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 78-3656.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1980.

Decided Oct. 29, 1980.

Thomas A. Lemly, Davis, Wright, Todd, Riese & Jones, Seattle, Wash., for petitioner.

Richard Cohen, Washington, D.C., argued, for respondent; Elliott Moore, NLRB, Washington, D.C., on brief.

On Review of an Order of the National Labor Relations Board.

Before ANDERSON and SKOPIL, Circuit Judges, and BYRNE, ^* District Judge.

SKOPIL, Circuit Judge:

INTRODUCTION

The Walla Walla Union-Bulletin petitions for review of an order of the National Labor Relations Board, 239 NLRB 24 (1978). The Board cross-petitions for enforcement. The Board found that the Union-Bulletin violated sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1), by refusing to bargain with a newly certified union composed of the newspaper's employees. The Union-Bulletin argued that the Board improperly included managerial and supervisory personnel in the bargaining unit.

We find substantial evidence in the record to support the Board's conclusion that the photo editor, sports editor, and wire editor are not supervisory personnel. They were properly included in the bargaining unit. We do not find, however, substantial evidence to support the Board's determination that the editorial editor was properly included in the unit. An examination of the duties and responsibilities of the editorial editor supports only a finding that he is a managerial employee, excludable from the bargaining unit. The Board's order is enforced in part and denied in part.

FACTS

The Walla Walla Union-Bulletin publishes an evening newspaper. A group of its employees filed a petition with the NLRB seeking certification as the collective bargaining representative of certain "newsroom employees". The unit was described as "all full-time, wage-earning" members of the newsroom staff with the exception of the managing editor and news editor. Included were all reporters, photographers, and other editors. The Union-Bulletin argued that the editorial page editor should have been excluded as a "managerial" employee, and the photo, sports, and wire editors should have been excluded as "supervisory" employees.

After conducting a hearing, the Regional Director determined that the four editors should be included in the petitioned unit. The Union-Bulletin's request for review was denied by the NLRB.

A certification election was held. Sixteen ballots were cast. Eleven were in favor of the union and one opposed. The Union-Bulletin challenged the four remaining ballots cast by the editors. The Board certified the union as the exclusive bargaining representative.

The Union-Bulletin refused to bargain with the union, asserting that the issue of inclusion of the supervisory and managerial employees must first be resolved. The union filed an unfair labor charge, alleging that the refusal to bargain violated sections 8(a)(5) and (1). The Union-Bulletin admitted that it refused to bargain but denied that it violated the Act. It argued that the refusal to bargain was justified by the Board's alleged error of including the four contested editors in the bargaining unit.

The Board determined that section 8(a)(5) and (1) violations had occurred and granted summary judgment. The Board found that the Union-Bulletin did not allege newly discovered or previously unavailable evidence or circumstances. All issues raised by the Union-Bulletin were or could have been litigated in the prior representation proceeding. The Union-Bulletin promptly sought review in this court.

STANDARD OF REVIEW

The NLRB is empowered to determine the composition of an appropriate bargaining unit. 29 U.S.C. § 159(b). The Board is given broad discretion in determining the appropriate unit and, unless clearly arbitrary, the Board's legal conclusion should be affirmed. NLRB v. Big Three Industries, Inc., 602 F.2d 898, 901 (9th Cir. 1979); Beck Corp. v. NLRB, 590 F.2d 290, 292 (9th Cir. 1978); Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1037 (9th Cir. 1978).

The question whether particular employees are supervisory or managerial and therefore excluded from the bargaining unit is one part of the Board's determination of the unit composition. NLRB v. Adrian Belt Co., 578 F.2d 1304, 1311 (9th Cir. 1978). The Board's determination as to any one particular personnel position is one of fact. Laborers and Hod Carriers Local No. 341 v. NLRB, 564 F.2d 834, 838 (9th Cir. 1977). The Board's findings of fact are conclusive if supported by substantial evidence in the record viewed as a whole. Big Three Industries, supra at 901.

The Union-Bulletin challenged the Board's determination that each of the four contested editors was includable in the unit. The standard of review we apply in this case is whether the Board's determination in each instance is supported by substantial evidence on the record considered as a whole. This court has held that the Board's decisions in this area should be accorded a large measure of deference. E. g., Arizona Public Service Company v. NLRB, 453 F.2d 228, 230 (9th Cir. 1971). Nevertheless, the Board's findings are subject to judicial review.

ISSUES

1. Did the NLRB err in determining that the editorial page editor was not a managerial employee who should be excluded from the bargaining unit?

2. Did the NLRB err in determining that the photo, sports, and wire editors were not supervisory employees who should be excluded from the bargaining unit?

3. Did the employer violate sections 8(a)(5) and (1) by refusing to bargain until the status of the editors were clarified by this court?

DISCUSSION

I. Managerial Employees

The Board determined and the parties agree that Carroll Clark, the editorial page editor, exercises no supervisory authority. The Union-Bulletin argues, however, that Clark is a managerial employee and should have been excluded from the bargaining unit.

In contrast to "supervisory" employees who are defined by the Act and excluded (in part) from its coverage, "managerial" employees are not defined nor expressly excluded. Nevertheless, managerial employees have been judicially excluded from the Act's coverage. See NLRB v. Yeshiva University, 444 U.S. 672, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980); NLRB v. Bell Aerospace, 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). Our task is to determine if the Board properly found that Clark was not a managerial employee.

Managerial employees "forumulate and effectuate management policies by expressing and making operative the decisions of their employer." Yeshiva, 444 U.S. at 682, 100 S.Ct. at 862, quoting Bell Aerospace. The specific job title of the employee is not controlling. We must examine the employee's actual job responsibility, authority, and relationship to management. An employee who exercises discretion within or even independently of established employer Clark's primary duty is to write editorials and edit other articles appearing in the editorial page. Clark also has responsibility for selecting syndicated columns and editorial cartoons. He attends meetings with other members of an editorial board that approves, by majority vote, editorial topics. Clark's vote carries the same weight as other members of the Board, all of whom are management representatives. Nevertheless, the Union-Bulletin argues that Clark plays a dominant role in these editorial board meetings.

policy may be aligned with management. Yeshiva, 444 U.S. at 683, 100 S.Ct. at 863. The Board has established no firm criteria for determining when a employee is so aligned with management. Normally an employee may be excluded as managerial "only if he represents management interests by taking or recommending discretionary actions that effectively control or implement employer policy." Yeshiva, 444 U.S. at 683, 100 S.Ct. at 862-863 (footnote omitted).

We hold that substantial evidence in the record viewed as a whole does not support the Board's conclusion that Clark was not a managerial employee. He exercises independent discretion and formulates policy independent of his employer. His responsibilities place him in a position of potential conflict of interest between the employer and the union. In such a situation, the employer is properly classified in management. E. g., Illinois State Journal-Register, Inc. v. NLRB, 412 F.2d 37, 41 (7th Cir. 1969).

II. Supervisory Employees

Supervisory employees are specifically defined by the Act and excluded in part from its coverage. ¹ "Supervisor" is defined in 29 U.S.C. § 152(11):

The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The list of functions in section 152(11) is to be read in the disjunctive. The existence of any one of the powers, regardless of the frequency of its exercise, is sufficient to confer supervisory status upon an employee. NLRB v. St. Francis Hospital of Lynwood, 601 F.2d 404, 420 (9th Cir. 1979). The "independent judgment" requirement, however, is interpreted to be conjunctive. Laborers and Hod Carriers Local No. 341 v. NLRB, 564 F.2d 834, 837 (9th Cir. 1977). Thus the exercise or existence of any one of the enumerated powers combined with "independent judgment" is enough to make one a supervisor. E. g., NLRB v. Harmon Industries, Inc., 565 F.2d 1047, 1049 (8th Cir. 1977); NLRB v. Gray Lines Tours, Inc., 461 F.2d 763, 764 (9th Cir. 1972). Of course, the existence or exercise of...