Drukker Communications, Inc.

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drukker Communications , Inc. and its wholly owned subsidiary The Daily Advance, Inc. and Newark Mailers' Union Local 11, a/w International Ty- pographical Union, AFL-CIO. Case 22-CA- 7413 13 November 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 30 September 1981 the National Labor Rela- tions Board issued a Decision and Order in this proceeding, finding that the Respondent had en- gaged in certain violations of Section 8(a)(5) and (1) of the Act.' The Respondent subsequently filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit, and the Board filed a cross-application for enforce- ment of its Order. On 25 February 1983 the court issued an opinion remanding the case to the Board for further proceedings,2 and on 1 February 1984 the Board ordered that the proceeding be reopened and that a hearing be held before an administrative law judge. A hearing was conducted on 30 April 1984 before Administrative Law Judge Julius Cohn, and on 28 September 1984 Judge Cohn issued the attached supplemental decision. The Re- spondent subsequently filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Respondent owns and publishes a daily newspaper and operates facilities in Dover and Roxbury, New Jersey.3 Pursuant to a Stipulation for Certification Upon Consent Election, an elec- tion was conducted in the following unit on 21 July 1974: All circulation department employees, includ- ing drivers, mail clerks, mailroom helpers and district advisors, but excluding all office cleri- cal employees, professional employees, guards and supervisors as defined in the Act. The tally was 10 votes for and 12 against the Union, with 6 determinative challenges. After a hearing the Board determined that five challenged "motor route carriers," who delivered newspapers to remote areas, were eligible employees rather 1 258 NLRB 734 (1981) 2 Drukker Communications v. NLRB, 700 F.2d 727 (D.C. Cir 1983) 3 The Respondent opened its Roxbury facility in April 1975, after the election in this proceeding than independent contractors.4 A revised tally showed 15 votes for and 12 against the Union, and the Board certified the Union on 7 September 1976.5 In its original Decision and Order, the Board found that the Respondent violated Section 8(a)(5) and (1) by refusing to bargain with the Union and by implementing certain unilateral changes. The Board found that the Respondent acted unlawfully by unilaterally replacing its motor route carriers with individuals termed "delivery contract hold- ers," by unilaterally replacing its other drivers with individuals termed "hauling contract holders," and by unilaterally replacing its part-time district advi- sors with full-time "district sales representatives." The Board also concluded that the Respondent violated the Act by unilaterally reducing the unit work of the mail clerk, by negotiating individually with delivery contract holders and hauling contract holders over the extra work and compensation de- rived from Sunday deliveries, and by negotiating individually with hauling contract holders concern- ing increased weekly payments. The amended com- plaint also alleged that the Respondent unlawfully relocated the mailroom portion of its circulation department from Dover to Roxbury, but the Board concluded that Section 10(b) barred that allegation. Contrary to the Respondent's contention, the Board found that the above changes had not ren- dered the unit inappropriate. The Board concluded that the delivery contract holders and hauling con- tract holders were employees rather than independ- ent contractors and found that the district sales representatives were properly included in the unit. The Board also found that the mail clerk remained a unit employee and that the mailroom helpers also remained unit employees even though the number of helpers substantially increased after the Re- spondent moved its mailroom from Dover to Rox- bury. In agreement with Administrative Law Judge Herzel H. E. Plaine, the Board rejected the Re- spondent's contention that the parties had orally agreed to exclude the motor route carriers from the unit at an informal conference leading to the stipulation. In this connection, the Board did not disturb Judge Plaine's denial of the Respondent's request to enforce a subpoena compelling the testi- mony of George Abrams, the Board agent who presided over the conference. As noted above, the District of Columbia Circuit remanded the case to the Board for further pro- 4 The Board sustained the challenge to the sixth ballot 5 When the Union was certified, the words "at the Employer's Dover, New Jersey facility" were added to the unit description after the words "district advisors " 277 NLRB No. 32 DRUKKIER COMMUNICATIONS ceedings . The remand was based primarily on the Board's refusal to compel Abrams to testify con- cerning the alleged oral agreement to exclude the motor route carriers. The court stated that the tes- timony "should have been required" in view of the "distinctive" circumstances of this case.6 The court noted, inter alia, that Abrams ' testimony would have involved a "central" issue which might affect the outcome of the election, that he would not have testified about the agency's internal delibera- tions, and that the issue did not involve a "fishing expedition." 7 The court further noted that the Re- spondent's argument that an agreement was reached was "highly plausible," that Abrams' neu- tral position would have lent "unique value" to his testimony, and that the testimony sought from Abrams concerned information which he intended to acquire at the conference. " The court set aside the Board's decision , noting that Abrams' testimo- ny "alone" required a remand.9 The court also considered the other issues in the case to avoid "a repetitive appeal." 10 In the court's view, Section 10(b) of the Act precluded the Board from finding that the Respondent acted unlawfully by unilaterally replacing its motor route carriers with delivery contract holders and its drivers with hauling contract holders.' I The court also set aside the Board's finding that the Respondent's "district advisors" were employees, 12 and it concluded that Drukker Communications, Inc. was not jointly liable with The Daily Advance, Inc.13 In view of the court's conclusions, we shall make appropriate modifications to our Order. The court upheld the Board's finding that the bargaining unit was not rendered inappropriate by the movement of the mailroom from Dover to Roxbury.' 4 Although the court did not set aside the Board's finding that the delivery contract hold- ers were employees, it instructed the Board to re., consider this issue in light of its more recent deci- sion in Fort Wayne Newspapers, 263 NLRB 854 (1982).15 ° 700 1F.2d at 731. Id at 731-732 Id. at 732-733. The court also observed that "the concurrence of fac- tors as strong as those" favoring Abrams' testimony in this case "will seldom occur." Id. at 734. Id at 734 10 Id at 734. ' Id at 734-745 12 Id at 736. The court's finding in this connection would also require a finding that the Respondent did not violate the Act by unilaterally re- placing its district advisors with district sales representatives. We have modified our Order accordingly. ' 3 Id at 735-736 14 Id at 737 15 Id. at 736-737. 419 The Board accepts the court's opinion as the law of the case. We have considered this proceeding in light of our original Decision and Order, the court's opinion, Judge Cohn's attached supplemen- tal decision, the Respondent's exceptions and sup- porting brief, and the entire record. We have re- vised our previous Decision and Order in the manner set forth below. 1. As noted above, the Board in its original deci- sion adopted Judge Plaine's finding that the parties did not agree to exclude the motor route carriers from the unit at the informal conference on 28 May 1974. Pursuant to the court's instructions, the Board ordered that a hearing be held to allow the testimony of Board agent Abrams, who presided over the conference. To ensure a complete record, the Board's Order permitted the parties to elicit the testimony of other individuals present at the con- ference. Abrams and the Union's attorney, Parson- net, testified at the remand hearing.' 6 In his sup- plemental decision Judge Cohn found, inter alia, that Abrams was unable to state affirmatively that the parties had reached an oral agreement, and he recommended that the Board adhere to its original determination. In its exceptions the Respondent, contends that Judge Cohn failed to consider evidence adduced at the original hearing, and that he improperly "sum- marized" the testimony of Abrams and Parsonnet. Relying on Banner Bedding, Inc., 214 NLRB 1013 (1974), the Respondent renews its argument that the parties reached an oral agreement which ren- dered the motor route carriers ineligible to vote in the election. We have reviewed the entire record, and we agree with Judge Cohn that the Respond- ent has not established that the parties orally agreed to exclude the motor route carriers, even if we assume, arguendo, that Banner Bedding is appli- cable in these circumstances. 17 16 No other witnesses were called 17 In Banner Bedding, the Board reaffirmed the pi inciple that eligibility agreements must be written, signed, and express 214 NLRB at 1013, citing Norris-Thermador Corp, 119 NLRB 1301 (1958). However, the Board carved out a "narrow exception" based on the particular facts of the case The parties had orally agreed in the presence of a Board agent that one named employee would not be eligible to vote The employee then cast a challenged ballot, and the Board sustained the challenge. The Board emphasized that both parties acknowledged that they had made the oral agreement and that they would not have signed the consent-elec- tion stipulation in the absence of the oral agreement The Board conclud- ed that in those specific circumstances it would be "improper and inequi- table" not to regard the oral agreement as final and binding. The Board also concluded that it would continue to apply the rule of Norris-Therma- dor "where there is any dispute whatsoever" whether an agreement had been made. In this case, the Union has never acknowledged that an oral agreement had been reached to exclude the motor route carriers However, we need not decide here whether the Banner Bedding exception is applicable where the parties do not acknowledge that an oral agreement was reached and where such an agreement is established, for example, by Continued 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abrams testified that his recollection of the con- ference was "somewhat hazy," and he repeatedly indicated that he was testifying "to the best of [his] recollection" or "to the best of [his] limited recol- lection.""' He recalled that during the conference he was required to do research on the eligibility of either the motor route carriers or the youngster carriers, but he could not specifically recall which group had been at issue in his research.19 At one point, he testified that he "believe[d]," but was "not certain," that the motor route carriers had been the subject of his research. 2 ° According to Abrams, he concluded from his research that the group at issue should be excluded, and he stated to the best of his recollection that the parties had then agreed to exclude that group, "whatever it was." To the best of his "limited recollection," Abrams also testified that he "believe[d]," but could not state with "absolute certainty," that the parties had discussed whether the motor route carriers were employees or independent contractors.2I He fur- ther stated his belief that the parties would have discussed whether the motor route carriers shared a community of interest with other employees. Parsonnet testified that the parties had agreed to exclude the youngster carriers, or "newspaper de- livery boys." According to Parsonnet, Abrams did credited testimony Even if we assume, arguendo, that an oral agreement may be established by evidence other than the admissions of both parties, we conclude for the reasons stated herein that the record does not estab- lish an agreement to exclude motor route carriers. i3 The Respondent contends that the judge erred by refusing to permit Abrams to examine a document in order to refresh his recollection The document was a letter from Hamburger to the Regional Director for Region 22, dated 26 June 1974. The letter sets forth the Respondent's po- sition that at the informal conference the parties "agreed that the so called Motor Route Drivers were independent contractors who were not employees within the meaning of the Act " The letter states that the "Motor Route Drivers" were not included on the Excelsior list, and as- serts that the parties agreed that all independent contractors should be excluded It is widely recognized that any writing or other object may be used to refresh a witness' recollection. 3 Wigmore, Evidence § 758 (Chadbourn rev 1970); McCormick, Evidence § 9 at 16-17 (2d ed 1972); United States v Baratta, 397 F 2d 215, 222 (2d Cir 1968). See also Spartan Plastics, 269 NLRB 546 fn. 2 (1984), J. H Rutter-Rex Mfg Co., 206 NLRB 656 (1973) However, the authorities also recognize that a judge may exercise discre- tion in applying this general rule and may decline to permit the use of the aid to recollection where, for example, "the danger of undue suggestion" outweighs the probable value. McCormick, supra, § 9 at 17. See also 3 Wigmore, supra § 765; Fed R.Evid 611(a), United States v. Baratta, supra at 222 Whether it is proper to use any given document will depend on the circumstances 3 Wigmore , supra § 758 In this case the Respondent's lawyer sought to use a document which he himself had prepared and which merely set forth the Respondent 's position concerning the alleged agreement, which position was already well known to all the parties. We see no reason to disturb the judge's decision in the exercise of his discre- tion not to permit Abrams to examine'the document 1s Both groups "may" have been discussed, according to Abrams, but his research focused on only one of the groups 2° Abrams also testified that his belief that he had researched the motor route earners was "theoretical." 21 According to Abrams' "limited recollection," the Respondent con- tended that the motor route carriers were independent contractors, but he had no recollection of what the Respondent had said concerning their status. some research to determine whether the youngster carriers could be excluded by agreement of the parties. He did not recall whether Abrams had re- searched the issue of the eligibility of the motor route carriers. He testified that he did not recall the use of the term "motor, route carrier" at the conference and stated that "as far as we knew, they were all drivers." In the original hearing, Parsonnet testified that there had been no discussion of motor route carri- ers and that he had never agreed to their exclusion. The Respondent's attorney, Hamburger, testified that he had asserted that the motor route carriers were independent contractors and that Parsonnet responded, "In that case, we are not interested in them." Judge Plaine did not credit Hamburger's testimony, and he found that "[o]n the question of credibility, there is good reason to believe Parson- net that there was no such oral agreement."22 The Board adopted Judge Plaine's findings, and we find that the evidence presented at the remand hearing provides no basis for disturbing his credibility reso- lutions.23 We note especially that Abrams could not testify with certainty that the parties orally agreed to exclude the motor route carriers. We also note that Parsonnet testified that there had been an agreement to exclude the youngster carri- ers-a statement consistent with Abrams' recollec- tion that the parties may have agreed to exclude the youngster carriers. In view of the above, we adhere to our previous finding that the parties did not reach an oral agreement to exclude the motor route carriers from the unit.24 22 258 NLRB at 742. 23 In making his credibility determination in the original proceeding, Judge Plaine found it unlikely that Parsonnet "brushed away what was then one-third of the Union's supporters with a 'we are not interested in them' response ... Id at 742. The court questioned this portion of the rationale, 700 F 2d at 732, and we do not rely on it in reaffirming our findings. 24 Relying on Buckley Southland Oil, 210 NLRB 1060 (1974), the Re- spondent also contends that the parties did not reach a "meeting of the minds" concerning the eligibility of the motor route carriers, even if there were no specific agreement to exclude them In Buckley, the unit included all permanent servicemen, drivers, and mechanics, and the bal- lots of eight permanent seasonal drivers were challenged at the election. The employer contended that before signing the stipulation the parties had agreed that all seasonal employees would be excluded, while the union stated that its understanding had been that all permanent seasonal drivers would be included. The Board stated that in stipulated election cases its function was to ascertain the parties' intent, and found on the special facts of that case that it could not ascertain the parties" intent be- cause they had not reached a "meeting of the minds" as to the composi- tion of the unit The Board noted the parties' different interpretation of the stipulation, and it noted their separate agreement that if a named sea- sonal employee attempted to vote, his ballot would have been challenged and would not have been counted "pending post election procedures." 210 NLRB at 1061 The Board cited the latter agreement as evidence that the parties had not been under the same impression of the status of their stipulation, and the Board voided the election. Continued DRUKKIER COMMUNICATIONS 421 2. As noted above, the court also directed the Board to reconsider the issue of whether the Re- spondent's delivery contract holders are employees or independent contractors. We have carefully re- viewed this issue in light of Fort Wayne Newspa- pers, 263 NLRB 854 (1982), and Thomson Newspa- pers, 273 NLRB 350 (1984),25 and we conclude that the delivery contract holders are independent contractors. The record discloses that the Respondent has reached agreements with 113 delivery contract hold- ers to deliver individual newspapers and bundles of newspapers to subscribers in remote areas. The agreements are oral and terminable at will. The Re- spondent does not furnish vehicles for the deliv- eries, and it is the delivery contract holder's re- sponsibility to obtain a vehicle and pay for the ex- penses incurred in its use. The vehicles do not con- tain the Respondent's insignia, and the Respondent does not require the delivery contract holders to obtain insurance. A delivery contract holder communicates with the Respondent through the contract holder coor•. dinator, one of the Respondent's supervisors. The delivery contract holder may consult with the con- tract holder coordinator, but they do not meet on a regular basis. The Respondent does not require de- livery contract holders to submit reports concern- ing the time and mileage required to complete their deliveries. The delivery contract holder determines when and where to pick up the papers. Although most choose to make pickups at the Respondent's Rox- bury facility, the Respondent ordinarily permits pickups to be made at other locations requested by the delivery contract holders. The delivery con- tract holder also determines the order in which de- liveries will be made and the number of papers to We do not find on the record before us that the parties failed to reach a meeting of the minds We note that in the original proceeding the Board adopted Judge Plaine's finding that there was no credible basis for concluding that the unit as described in the preelection stipulation was subject to an oral understanding, or even misunderstanding, that a class of drivers was to be excluded from the unit. On the contrary, the written stipulation concerning the unit clearly embodied the intendment of the parties that the unit was to be a unit of all employees of the circulation department except the categories expressly eliminated . . . . [Emphasis added. 258 NLRB at 742.] Judge Flame therefore relied on his credibility resolutions to find that there was no "misunderstanding" concerning the motor route carriers, and that the parties' intent to include them was ascertainable . The Board adopted his findings and, in view of Abrams' limited recollection and Parsonnet's testimony, we find no evidence at the remand hearing to indi- cate that there had been a misunderstanding about the eligibility of the motor route tamers . Consequently, we cannot conclude that the parties failed to reach a meeting of minds. 25 The court instructed the Board to reconsider the issue in light of Fort Wayne, which issued after the Board's original decision in this pro- ceeding We find it consistent with the spirit of the court's opinion also to consider the issue in light of Thomson ?Newspapers, which issued after the court's opinion be contained in each bundle. If he does not wish to make the deliveries himself, he may hire assistants to perform the work without the Respondent's ap- proval.26 If a delivery contract holder is unable to make the deliveries on a given day, due to illness or another reason, it is his responsibility to obtain a replacement to perform the work. The Respondent will not obtain a replacement even if requested to do so by the delivery contract holder.27 A delivery contract holder may refuse to service a subscriber if, for example, the subscriber has failed to pay his bills, and delivery contract holders may decide to shift customers among themselves without the Respondent's approval. When the Re- spondent began issuing a new Sunday edition in March 1978, some delivery contract holders re- fused to agree to make the deliveries. Their refusal did not affect their status as delivery contract hold- ers, and the Respondent simply contracted with other individuals to make deliveries on Sundays. The Respondent does not withhold taxes for the delivery contract holders and does not provide them with any of the fringe benefits enjoyed by its employees. Delivery contract holders may hold other jobs, and they are free to deliver other news- papers or commodities in addition to the Respond- ent's newspapers. The Respondent's circulation di- rector, Van Dalen, testified that he was aware of two delivery contract holders who held other jobs, one of whom delivered another newspaper.28 The delivery contract holders purchase newspa- pers from the Respondent and resell them to sub- scribers. The Respondent negotiates the wholesale purchase price with each individual delivery con- tract holder, a price which varies from I to 12 cents for each 15-cent daily paper and from 1 to 19 cents for each 25-cent Sunday paper.29 Van Dalen testified that delivery contract holders may add to the subscription price a service charge for delivery expenses. The Respondent sets no limits on the amount of the service charge, and Van Dalen testi- fied that he was aware of two delivery contract holders who charged more than the subscription 26 The Respondent's circulation director , Van Darien, testified that he does not know who makes the actual deliveries, and he is aware of in- stances in which individuals other than the delivery contract holders have picked up the newspapers. 27 However, the Respondent would obtain a replacement where a de- livery contract holder suffers from an extended illness and refuses to obtain a replacement himself 28 Van Dalen testified that he did not know whether other delivery contract holders held other jobs. 29 The Respondent charges the delivery contract holder at least I cent for each newspaper. If it made no charge , it would not be able to claim those deliveries as paid circulation for the audit bureau of circulation Claiming deliveries as paid circulation assists the Respondent in attracting advertisers. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD price.30 He also noted that if the sole source of a delivery contract holder's profit were the differ- ence between the purchase and resale prices, some routes would be unprofitable even if the Respond- ent charged a purchase price of only 1 cent per copy. Consequently, the Respondent provides "most" delivery contract holders with a weekly sti- pend to ensure that their routes are profitable. 3 a Van Dalen indicated that "one or two" of the 13 delivery contract holders do not receive the sti- pend. The delivery contract holders bill customers on their own and may extend credit to customers if they choose to do so. The record also establishes that the Respondent does not accept returns of un- delivered newspapers. Consequently, a delivery contract holder absorbs the loss if he orders more newspapers than he needs. When deciding whether to contract for the serv- ices of a delivery contract holder, the Respondent seeks reasonable assurances that the individual is able to make the deliveries. The Respondent re- quires that the deliveries be made at an hour which is reasonable for the enjoyment of an evening newspaper. If the Respondent receives a customer complaint, it attaches a written form to the deliv- ery contract holder's bundle of newspapers, and subsequently the contract holder coordinator fol- lows up with the delivery contract holder to see whether the complaint has been resolved. The Re- spondent requests that delivery contract holders submit customer lists twice a year,32 but it takes no action if the lists are not submitted. When a deliv- ery contract holder terminates his agreement with the Respondent, he does not sell the Respondent a proprietary interest in his customer list. Delivery contract holders are encouraged to solicit new sub- scriptions, and Van Dalen testified that there is an "understanding" that delivery contract holders will accept new subscriptions. The Respondent also provides the delivery contract holders with bags to protect the newspapers in inclement weather. When a delivery contract holder seeks to termi- nate his agreement with the Respondent, it is his responsibility to find and train a replacement. If he does not do so, the Respondent's contract holder coordinator will attempt to find a new individual through newspaper advertising or other methods. 30 Van Dalen testified that he was unaware of how many others added a service charge At one point , he testified that it was "not uncommon" for delivery contract holders to add a service charge, but he later testi- fied that the addition of a service charge was a "common practice." 3i As an example, Van Dalen noted that one delivery contract holder delivers 30-35 papers at a charge to him of 1 cent per paper, and receives a weekly stipend of $27. The Respondent maintains a separate payroll for the stipends 32 At one point Van Dalen also testified that the Respondent "re- quires" the submission of these lists. If the contract holder coordinator is successful, he will train the new delivery contract holder by ac- companying him on his route for 2 or 3 days.33 As noted in both- Fort Wayne Newspapers, 263 NLRB 854 (1982), and Thomson Newspapers, supra, the Board applies the common law "right of con- trol" test in determining the status of individuals al- leged to be independent contractors. If the person for whom services are performed retains the right to control the manner and means by which the re- sults are to be accomplished, the person who per- forms the services is an employee. If the results alone are controlled, the person performing the services is an independent contractor. The Board's determination of an individual's status turns on the particular facts of each case. In Fort Wayne the employer published a newspa- per, and the distributors at issue were responsible for delivering papers to dealers and to coin-operat- ed newsracks. The Board's conclusion that the dis- tributors were independent contractors was based on circumstances also present in this case. Thus, the Board emphasized that the distributors could employ helpers and substitutes and make all deci- sions concerning the hiring, firing, and compensa- tion of those helpers and substitutes. The distribu- tors were free to hold other jobs, and their day-to- day performance was not regularly supervised. They were responsible for providing and maintain- ing their own vehicles, and the employer did not withhold taxes or provide the distributors with any of the benefits enjoyed by its employees. The dis- tributors also retained some opportunity for profit on the papers sold from newsracks. They pur- chased those papers from the employer, and the Board noted that their income, to a large extent, was based on the difference between the purchase price for the papers and the resale price plus oper- ating expenses.34 The Board's finding that the dis- tributors were independent contractors was not precluded by the fact that the employer, like the Respondent here, paid a weekly sum of money to the distributors in addition to the money they re- ceived from the newsracks. We also note that in this case there is evidence which suggests even more clearly than in Fort Wayne that a finding of independent contractor status is appropriate. In this case, the delivery con- tract holders purchase from the Respondent and resell to subscribers all of the newspapers they de- liver, and consequently their entire routes provide 33 Where a delivery contract holder finds his own replacement, how- ever, he will train that replacement. s4 The Board also noted that the distributors could maximize their profits by deciding how many papers to buy from the employer and how many papers to place in each rack DRUKKER COMMUNICATIONS 423 an opportunity for profit. In Fort Wayne, the dis- tributors purchased and resold only those papers which they delivered to the newsracks . The Board noted that the distributors had no opportunity to profit from the delivery of papers to dealers be- cause the distributors did not buy and sell those papers . Rather, the dealers made their payments di- rectly to the employer. In addition, the delivery contract holders may alter the price of the newspa- pers by adding a service charge to the subscription price. In Fort Wayne, the employer controlled the wholesale and retail prices of the papers sold from newsracks and, as noted above, the payments from dealers went directly to the employer without being handled by the distributors. The Board in Fort Wayne also observed that the employer minimized entrepreneurial risk by allow- ing the distributors to return unsold papers for credit. In this case, the Respondent does not accept returns of undelivered newspapers, and a delivery contract holder must absorb the loss if he orders more newspapers than he needs. We also note that the distributors in Fort Wayne displayed the em- ployer's insignia on their vehicles , while the deliv- ery contract holders do not do so. There are additional circumstances favoring a finding of independent contractor status in this case. If a subscriber has difficulty paying his bills, the delivery contract holder may either extend credit or refuse to provide further service. Deliv- ery contract holders may shift subscribers among themselves without the Respondent's approval. It is also the delivery contract holder's responsibility to obtain a replacement when unable to work, and the Respondent normally will not obtain a replacement even if requested to do so. The delivery contract holder also determines where to pick up the news- papers, and the Respondent ordinarily permits pickups to be made at the location preferred by the delivery contract holder. We recognize that there was evidence indicating independent contractor status in Fort Wayne which is not, present here. Thus, the employers and the distributors in Fort Wayne were parties to written contracts which referred to the distributors as "contractors" and which required the distributors to carry insurance and hold the employer harmless from liability. However, in view of the extensive si- miilarities and other evidence discussed above, we conclude that the absence of such evidence does not preclude a finding that the delivery contract holders are independent contractors. We also find that our conclusion is supported by Thomson Newspapers, supra. In that case, the 10 motor route drivers at issue delivered bundles of papers, placed papers in coin-operated newsracks, and made deliveries to individual subscribers. The Board found that the motor route drivers were in- dependent contractors based on several circum- stances also present in this case. The Board noted that the drivers provided their own delivery vehi- cles and were not required to display the employ- er's insignia. The drivers were free to hire full-time substitutes without the employer's approval, and they were required to obtain part-time substitutes if unable to make the deliveries on any given day. They were permitted to hold other jobs and make deliveries for clients other than the employer while on their routes. The motor route drivers deter- mined the order of delivery, and the employer did not supervise or monitor their daily performance. The employer did not withhold taxes or provide the drivers with any of the fringe benefits available to its employees, and the drivers were not required to maintain any records for the employer. The contrasts between this case and Thomson Newspapers also suggest that the delivery contract holders are independent contractors . In Thomson Newspapers, the Board found that the drivers did not purchase the papers from the employer and therefore did not assume the entrepreneurial risk associated with trying to make a profit by reselling them. Rather, the drivers were paid a flat rate based on time, mileage, and the number of papers delivered. As noted above, the delivery contract holders purchase the papers from the Respondent, resell them to subscribers, and may add a service charge to the subscription price . Although the de- livery contract holders also receive a weekly sti- pend from the Respondent, we think it clear that their entrepreneurial risk is greater than that of the drivers in Thomson Newspapers . In contrast to driv- ers in that case, delivery contract holders may extend credit to customers , refuse to service cus- tomers, or shift customers among themselves with- out the Respondent's approval. As in Fort Wayne and Thomson Newspapers, we recognize that there are circumstances in this case which are more commonly found in employer-em- ployee relationships . Thus, the Respondent may terminate the agreements at will , and the delivery contract holders do not sell the Respondent a pro- prietary interest in their customer lists upon the termination of their agreements. The Respondent at least requests that the delivery contract holders submit customer lists twice a year, requires that de- liveries be made at a reasonable hour, and provides bags to protect the newspapers in inclement weath- er. The Respondent retains partial control over the compensation of the delivery contract holders by providing them with a weekly stipend to ensure that their routes are profitable . However, after re- 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considering this issue in light of Fort Wayne and Thomson Newspapers, we find that this evidence is outweighed by the evidence tending to establish that the delivery contract holders are independent contractors. Consequently, we shall exclude the de- livery contract holders from the unit.35 CONCLUSIONS OF LAW 1. The following employees constitute a unit ap- propriate for collective bargaining: All circulation department employees at the Employer's facilities in Dover and Roxbury, New Jersey, including drivers, mail clerks, and mailroom helpers, but excluding all district sales representatives, delivery contract holders, office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. 3 6 2. The Respondent, the Daily Advance, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Union, Newark Mailers' Union Local 11, a/w International Typographical Union, AFL- se We decide only that the delivery contract holders are independent contractors, and in our view we are not presented with the question of whether their predecessors, the motor route carriers , were employees or independent contractors . The Board has previously determined that the motor route carriers were employees, and the court neither disturbed this finding nor directed the Board to reconsider the issue . As we read its opinion, the court directed the Board to consider whether there was an oral agreement to exclude the motor route carriers, and to reconsider whether the delivery contract holders were employees or independent contractors Moreover, we note that the delivery contract holders and the motor route carriers performed their work in different circumstances Unlike the delivery contract holders, the motor route carriers were paid a rate pre- computed on the basis of time and mileage They did not purchase and resell the papers, and they were not able to add a service charge to the subscription price The motor route carriers, unlike the delivery contract holders, were also required to deliver the papers themselves and could not delegate that task to other individuals . The Respondent's district manager substituted for ill motor route carriers, but the delivery contract holder is responsible for obtaining his own temporary substitute. In most circumstances, the Respondent does not obtain a substitute even if re- quested to do so by the delivery contract holder The delivery contract holders bill customers on their own , but the Respondent billed customers serviced by the motor route carriers. 96 We have modified the unit description to reflect the court's finding that the district advisors, who were originally included, were supervisors. We have omitted the district advisors from the included classifications, and we have expressly excluded their successors, the district representa- tives, who perform the same tasks as the district advisors. We have also expressly excluded the delivery contract holders, but we have retained the term "drivers" among the included classifications because the Re- spondent's hauling contract holders are still within the unit In view of the partial transfer of the circulation department from Dover to Roxbury, we have also added the Roxbury facility to the unit description Under the circumstances, we also find that the above-described unit is appropriate-a finding we consider consistent with the court's opinion. We note that the court did not set aside the Board's bargaining order even though it found that the district advisors should not have been in- cluded in the unit The court also found that the movement of the mail- room portion of the circulation department from Dover to Roxbury did not render the bargaining unit inappropriate . In addition, the court did not indicate that the appropriateness of the bargaining unit was contin- gent on the result of the Board's reconsideration of the status of the de- livery contract holders CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. By refusing to bargain with the Union as the certified collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 5. By unilaterally reducing the unit work of the mail clerk, and by negotiating individually with hauling contract holders concerning increased weekly payments and the extra work and compen- sation involved with Sunday deliveries, the Re- spondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.3 7 REMEDY Having found that the Respondent has engaged in certain violations of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist and that it take certain affirmative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent, The Daily Advance, Inc., Dover and Roxbury, New Jersey, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing, on request, to bargain with the Union as the exclusive collective-bargaining repre- sentative of the employees in the following appro- priate unit, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment: All circulation department employees at our facilities in Dover and Roxbury, New Jersey, including drivers, mail clerks, and mailroom helpers, but excluding all district sales repre- sentatives, delivery contract holders, office clerical employees, professional employees, guards and supervisors as defined in the Na- tional Labor Relations Act. (b) Unilaterally reducing the unit work of the mail clerk, and negotiating individually with haul- ing contract holders concerning increased weekly payments and the extra work and compensation de- rived from Sunday deliveries. 37 We have modified our conclusions of law to reflect the court's con- clusions and our finding that the delivery contract holders are independ- ent contractors DRUKKER COMMUNICATIONS 425 (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- elusive collective-bargaining representative of the employees in the appropriate unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody any agree- ment reached in a written and signed contract. i(b) On request, bargain with the Union over the reduction of the unit work. of the mail clerk, and over the hauling contract holders' increased weekly payments and their extra work and com- pensation derived from Sunday deliveries. (c) Post at its facilities in Dover and Roxbury, New Jersey, copies of the attached notice marked "Appendix."38 Copies of the notice, on forms pro- vided by the Regional Director for Region 22, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are custom- arilly posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. All circulation department employees at our facilities in Dover and Roxbury, New Jersey, including drivers, mail clerks, and mailroom helpers, but excluding all district sales repre- sentatives, delivery contract holders„ office clerical employees, professional employees, guards and supervisors as defined in the Na- tional Labor Relations Act. WE WILL NOT unilaterally reduce the unit work of the mail clerk, and WE WILL NOT negotiate indi- vidually with hauling contract holders concerning increased weekly payments and the extra work and compensation derived from Sunday deliveries. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, on request, bargain with the above Union as the exclusive collective-bargaining; repre- sentative of the employees in the above unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and WE WILL embody any agreement reached in a written and signed contract. WE WILL, on request, bargain with the above Union over the reduction of the unit work of the mail clerk, and over the hauling contract holders' increased weekly payments and their extra work and compensation derived from Sunday deliveries. THE DAILY ADVANCE, INC. 38 If this Order is enforced by a Judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse, on request, to bargain with Newark Mailers' Union Local 11, a/w Internation- al Typographical Union, A]FL-CIO, as the exclu- sive collective-bargaining representative of the em- ployees in the following appropriate unit, with re- spect to rates of pay, wages, hours, and other terms and conditions of employment: Bernard S. Mintz, Esq., for the General Counsel. Henry I. Hamburger, Esq., of Leonia, New Jersey, for the Respondent. Victor J. Parsonnet, Esq. (Reitman, Parsonnet, Duggan & Pykin), of Newark, New Jersey, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge. On Septem- ber 30, 1981, the Board issued a Decision and Order in this proceeding (258 NLRB 734 (1981)), finding that Re- spondent had violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union and by implement- ing certain unilateral changes. Thereafter on February 25, 1983, the United States Court of Appeals for the Dis- trict of Columbia Circuit granted Respondent's petition for review and remanded the case to the Board. (700 F.2d 727 (D.C. Cir. (1983).) The court of appeals had de- termined that there was an issue of whether Respondent and the Union had orally agreed at a preelection confer- ence to exclude motor route carriers from the unit. It concluded that the Board had erred in failing to issue a 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subpoena to require the testimony of the Board agent who conducted this conference. Thereafter, by Order dated February 1, 1984, the Board ordered this proceeding reopened and that a hear- ing be held to take evidence pursuant to the remand of the court. I, having been designated by the chief admin- istrative law judge, conducted a hearing on April 30, 1984, at Newark, New Jersey, for the purpose of taking evidence in accordance with the court's remand. All par- ties were given full opportunity to submit evidence rele- vant to the Board's order and remand. Following the close of the hearing, the General Counsel and Respond- ent submitted briefs which have been considered. On the entire record of the remanded hearing and from my observation of the witnesses , I make the follow- ing ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS At the hearing, George Abrams appeared on behalf of Respondent pursuant to a subpoena . Abrams had been a Board attorney from 1973 until 1979 and he was the as- signed agent who, in connection with a representation petition filed by the Charging Party herein, conducted and participated in a conference which culminated in the execution of a Stipulation for Certification Upon Consent Election. At the outset and throughout his examination, Abrams stated that his recollection of what had occurred at this representation case conference, 10 years before his appearance on this remand, was very hazy. He indicated that he had been furnished by Respondent's counsel access to some of the formal documents that were part of the record in this proceeding , and this somewhat as- sisted his memory. The sum total of Abrams' testimony is to the effect that at the conference the parties were negotiating and there were two subjects discussed which are not specifi- cally referred to in the stipulation. He believed that these discussions concern (1) a delivery group, presumably young people who deliver papers, and (2) the motor route carriers. He believed that agreement was reached on one of these groups but he does not know which. He did recollect leaving the conference to do some research as to whether a certain group could or could not be properly included in the unit, but again does not recall which group was involved. Parenthetically, it may be noted that Abrams said that he would have made notes as to this matter, but unfortunately the files were de- stroyed because of the passage of time. This is a summa- ry of Abrams' testimony at the hearing which bears on the issue at hand. Victor J. Parsonnet was called as a witness by the General Counsel and he stated that during the course of the conference there was some question as to the inclu- sion of newspaper delivery boys in the unit As the Union had no showing of interest among the delivery boys, both the Company and the Union agreed that they should be excluded from the unit. Parsonnet testified that Abrams had a problem as to, whether he could have properly excluded the newspaper delivery boys from the unit, apart from any agreement of the parties, and he did some research on that point. Parsonnet further stated that he did not recall any research being done on an issue concerning motor route carriers because he did not remember the use of that term at the confrence. As far as he knew, they were all drivers. Finally Parsonnet, on cross-examination, testified that the authorization cards just contained the term "driver," and that the phrase "motor route carrier" was not used at all. The Board, in its remand, stated its intention "to de- velop a complete record concerning the issue being liti- gated." It noted that other individuals on behalf of both Respondent or the Union were present at the conference, and therefore its order would not preclude parties from presenting other individuals as witnesses . Nevertheless no other witness was called by any of the parties at the hearing on the remand. Consequently on the basis of the record and the testi- mony discussed above, I find that Respondent has not es- tablished its contention that it had agreed with the Union, at the representation case conference, that motor route carriers were to be excluded from the unit. Clearly Abrams' recollection has been dimmed over the period of 10 years subsequent to that conference, and he was unable affirmatively to state that any such agreement was reached in his presence. It has long been established that an agreement with re- spect to eligibility must be in writing and signed by the parties. Norris-Thermador, 119 NLRB 1301 (1958). A rec- ognized exception to that rule is set forth in Banner Bed- ding, Inc., 214 NLRB 1013 (1974), which would give effect to an oral agreement as to eligibility as final and binding if both parties acknowledged the agreement and if it served as a "critical predicate" to a consent election. In the instant case both parties are not acknowledging such agreement, nor has Respondent been able to estab- lish one. Accordingly I recommend that the Board adhere to its original determination and decision in this proceeding.' 1 It is noted that the Board has ordered that the provisions of Sec 102 46 of the Board's Rules are applicable to this supplemental decision.