Los Angeles Express, Inc.

LOS ANGELES EXPRESS, INC. Los Angeles Express, Inc. and Communications Workers of America, Local 11502, AFL-CIO Petitioner. Case 21-RC-14775 October 19, 1977 DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered determinative chal- lenges in an election held on November 5, 1976,1 and a Hearing Officer's report recommending disposition of same. The Board has reviewed the record in light of the exceptions and brief and hereby adopts the Hearing Officer's findings and recommendations 2 only to the extent consistent herewith. The parties stipulated, and we agree, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All reporters, photographers, teletype opera- tors, and translators involved in the production activities and writing and/or reporting of news stories and events at the Employer's facility located at 120 West Second Street, Los Angeles, California; excluding all other employees, adver- tising salesmen, accountants, secretaries, profes- sional employees, guards, and supervisors as defined in the Act. The ballots of Rosie Montes and Belarmina Hernandez were challenged by the Petitioner on the grounds that they were excluded from the unit agreed appropriate by both parties. The record reveals, and the Hearing Officer found, that both Hernandez and Montes are employed as translators of advertisements. Thus, Hernandez' job description is "ad coordinator/translator," and her main duties consist of translating display advertisements from English into Spanish for publication in the Employ- er's daily Spanish-printed newspaper.3 Similarly, Montes' job consists of translating classified ads I The election was conducted pursuant to a Stipulation for Certification Upon Consent Election. The tally was: five for, and two against, the Petitioner; there were four challenged ballots, a sufficient number to affect the results. The Regional Director investigated the challenged ballots and, on January 10, 1977, issued his Report on Challenged Ballots in which he recommended that the challenge to the ballot of Rafael Rosales be overruled, and that a heanng be held to determine the eligibility of Belarmina Hernandez, Rosie Montes, and Gerardo Lopez. No exceptions were filed to the Regional Director's report and, on February 2, 1977, the 233 NLRB No. 7 from English to Spanish for publication in the same newspaper. Although the stipulated unit, on its face, includes "translators involved in the production activities" at the Employer's facility, the Hearing Officer conclud- ed that the advertising translators were, by the terms of the stipulation, excluded from the unit. In accordance with The Tribune Company, 190 NLRB 398 (1971), he sought to ascertain the intent of the parties with regard to the disputed category, and then whether that intent was consistent with established Board policy. In the absence of any persuasive extrinsic evidence, he determined intent from the language of the stipulation itself. He concluded that the parties intended to include those translators who were "involved in the production activities" related to "news stories and events." Thus, under his interpretation, only the translators of the newspaper articles were included in the stipulation. He then concluded that the unit, with the exclusion of the advertising translators, was not contrary to Board policy, as the Board in the past has approved units which do not include all nonmechanical employees. In its exceptions, the Employer alleges that the Hearing Officer erred in concluding that the advertis- ing translators, Hernandez and Montes, were not included within the parties' stipulation. Thus, it argues that the stipulation includes on its face all translators involved in the Employer's production activities. Since advertising is undoubtedly a part of the newspaper production process, the Employer maintains that the advertising translators are includ- ed and that challenges to their ballots should be overruled. We agree with the Employer's contention. As stated, the parties stipulated that the following unit is appropriate: All reporters, photographers, teletype opera- tors, and translators involved in the production activities and writing and/or reporting of news stories and events at the Employer's facility .... " [Emphasis supplied.] It is undisputed that Hernandez and Montes are translators of advertisements. It is also undisputed that the preparation of advertisements for publica- tion in the Employer's newspaper constitutes work that is "involved in the [Employer's] production Board issued its order adopting the foregoing recommendations. Thereafter, pursuant to due notice, a hearing was held on March 9. 10, and 11, 1977, before Roberto G. Chavarry. a duly designated Hearing Officer of the National Labor Relations Board. The Hearing Officer issued his Report and Recommendations on May 20, 1977. 2 In the absence of exceptions thereto, we adopt, pro forma the Hearing Officer's recommendation that the ballot of Gerardo Lopez be overruled. 3 There is evidence that prior to the election Hernandez also assisted as a teletype operator. It appears, however, that as of the time of the election she worked on the teletype machine only "occasionally." 63 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities." Therefore, it is perfectly clear that the phrase "translators involved in the production activities" was intended by the parties to include translators of advertisements. Had the parties intend- ed otherwise, they would have so stated or, at least, would have abstained from using the words "produc- tion activities and" so that the stipulation would read, in part, "translators involved in the writing and/or reporting of news stories." The Hearing Officer's interpretation of the unit stipulation, which our dissenting colleague adopts, alters the clear and unambiguous language of the stipulation by substituting his words "related to" for the parties' second "and" within the stipulation. Our dissenting colleague agrees with this substitution and concludes that the parties intended to include in the unit only the translators whose duties relate to the production of news stories and events; i.e., the news story translators. We find absolutely no basis in logic or grammatical or legal conduct for this distortion of the parties' clear stipulation. Having found that the translators of advertising are included within the stipulated unit, we hereby overrule the challenge to the ballots of Belarmina Hernandez and Rosie Montes. DIRECTION It is hereby directed that the Regional Director for Region 21 shall, within 10 days from this date of this Decision, open and count the ballots of Rafael Rosales, Gerardo Lopez, Belarmina Hernandez, and Rosie Montes, the challenges to which have been overruled, and thereafter prepare and cause to be served on the parties a revised tally of ballots, including therein the count of said ballots. Upon the basis of the revised tally, the Regional Director shall issue the appropriate certification in accordance with the Board's Rules and Regulations Series 8, as amended. CHAIRMAN FANNING, dissenting: Contrary to my colleagues, I would adopt the recommendation of the Hearing Officer and sustain the challenges to the ballots cast by Hernandez and Montes. I would, therefore, issue a certification of representative to the Communications Workers of America, Local 11502, AFL-CIO. It is well established that, when the parties have stipulated to a particular bargaining unit, the Board will give effect to the stipulation so long as it is not contrary to an express statutory provision or to a recognized Board policy.4 We do so even in situations in which the stipulated unit is at variance 4 Otis Hospital, Inc., 219 NLRB 164, 166 (1975); The Tribune Company, supra. ' Ibid. Approval of such a stipulation is, of course, consistent with our with the unit we might have approved had we considered the issue in the first instance. Our motive is to encourage the parties to voluntarily agree in order to assure a speedy resolution of the question concerning representation.5 To the extent possible, we adhere strictly to the terms of the stipulation without substituting our judgment for that of the parties as to which categories of employees should be included.6 In the instant case, the parties stipulated to the following unit: All reporters, photographers, teletype opera- tors, and translators involved in the production activities and writing and/or reporting of news stories and events at the Employer's facility located at 120 West Second Street, Los Angeles, California; excluding all other employees, adver- tising salesmen, accountants, secretaries, profes- sional employees, guards, and supervisors as defined in the Act. This case is before us because the parties now disagree as to whether the stipulation was meant to include translators of advertisements. In my judg- ment, the answer to this dispute lies in the stipulation itself. The stipulation first lists the specific categories of employees to be included in the unit. The second part of the stipulation provides that all categories of employees which are not specifically listed are excluded. Thus, if the advertising translators are not specifically listed then it follows- by the terms of the stipulation itself-that they are excluded. I agree with the Hearing Officer that the first part of the stipulation does not include advertising translators. It seems evident that the parties intended to create a newsroom unit. They were very specific with respect to both the classifications and job functions of unit employees. With respect to classifi- cations, the parties limited the unit to reporters, photographers, teletype operators, and translators. With respect to job functions, the parties sought to encompass only individuals who were involved in production activities, writing, "and/or reporting of news stories and events. " [Emphasis supplied.] It is the last phrase, of course, which characterizes the unit as a newsroom unit. While the advertising translators may arguably satisfy the classification criterion, there is clearly no basis for arguing that their job functions are included within the unit description. In reversing the Hearing Officer, my colleagues have isolated the phrase "production activities" and have viewed it in a vaccum separate and apart from mandate under Sec. 9(b) to determine an appropriate unit since more than one unit may be appropriate. 6 White Cloud Products, Inc., 214 NLRB 516, 517 (1974). 64 LOS ANGELES EXPRESS, INC. the balance of the unit description, By so doing, they have simply rewritten the stipulation of the parties.7 I would not do so. Rather, since the stipulated unit 7 My colleagues contend that the effect of my interpretation of the stipulation is to substitute the words "related to" for the second "and" in the unit description. While my colleagues undoubtedly have the privilege of characterizing my position in any manner they choose, their understanding of my position is most certainly not in accord with my understanding of my position. does not contravene any express statutory or Board- established policy, I would give effect to the stipulation as it was written by the parties.8 a See, e.g., Home News Publishing Co., 109 NLRB 833, 834 (1954); The Dailv Press, Incorporate& 112 NLRB 1434 (1955); and White Cloud Products, supra at 517. 65