Oakland Press Co., The, a Subsidiary of Capital Cities Communication, Inc.

THE OAKLAND PRESS CO. The Oakland Press Co., a Subsidiary of Capital Cities Communications, Inc. and Local 372, In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 7-CA-13059 February 7, 1983 SECOND SUPPLEMENTAL DECISION BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On May 6, 1977, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding.' The Board then adopted, inter alia, the Administrative Law Judge's finding that the carriers are not employees and that there- fore the circulation department district managers directing them are not statutory supervisors but are employees with whom Respondent refused to bar- gain in violation of Section 8(a)(5) of the National Labor Relations Act, as amended. Thereafter, Respondent petitioned the United States Court of Appeals for the Sixth Circuit to review and set aside the Board's Order, and the Board filed a cross-application for enforcement of its Order. On October 4, 1979, the court issued its opinion wherein it, inter alia, remanded to the Board the issue of the carriers' employee status.2 The Board accepted the remand and invited the parties to submit statements of position with re- spect to the issues raised by the remand. The Gen- eral Counsel, Respondent, and the Union there- upon filed such statements with the Board. On June 6, 1980, the Board issued a Supplemen- tal Decision and Order in which it found that the carriers are employees within the meaning of the Act and the district managers are supervisors within the meaning of the Act.3 On June 25, 1980, the Union filed with the Board a motion for re- hearing en banc, and on July 28, 1980, the Board denied said motion. Thereafter, the Union filed a petition for review in the United States Court of Appeals for the Dis- trict of Columbia Circuit. Respondent and the Board then filed motions seeking discretionary transfer to the United States Court of Appeals for the Sixth Circuit and said motions were granted per curiam on November 28, 1980. On June 29, 1982, the court issued its opinion 4 wherein it found that "there is no question but that the . . . fact-finding" of the Board in its Supple- mental Decision as to the employee status of the carriers "does have substantial support." However, i 229 NLRB 476. 606 F.2d 689. 3 249 NLRB 1081. '4 682 F.2d 116, 118. 266 NLRB No. 26 in view of the Union's argument "that [Respond- ent] should be equitably estopped from asserting a position completely inconsistent with its past con- duct and representations," the court remanded the case to the Board for "the limited purpose of deter- mination of the equitable estoppel issue." The Board accepted the remand and invited the parties to submit statements of position with respect to the issue raised by the remand. Respondent filed such a statement with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board accepts the court's opinion as the law in the case, and accordingly has reviewed its Sup- plemental Decision in light of the court's opinion and Respondent's statement of position. For the reasons set forth below, we conclude that equitable estoppel does not lie in this case and that, in any event, the requisites for application of the doctrine of equitable estoppel are not present herein. The record shows that the Union filed on Febru- ary 24, 1970, a petition with the Board seeking cer- tification as a representative of the district manag- ers. Thereafter, Respondent and the Union execut- ed a consent election agreement stating that the carriers were nonemployees and that the district managers who directed them were accordingly not supervisors within the meaning of the Act. Howev- er, a Regional Director of the Board refused to ap- prove the consent election agreement and submit- ted the issue of the status of the carriers to the Board. Before that issue was decided by the Board, the Union withdrew its petition and requested the Michigan Employment Relations Commission to conduct an election that was won by the Union which was thereupon certified by the Commission as the bargaining representative of the district man- agers. Thereafter, said unit was covered by two successive collective-bargaining agreements, the second of which expired in May 1976 when Re- spondent withdrew its recognition of the Union and refused to bargain with it on the ground that the carriers were employees as defined in the Act and that the district managers who directed them were supervisors within the meaning of the Act. As indicated above, the Board accepted the first remand of the court and agreed with Respondent's position. We now turn to the issue of equitable estoppel pursuant to the second remand of the court. "It is well established that one who claims under the doctrine of equitable estoppel must show (I) lack of knowledge and the means to obtain knowledge of the true facts; (2) good faith reliance upon the 107 DECISIONS OF NATIONAL LABOR RELATIONS BOARD misleading conduct of the party to be estopped; and (3) detriment or prejudice from such reli- ance."5 However, the Board has in a number of cases held that it is obliged to give paramount considera- tion to the provisions of the Act regardless of earli- er positions taken by any party. Thus, the Board has consistently found that a preelection agreement wherein, as here, an employer stipulates that cer- tain individuals are not supervisors within the meaning of the Act does not estop the employer from subsequently contesting their status because unit inclusion of individuals who are shown to be statutory supervisors would without question con- travene the Act.6 The Board has also held that it will not recog- nize the validity of state-conducted elections and certifications where, as here, the composition of the unit is at variance with the policies enunciated by Congress in the Act.7 The Board further em- phasized its obligation to comply with the statutory exclusion of supervisors when it held that even where, as here, certain individuals have for some time been covered by collective-bargaining agree- ments, it is compelled subsequently to exclude them from the appropriate unit if it can be shown that they meet the test for a Board finding that they are supervisors as defined in the Act.8 It is clear from the foregoing Board Decisions that the parties' stipulated unit, the certification of said unit by the State of Michigan, and collective- bargaining agreements for that unit cannot prevail N.LR.B. v. J.D. Industrial Insulation Company. Inc., 615 F.2d 1289, 1294 (10th Cir. 1980). e Esten Dyeing & Finishing Co.. Inc., 219 NLRB 286 (1975); Fisher-New Center Co., 184 NLRB 809 (1970). 7 Mental Health Center of Boulder County, Inc., 222 NLRB 901 (1976). 8 Washington Post Company, 254 NLRB 168 (1981). under these circumstances. Accordingly, we find that the principle of equitable estoppel is not appli- cable in the instant case. However, assuming arguendo that equitable es- toppel may be applied herein, we find that this case does not meet the essential criteria thereof. As indicated above, the Regional Director in 1970 refused to approve the stipulated unit of dis- trict managers and hence referred the question of its propriety to the Board. The Union, which was therefore fully aware of that outstanding legal issue, nevertheless withdrew its petition without waiting for its resolution by the Board. The Union and Respondent, which then sought and secured a certification of said unit by a state tribunal, pro- ceeded to bargain for that unit. As a result, the Union and its members benefited from Respond- ent's willingness, despite the lack of Board approv- al or certification, to enter into and until May 1976 abide by collective-bargaining agreements which covered the district managers. Insofar as the subse- quent loss of continued recognition by Respondent constituted a detriment to the Union, it was not at- tributable to any misleading conduct on the part of Respondent. Accordingly, we conclude that in cir- cumstances of this case there is no basis for equita- ble estoppel. As stated above, the court does not question the Board's finding that the carriers are employees within the meaning of the Act and that the district managers are statutory supervisors. As we have found that equitable estoppel does not lie in this case and that, in any event, the requisites for equi- table estoppel have not been met, we hereby affirm the Order set forth in the Supplemental Decision of June 6, 1980. 108