North Jersey Advance

856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Drukker Communications, Inc. and its Wholly Owned Subsidiary, The Daily advance, Inc., and North Jersey Newspapers, Inc., d/b/a North Jersey Advance' and Newark Mailers Union No. 11 a/w International Typographical Union, AFL-CIO. Case 22-CA-7413 September 26, 1990 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On September 7, 1976, following the resolution of objections and challenged ballots in a represen- tation election conducted on June 21, 1974, the Na- tional Labor Relations Board certified the Union as the collective-bargaining representative of certain of Respondent Daily Advance's circulation depart- ment employees To contest the appropriateness of the unit and the Board's certification, the Daily Advance refused to bargain with the Union, there- by giving rise to the Board's Decision and Order in Drukker Communications, 258 NLRB 734 (1981) In that case the Board found that the Daily Advance violated Section 8(a)(5) and (1) by refusing to bar- gain and by instituting certain unilateral changes in the employees' terms and conditions of employ- ment and dealing directly with employees, and or- dered Daily Advance to bargain with the Union Daily Advance then petitioned the United States Court of Appeals for the District of Columbia Cir- cuit for review of the Board's Order, and the Board cross-applied for enforcement of the Order On February 25, 1983, the court granted the peti- tion for review, vacated the Board's Order, and re- manded the case to the Board for proceedings not inconsistent with its opinion Drukker Communica- tionsv NLRB, 700 F 2d 727 Thereafter, on No- vember 13, 1985, the Board issued its Supplemental Decision and Order, finding that Daily Advance had unlawfully unilaterally reduced unit work, ne- gotiated mdividually with employees, and refused to bargain with the Union Drukker Communica- tions, 277 NLRB 418 2 On March 17, 1986, the Board filed an applica- tion for enforcement of the Supplemental Order with the United States Court of Appeals for the Third Circuit On April 4, 1986, North Jersey Newspapers, Inc (North Jersey) sought to inter- vene in the enforcement proceeding on the basis that it had purchased all the assets of Daily Ad- 1 As explained below, North Jersey Newspapers, Inc was permitted to Intervene in this proceeding Given our disposition of this case, however, we find It unnecessary to determine its status as a successor 2 As explained in fn 4, infra, the Board's supplemental decision also modified the unit descnption vance on August 1, 1985 In order to consider North Jersey's successor status, the Board moved for withdrawal of its enforcement application, and the court granted the motion without prejudice to refile On May 6, 1986, North Jersey filed with the Board its motion for leave to intervene and for re- consideration, asserting its interest in this proceed- ing as the purchaser of Daily Advance's assets and property but reserving the right to litigate its suc- cessor status In the motion, North Jersey also challenged the appropriateness of the Union's certi- fication On May 15, 1986, the Board granted North Jersey's motion to intervene but denied its request for reconsideration as untimely A supple- mental notice of hearing on the issue of successor- ship was issued on September 30, 1986 Thereafter, on April 13, 1987, North Jersey, counsel for the General Counsel, Daily Advance, and the Union filed a joint Motion to Transfer Pro- ceedings to the Board and a Stipulation of Facts On June 15, 1987, the Board issued an Order ap- proving the parties' stipulation, granting their motion, and transfernng the proceeding to the Board North Jersey and the General Counsel filed briefs In their joint motion the parties agreed that no oral testimony is necessary or desired and that the supplemental notice of hearing dated November 19, 1986, and the stipulation of facts constitute the entire record in this case The parties stipulated further that they waive a hearing before an admin- istrative law judge, the making of findings of fact and conclusions of law by a judge, and the issuance of a judge's decision The stipulation indicates that it is entered into by the parties without prejudice to any objection that any party may have concern- ing the materiality, relevance, or competency of any facts stated in the stipulation, and without prej- udice to any right that Daily Advance and North Jersey may have to challenge the Board's decisions and orders in Drukker Communications, 258 NLRB 734 (1981), and 277 NLRB 418 (1985) The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the record in light of the parties' stipulation and briefs and finds that Daily Advance is not obligated to bargain with the Union and did not violate the Act as earlier found Our findings are based on our reexamination of the 1976 certification of the Union in light of the deci- sion of the Court of Appeals for the District of Co- lumbia Circuit The 1974 election was conducted among em- ployees in the following unit 299 NLRB No 134 DRUKICER COMMUNICATIONS 857 All circulation department employees [at Daily Advance's Dover facility] including drivers, mail clerks, mailroom helpers and district advi- sors, but excluding all office clerical employ- ees, professional employees, guards, and super- visors as defined in the Act The initial tally of ballots was 10 for and 12 against representation by the Union, with 6 chal- lenged ballots The revised tally, computed on res- olution of challenges to the ballots cast by 5 motor route carriers, was 15 for and 12 against represen- tation 3 As stated above, the Union was certified as the collective-bargaining representative, and Daily Advance refused to bargain with the Union On pe- tition for review of the Board's findings that the Respondent violated the Act by refusing to bar- gain, Daily Advance challenged the inclusion of motor route carriers in the unit and, for the first time, also challenged the inclusion of district advi- sors who, although specifically listed in the unit de- scription, were alleged by Daily Advance to be su- pervisors The United States Court of Appeals for the District of Columbia Circuit found that the Board "failed to make a finding on a material issue of fact," i e, that the district advisors were not su- pervisors, or that the individuals whom they super- vised were not employees within the meaning of the Act, and therefore that the Board's determma- tion on this point must be set aside Drukker Com- munications v NLRB, 700 F 2d 727, 736 (D C Cir 1983) 4 Thereafter, m its Supplemental Decision and Order, the Board modified the unit description to exclude district advisors but adhered to its find- ings that Daily Advance unlawfully refused to bar- gain with the Union 5 In our view, the participation of the district advi- sors in the election and the resulting tallies, on which both the certification and bargaining order a 258 NLRB 734, 739 The sixth challenge was sustained 4 The court did not disturb the Board's finding that motor route cam- era were eligible to vote in the election, but did direct the Board to con- sider the independent contractor status of delivery contract holders, se, the classification that replaced motor route carriers after the election 3 277 NLRB 418 The revised unit descnption also reflected Daily Ad- vance's partial move to a facility in Roxbury, New Jersey, and the Board's finding that delivery contract holders (the replacement classifica- tion for motor route carriers) were independent contractors According- ly, the revised unit description was All circulation department employees at [Daily Advance'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 clencal employees, professional em- ployees, guards and supervisors as defined in the Act were based, make it impossible to determine whether the Umon attained majority support as a result of the election The Excelsior list had 25 indi- viduals listed Twenty-eight individuals voted m the election, six of whom were challenged by the Board agent because their names were not on the Excelsior list From these numbers it is fair to con- clude that three individuals on the Excelsior list did not vote None of the mdividuals challenged were district advisors The record establishes that there were 13 district advisors on the Excelsior list 6 Even assummg that the 3 individuals on the list who did not vote were district advisors, at least 10 district advisors voted Given the initial tally (10 for and 12 against representation) and the revised tally (15 for and 12 against representation), and the fact that at least 10 district advisors voted, there was absolutely no way to determine that a majority of employees voted for the Union once district ad- visors were excluded from the unit Accordingly, their exclusion made it impossible to discern the 9(a) majority status of the Union As the finding of 9(a) majority status on which the certification of representative and attendant bargaining obligation were grounded in the earlier proceedings is no longer clear, we find that Daily Advance committed no unfair labor practices in re- fusing to bargain Accordingly, the Board lacked an adequate basis for issuing a bargaimng order in its Supplemental Decision and Order 7 ORDER The National Labor Relations Board orders that the Supplemental Order in 277 NLRB 418 (1985) is rescinded and that the complaint in this proceeding is disnussed IT IS FURTHER ORDERED that the certification of Newark Mailers Union No 11 a/w International Typographical Union, AFL-CIO as the exclusive representative of employees of Drukker Communi- cations, Inc , Dover and Roxbury, New Jersey, in the units described in 258 NLRB 734 (1981), and 277 NLRB 418 (1985), is rescinded 6 258 NLRB 734, 737, 744 The judgment Issued along with the court's opinion vacates the Board's bargaining order in 258 NLRB 734 Even if the court's order could be interpreted as allowing the Board to reaffirm its bargaining order, that interpretation was rendered meaningless when the Board opted to find, in accordance with the court's finding, that the distnct ad- visors were supervisors 277 NLRB 418, 424 at fn 36