Drukker Communications, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 734 (N.L.R.B. 1981)

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 Interna- tional Typographical Union, AFL-CIO. Case 22-CA-7413 September 30, 1981 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On February 20, 1980, Administrative Law Judge Herzel H. E. Plaine issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- ministrative Law Judge's Decision. 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 has considered the record and the at- tached Decision in light of the exceptions and briefs2 and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 The Administrative Law Judge found that Re- spondent violated Section 8(a)(5) and (1) of the Act by relocating the mailroom portion of its circula- tion department from Dover to Roxbury without notifying or bargaining with the Union. We find merit in Respondent's exceptions to this finding. On January 18, 1977, the Union filed a charge in this proceeding which alleges that Respondent has refused to bargain since on or about July 7, 1976. On February 14, 1977, the Regional Director issued a complaint which the General Counsel amended at the hearing to allege that Respondent had violated Section 8(a)(5) and (1) by instituting certain unilateral changes. The Administrative Law Judge granted Respondent a substantial period of time in which to gather evidence to rebut the alle- gations raised by the amendment.4 With the excep- ' The name of Respondent appears as amended at the hearing. 2 Respondent has requested oral argument. This request is hereby denied as the record, the exceptions and the briefs adequately present the issues and the positions of the parties. :' I adopting the Administrative Law Judge's Decision we do not rely on Enily Tweel Jacohs. RuSel/ Jaobs. and Emil Tweel d/b/a L. Tweel Im- porting Co.. 219 NLRB 666 (1975). here the Board, at fn. 3, based its finding of an 8(a)(5) violation on the fact that the employer had recog- nized the union and entered into bargaining with the union. ' In the circumstances of this case, we agree with the Administrative Law Judge's denial of Respondelt's request for a bill of particulars In doing s, however, we do not rely on his reference to) Respondent's re- quest as being "specious." 258 NLRB No. 97 tion of the mailroom relocation, all the unilateral changes which the Administrative Law Judge found to be unlawful occurred after Respondent's refusal to bargain on January 3, 1977. Respondent contends that Section 10(b) bars the finding that the unilateral relocation of the mailroom was un- lawful. The Administrative Law Judge found that the mailroom relocation occurred in April 1975. Union Representative Jack Boris admitted that he became aware of the relocation in late 1975 or early 1976, and of necessity the employees had knowledge of it immediately upon its occurrence. Therefore, the record clearly discloses that all the affected parties received notice of the change prior to July 18, 1976, 6 months before the charge was filed. None- theless, the Administrative Law Judge did not view Section 10(b) as a bar to finding a violation in this instance. He correctly observed that Section 10(b) is subject to equitable principles and may be tolled where Respondent has fraudulently con- cealed its unlawful conduct. However, we find that these principles are inapplicable in the instant case where it has not been demonstrated that Respond- ent has engaged in such conduct. The Administrative Law Judge further found that the 10(b) period did not begin to run as to the relocation until September 7, 1976, when the Board certified the Union. In reaching this conclusion, he relied upon Mike O'Connor Chevrolet-Buick-GMC Co., Inc., and Pat O'Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB 701 (1974), for the proposition that a unilateral change is merely an inchoate viola- tion during the pendency of election objections, and does not mature into an unfair labor practice until certification. There the Board reaffirmed the rule that an employer acts at its peril in implement- ing unilateral changes during the period that objec- tions to an election are pending. The Board was not confronted with a statute of limitations defense, and therefore did not have occasion to consider when the 10(b) period begins to run as to precerti- fication unilateral changes. In this connection, the Board has also held that the 10(b) period begins to run when the injured party receives actual or constructive notice of the employer's unilateral activity.5 In Florida Steel Cor- poration, 235 NLRB 1010 (1978), where the em- ployer acted unilaterally between the election and the union's certification, the Board found that the 10(b) period began to run when the injured parties were put on notice of the changes. In the instant s See. e.g., llied Products Corporation, Richards Brothers Division, 230 NLRB 858 (1977): Southeastern Michigan Gas Company, 198 NLRB 1221 (1972); Russell-Newman Manufacturing Company. Inc., 167 NLRB 1112 (1967), enfd. 406 F.2d 1280 (5th Cir. 1969), 734 735DRUKKER COMMUNICATIONS. INC. case, both the Union and the employees had re- ceived actual notice of the mailroom relocation prior to the 6-month period preceding the filing of the charge. Therefore, we find that Section 10(b) bars the finding that Respondent violated Section 8(a)(5) and (1) in its relocation of the mailroom. Accordingly, we shall dismiss that allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Drukker Communications, Inc., and its wholly owned subsidiary The Daily Advance, Inc., Dover and Roxbury, New Jersey, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Delete the word "location" from paragraphs l(b) and (c) and 2(b) and (c). 6 2. Substitute the following for paragraph l(d): "(d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act." 3. Substitute the attached notice for that of the Administrative Law Judge. s We also amend Conclusions of Law 3 by deleting the word "loa- tion. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT refuse, upon request, to bar- gain with the Union as the exclusive collec- tive-bargaining representative of the unit of our circulation department employees de- scribed below. WE WILL NOT refuse, upon request, to bar- gain with the Union over unremedied effects upon unit employees of past unlawful failures to give notice to, and to consult and bargain with, the Union concerning unilateral changes and their effects upon unit employees in status, pay, or other working conditions of unit em- ployees. WI WIll. NOT fail or refuse to notify the Union of any future proposals or actions af- fecting the status, pay, or other working con- ditions of unit employees, and to consult and bargain with the Union over such proposals or actions and over the effects upon unit employ- ees of such proposals or actions, and WE WILL. NOT deal directly and individually with the employees concerning such proposals or ac- tions. WE WII.L NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILl., upon request, bargain with Newark Mailers' Union Local 11II, a/w Interna- tional Typographical Union, AFL-CIO, as the exclusive collective-bargaining representative of the unit of our circulation department em- ployees at or connected with the Dover and Roxbury, New Jersey, plants, including driv- ers, motor route carriers, delivery contract carriers, hauling contract carriers, mail clerks, whether or not combining that function with other nonunit work, mailroom helpers, district advisors, district sales representatives, but ex- cluding office clerical employees, and guards and supervisors as defined in the Act; and, if an agreement is reached, embody it in a writ- ten contract. WE WILL., upon request, bargain collectively with the Union over the unremedied effects upon unit employees of past unlawful failures to give notice to, and to consult and bargain with, the Union concerning unilateral changes or other working conditions of unit employees. WE WILL NOT give notice to the Union of, and consult and bargain with it concerning, any future proposals or actions affecting the status, pay, or other working conditions of unit employees and concerning the effects of such proposals or actions upon unit employees. DRUKKER COMMUNICATIONS, INC., AND ITS WHOLLY OWNED SUBSIDIARY THE DAII.Y ADVANCE, INC. DECISION STATEMENT OF THE CASI HERZEI H. E. PAINIE, Administrative Law Judge: Respondent is the owner and publisher of a daily news- DECISIONS OF NATIONAL LABOR RELATIONS BOARD paper, The Daily Advance,' which circulates principally in Morris County, New Jersey, with some additional cir- culation in the counties of Sussex and Warren. The Charging Party (the Union) is the certified bar- gaining representative of the employees of Respondent's circulation department. Respondent has never bargained with the Union and refuses to do so. The representation election in Case 22-RC-6072 was held on June 21, 1974. Following disposition by the Re- gional Director and the Board of challenged ballots, the Union was certified as bargaining representative on Sep- tember 7, 1976. The Union requested bargaining shortly thereafter. Respondent met twice with the Union on Oc- tober 21, 1976, and January 3, 1977, but declined to bar- gain for a circulation department unit that included so- called motor route carriers, on the ground that they were independent contractors and not employees as the Board has found. The Union filed a charge on January 18, 1977, and a complaint issued on February 14, 1977, charging Re- spondent with refusal to bargain in violation of Section 8(a)(5) and (1) of the National Labor Relations Act. as amended. Following Respondent's filing of an answer, which did not deny the refusal to bargain, the General Counsel moved directly before the Board in May 1977 for sum- mary judgment on the ground that there was no genuine issue to litigate, noting, among other things, that, in dis- posing of the challenged ballots, the Regional Director and the Board had found, after an evidentiary hearing, that the motor route carriers were employees and not in- dependent contractors. On December 29, 1977, the Board denied the General Counsel's Motion for Summary Judgment, on the ground that Respondent's opposition to the motion raised issues of fact and law best resolved after a hearing. The Board said, "We note for example, such issues as the circum- stances involved in, and the import of, the parties' con- ference directly preceding the stipulation in the represen- tation case, questions concerning the present composition of the unit, and the possible import of changes in the unit prior to certification." The matter was heard before me at Newark, New Jersey, on June 14, July 18 and 19, August 29, and No- vember 16, 1978. Respondent sought to show, contrary to the Union's denial, that in the May 28, 1974. confer- ence on the representation petition (prior to the election) the Union had agreed to the exclusion of motor route carriers from the bargaining unit, although the stipulation concerning the unit made no mention of their exclusion. Further, Respondent argues that the motor route carriers were adjudged by the Board to be employees as of the ' Respondent stated in its amended answer io the complaint that it changed its name from Union Building and Investment Company o Drukker Communications, Inc.. which sold all assets and liahilities Iof the newspaper to The Daily Advance, Inc.. but stipulated with the parties that all shares of The Daily Advance. Inc.. are owned by Drukker Cornm- municaions, Inc., and that The Daily Advance. Inc.. is a wholly oiled subsidiary of Drukker Communications. Inc., that the officers anld direc- tors elf Drukker Communications, Inc.. and of The Daily Advance. Ilc.. are the same and that. for the purposes of this proceeding. the change from Union Building and Investment Company trading as The Daily Ad- vance to The Daily Advance, Inc., was a change in name nl. time of the election (June 21. 1974) and that since then their functions and title have undergone changes that more clearly establish status as independent contractors. Additionally, Respondent claims that since the election, and both prior to and after the Board certification (of September 7. 1976), Respondent changed its operations by moving, starting in April 1975, part of the original Dover, New Jersey, plant to a new Roxbury, New Jersey, plant, including the "mailroom" and mailroom helpers and the drivers of company-owned motor vehi- cles, later substituting alleged independent contractors for some of the drivers, transferring the functions of dis- trict advisors to substituted district sales representatives, and allegedly denuding the Dover plant of circulation department employees previously certified as the bar- gaining unit, while expanding the numbers of employees of the Roxbury mailroom to service additional newspa- per publications of Respondent. Therefore, Respondent argues, the circulation department unit certified by the Board no longer exists at Dover and has been supplanted by a new and much larger "distribution" department at Roxbury. The General Counsel and the Union contended that Respondent's claimed changes in or affecting the unit, both before and after Board certification, were made uni- laterally, without prior notice to or knowledge of the Union and without consultation with the Union concern- ing the changes or their effects upon unit employees. In this connection I allowed the General Counsel's amend- ment of the complaint charging Respondent with further violations of Section 8(a)(5) and (1) of the Act by unilat- erally changing conditions of employment without con- sulting or bargaining over the changes with the Union, and by bargaining directly and individually with employ- ees in the unit. Nonetheless, the General Counsel also contends that some of the changes were merely cosmetic and that none of the changes were sufficiently substantial to alter the circulation department unit or its certifica- tion. The General Counsel and Respondent have filed briefs. Upon the entire record of the case, including my ob- servation of the witnesses and consideration of the briefs, I make the following:2 FINDINGS OF FACT I. JURISDICTION Respondent is a New Jersey corporation with its prin- cipal office and place of business in Dover, New Jersey, where it publishes a daily newspaper, The Daily Ad- vance. Since approximately April 1975, Respondent has added a second facility for such publication at Roxbury, New Jersey, about 8 miles from the Dover facility. In the year prior to issuance of the complaint, a repre- sentative period, Respondent subscribed to interstate news services, published syndicated features, advertised products sold nationally. and received gross revenue from its publishing operation in excess of $200,000. As The crrection f the misspelling of the name Drukker r Drukker Communicatioans. Inc.. its Drucker, in the record. is hereby made 736 DRUKKER COMMUNICATIONS. INC. the parties admit, Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. As the parties also admit, the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. II. THE UNIFAIR LABOR PRACTICES A. Respondent s Business Operations Based largely on the testimony of Respondent's princi- pal witness, Kenneth Van Dalen, circulation director of The Daily Advance, it appears that the newspaper is published Monday through Friday as an evening paper and on Sunday as a morning paper. Publication of the Sunday edition commenced with the Sunday paper of March 5, 1978. The heart of Respondent's circulation of The Daily Advance is the city of Dover, New Jersey, and its imme- diate environs. Dover is in Morris County, New Jersey, and the paper also circulates in areas of Morris County considered by Respondent to be "remote" from Dover, and in parts of Sussex and Warren Counties also deemed remote from Dover. Respondent's counsel stated that the paid circulation of The Daily Advance was 18,000 copies on weekdays, and somewhat less than that on Sundays. The organizational components of The Daily Advance are the production department for composing and print- ing the paper, the advertising department, the editorial department, the business office, and the circulation de- partment for effectuating delivery of the paper to its readers. Our direct concern is the circulation depart- ment, whose employees were involved in or affected by the union organizing of 1974, the representation election of June 21, 1974, and the Board certification of the Union on September 7, 1976. All of the newspaper's organizational components were located at the Dover plant (and only plant) when the June 1974 election was held. At that time the catego- ries of employees of the circulation department com- prised district advisors, mailroom 3 helpers, mail clerks, office clericals, and drivers including motor route carri- ers. 4 The district advisors, of whom there were about 13, were part-time employees who handled the recruiting and training of, and the collections from, the youngster carriers, and the complaints of customers. The district advisors were included by mutual agreement in the bar- gaining unit as among the employees of the circulation department, specifically by their category "district advi- sors." :' The mailroom is the place where the printed papers are assembled and bundled. and the bundles marked or labeled, fr delivery hy vans and other motor vehicles to youngster carriers for home delivery. or to stores or vending machines for sale to the public. There is also some direct mailing of the newspaper to subscribers requiring mailroom labeling of the individual papers by a mail clerk before delivery to the postal service ' An additional category, district managers, of whom there were three or four. were held by the Regional Director (Report on Challenged Bal- lots. G.C. Exh. 1, 1-10, p. 5) to he statutory supervisors who directly su- pervised the district advisors and the motor route carriers (se G C. Exh 1, 1-18. Hearing Officer's Report on Challenges). and ere excluded from the circulation department bargaining unit as among the excluded general category "supervisors." The Unionl accepted this decision Additionally, mailclerks were specifically included as employees in the unit, but office clerical employees were specifically excluded. Also specifically included by category as employees in the unit were the mailroom helpers, who assist in the as- sembly of the newspapers when inclusion of inserts by hand is required, or in tying bundles when strapping of bundles is not done by machine, and who place the de- livery labels on the bundles, and assist in loading bundles into delivery vans and other motor vehicles when not mechanically done. Likewise, drivers were specifically included by catego- ry in the unit of employees. However, there was dis- agreement between the Union and Respondent at and after the election as to whether the term "drivers" in- cluded drivers who delivered papers from vehicles not provided by Respondent. Some of these drivers had signed union authorization cards and voted at the elec- tion under challenge. Respondent called them motor route carriers and contended they were independent con- tractors. The Union contended they were employees, and resolving the challenges, after hearing, the Board agreed with the Union that the motor route carriers were employees. Both groups of drivers performed es- sentially the same function of getting the bundles of newspapers to youngster carriers for home delivery, or to stores for public sale, or, in remote areas, to custom- ers' homes. The drivers who operated company-owned vehicles operated principally in Dover, the heart of the circulation area, and almost exclusively delivered bundles at designated drops. The motor route carriers, who pro- vided their own vehicles, operated principally in the out- lying areas, remote from Dover, and made direct deliv- eries of individual newspapers to customers' homes as well as deliveries of bundles at designated drops for youngster carriers or stores. Starting sometime in 1975, according to Circulation Director Van Dalen, whenever a motor route carrier gave up his job, Respondent began the gradual process of classifying the successor as a "delivery contract holder," and by the time of hearing had changed all clas- sifications as motor route carrier to delivery contract holder or, in some cases, to "hauling contract holder," discussed under the next subheading. The function of driving and delivering for Respondent has remained the same, but while Respondent contends that certain ar- rangements affecting delivery contract holders (and haul- ing contract holders) make clearer their status as inde- pendent contractors, the fact remains that both new clas- sifications of drivers are dependent for their principal recompense on weekly stipends paid by Respondent. By mutual consent the Union and Respondent agree that the youngster carriers were not employees and they were not part of the stipulated bargaining unit of circula- tion department employees. The Partial Move to Roxbury In April 1975, Respondent completed a new plant at Roxbury, New Jersey. between 8 and 9 miles from the Dover plant. to house a new press and pressroom and a new mailroom with new mechanized equipment to 737 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reduce the work done by hand by mailroom helpers, such as machinery for counting, stacking, and strapping bundles of newspapers, and moving strapped bundles di- rectly onto motor vehicles for delivery. The new facility also took on servicing other publications of Respondent in addition to The Daily Advance. These included three weekly newspapers, the Blairstown, Belvedere, and Net- cong weeklies, the Sunday edition (and later the full edi- tion) of the Herald News (a weekly and Sunday newspa- per with headquarters in Passaic, servicing readers in Passaic, Bergen, and Essex Counties), a television book- let, and some commercial circulars. The Daily Advance moved part of its production de- partment-the pressroom employees numbering 7 to 8- from Dover to Roxbury, but left at Dover the compos- ing room employees (typesetters, cameramen, page makeup men, etc.) numbering from 20 to 25. It is note- worthy, as testified to by Jack Boris, representative of the International Typographical Union, that its affiliate, Morris Typographical Local 433, a sister affiliate with the Union in this case (Newark Mailers' Local 11), had been and continues to be the bargaining representative of the employees of Respondent's production department at The Daily Advance notwithstanding the move of the pressroom employees to Roxbury. One chapel chairman (shop steward) covers all the bargaining unit employees at both locations, and Respondent and Morris Local 433 executed a new contract since the move, effective for 3 years from November 8, 1976, covering both groups of employees at Dover and Roxbury. Boris testified, with- out contradiction, that Respondent never asserted that Morris Local 433 did not represent the production unit employees, or part of them, because of the move to Rox- bury or because of changes made in connection with the move. Respondent also moved its mailroom from Dover to Roxbury. As Circulation Director Van Dalen testified, the function of the mailroom remained the same as it had been at Dover; namely, to handle or package and label the newspapers for distribution as they came off the press. Notwithstanding the sophisticated machinery brought into the new mailroom to reduce the amount of manual handling of the papers by doing automatic count- ing, stacking, and strapping, a good deal of manual han- dling was and is still required, as, for example, assem- bling and bundling the Sunday Daily Advance by hand for which 10 mailroom employees are required to put in the inserts, such as the comic section, the television booklet, and other items; putting delivery labels on all bundles by hand; and, in cases where the bundles are not automatically strapped by machine and moved directly into motor vehicles outside the door, but are stacked by a conveyor onto skids, they are later tied and moved by the mailroom helpers onto motor vehicles. With the work given to the Roxbury mailroom in ad- dition to The Daily Advance, the number of employees in 1978 had increased to 70 mailroom helpers, said Circu- lation Director Van Dalen. However, none of them needed technical knowledge of the several machines, which were set to do their job of stacking, counting, or strapping automatically; and all mailroom helpers worked interchangeably on mailroom jobs regardless of the machinery involved. At Respondent's request, Van Dalen estimated that of the 70 mailroom helpers about 17 percent represents the ratio needed for Daily Advance work in the mailroom. At Dover, before the move of the mailroom to Rox- bury, Respondent had one mail clerk, Bernice Ward, who prepared and affixed the labels for mailing, from the post office, the individual papers to subscribers requiring mail delivery. After the move of the mailroom to Rox- bury, employee Ward remained on with the circulation department in Dover. Circulation Director Van Dalen first said that Ward no longer did this work, but on cross-examination revised his testimony to say that she continued to prepare the mailing labels, spending half her time on that, and the other half of her time on office clerical work. According to Circulation Director Van Dalen, when the mailroom moved to Roxbury in April 1975 the driv- ers were moved with the mailroom to Roxbury. The new mailroom machinery contemplated automatic load- ing of the delivery motor vehicles with the bundles that came off the conveyor from the automatic strapper. Notwithstanding the physical move to Roxbury of parts of both the circulation department and the produc- tion department, ultimate supervision and control of The Daily Advance and its departments still resides at Dover. Dover continues to have the composing room of the pro- duction department, the business office, the advertising department, the editorial department, and the circulation department. Physically, at the time of hearing, the circu- lation department at Dover contained the director, Van Dalen, a sales manager, a newsstand and delivery coordi- nator, the district sales representatives (who are the suc- cessors of and do the work of the district advisors), the mail clerk Ward, and several office clerical employees. However, as Van Dalen testified, he is responsible as cir- culation director to see that the newspaper is delivered, and he goes to Roxbury two and three times per week. Additionally he is in constant communication with the new Roxbury plant supervisor, Dick Drukker, whom Respondent installed in March or April 1978, and whose duties include supervision of the mailroom. Supervisor Drukker was trained by, and became familiar with his duties and area of authority through, Van Dalen, as Van Dalen testified. Drukker, on his part, performs some of his duties at Dover, and Van Dalen sees him frequently at Dover three or four times a month in meetings at Dover that both participate in with General Manager Robert Noga, in addition to Van Dalen's visits two and three times per week at Roxbury. Directly supervising the mailroom helpers in the mailroom are Mailroom Su- pervisor Robert McHugh and Assistant Mailroom Super- visor Donald Anderson. Although, as Director Van Dalen said, the function of the mailroom has continued to be the same as it was at Dover, namely, to package, bundle, and label the news- papers for delivery, Respondent now calls it the "distri- bution department." The distribution department com- prises, according to Van Dalen, all the Roxbury mail- room staff (the mailroom helpers and the two in-mail- room supervisors), the four or five hourly paid drivers 738 DRUKKER COMMUNICATIONS. INC. who drive Respondent's delivery vans, and the several "hauling contract holders" who, increasingly, are doing the same kind of delivery as hourly paid drivers but with vehicles not owned or provided by Respondent and for a stipend individually agreed upon between each of them and Respondent. (As already noted. Respondent con- tends that the hauling contract holders are independent contractors and not employees.) B. The Certif cation of the Union On May 3, 1974, the Union wrote to Respondent stat- ing that it represented a majority of the employees of the circulation department including truckdrivers and mail- ers, and asked for recognition and bargaining. Respond- ent declined to recognize the Union, and the Union filed a representation petition on May 15, 1974. At the time the Union had 15 signed authorization cards. The Union and Respondent met on May 28, 1974, under Board auspices, at an informal conference on the representation petition. As a result, they agreed upon a Stipulation for Certification Upon Consent Election (G.C. Exh. 1, 1-18) which they signed on June 3, 1974, approved by the Board's Regional Director on June 4, 1974. The stipulated bargaining unit was: All circulation department employees including drivers, mail clerks, mailroom helpers and district advisors, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. As agreed, the election was held on June 21, 1974; 10 votes were cast in favor of the Union, 12 votes were cast against, and there were challenged ballots, sufficient in number to affect the results of the election. The Board agent had challenged the six because their names did not appear on the eligibility list. Five of them were Richard Paolucci, Rosemarie Detlefsen, Margaret Hoffman, Nancy Olsen, and Jackie Morrell, whom Respondent de- scribed as "motor route carriers" and claimed they were independent contractors excludable from voting. The sixth was Kay Walker, a district manager, who Respond- ent said was a supervisor excluded from the unit and from voting. Initially, the Regional Director agreed with Respondent and sustained the six challenges. Upon ex- ceptions filed by the Union concerning the five motor route carriers, but not the district manager, the Board di- rected that a hearing be held on the challenges to the five motor route carriers, and adopted the Regional Di- rector's now uncontested recommendation sustaining the challenge to the ballot of District Manager Kay Walker. Following an evidentiary hearing on June 10 and 12, 1975, the hearing officer filed a detailed report on Sep- tember 29, 1976, finding that the five motor route carri- ers were employees and not independent contractors and recommended that their ballots be opened and counted (G.C. Exh. 1, 1-18). Upon consideration of exceptions to that report by Respondent, the Board, on January 23, 1976, adopted the Hearing Officer's findings and recom- mendations and directed the Regional Director to open and count the five ballots, issue a revised tally, and, if warranted by the revised tally, issue an appropriate certi- fication to the Union. The revised tally served on the parties on January 28, 1976. showed five additional votes for the Union and a final tally of 15 votes for the Union and 12 against. On February 3, 1976, Respondent filed objections to the election of June 21, 1974, and the revised tally served January 28, 1976. The Regional Director, in a report made on May 27, 1976, noted that Respondent's primary contention was that underlying the election agreement was an oral agreement with the Union that excluded the five chal- lenged voters as ineligible. Apart from his view of the untimeliness of this issue, the Regional Director conclud- ed that, since Respondent had raised the issue with the Board in its exceptions to the hearing officer's report. the Board had rejected the argument in adopting the hearing officer's recommendations, and that he (the Regional Di- rector) was bound by that determination. Concerning Respondent's other contention, that changes in working conditions after the election and after the hearing on the challenged ballots had so altered the challenged voters' employment as to warrant a new hearing on their status as independent contractors, the Regional Director concluded that such matter was more properly addressed to a unit clarification proceeding. He therefore recommended that the Board overrule Re- spondent's objections and issue a certification of repre- sentative to the Union. On June 8, 1976, Respondent filed exceptions to the Regional Director's report of May 27, 1976. After con- sideration, the Board adopted the report and issued the certification to the Union on September 7, 1976.5 C. Respondent's Refusal To Bargain Following the Board's certification of the Union, the Union requested bargaining on September 15, 1976, and a meeting was arranged and held on October 21, 1976, between union local and International representatives on the one side, and Respondent's representatives, including Respondent's (former) general manager and circulation director and its lawyer Hamburger on the other side. According to Union Representatives Boris (of the In- ternational) and Fassi (of the Local), the October 21 ' The unit description was in the same words agreed upon hb the par- ties in the approved preelection stipulation of June 4. 1974. quoted upra. except that the words "at the Employer's Dover. New Jersey facility" were added after "district advisors" so that the certification read, All circulationt department employees. including driver,. mail clerks. mailroom helpers and district advisors at the Emploer's Dover. New Jersey facility. but excluding all office clerical emplo'- ees. professional employees. guards and supervisors as defined in the Act. There was nothing in Respondent's objections of February 2. 1976. ad- dressed to the Regional Director. supra. or in Respondent's exceptions of June 8. 197b. to the Regional Director's report addressed to the HBoard. supra. to stimulate this reference to Dover (such as a reference to the then newly opened Roxbury facility. or art argument that the esislence of Roxhury substantially affected the unit) ]The only stimulation if it can he called that, appeared in fn. I in the Regional Director's report to the Board hich. silhout suggestion fr action. blandly identified the geo- graphical locationl of the emplo!er's facility as Doser. Ncs Jerse The BHoard included the geographical reference In the ccitlficatiln silthoul comment or indication that it as, attachinlg special igllifiaice to the referefernce, or inrtending to redefine or nalrrov the unit See sec J, mtlr;a 739 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting was exploratory and the Union's proposals were verbal. It was made evident to the Union from the outset by Respondent's lawyer, Hamburger, that, notwithstand- ing the Board's certification, Respondent continued to challenge the Union's right to represent all the drivers, particularly the five whose ballots had been found valid by the Board and like drivers. It is noteworthy that, al- though Respondent had labeled them "motor route carri- ers" in the discussions and litigation that followed the election, the individuals themselves did not know that name. On their cards given to the Union in April 1974, four of the five card signers each identified themselves as "motor route driver" and the fifth as "driving" (G.C. Exhs. 3a-e). This fact lends support to the testimony of the Union's lawyer, Parsonnet (who was called to testify by Respondent), that neither the Union nor he knew the term "motor route carriers" before the election and that the union representatives and he regarded all who en- gaged in delivery of The Daily Advance by motor vehi- cle, whether to stores, newsstands, or individual custom- ers, as drivers. At the supposed bargaining meeting of October 21, 1976, and again at the second meeting that followed, Jan- uary 3, 1977, the union representatives asserted that the Board had confirmed their view of drivers when it re- jected Respondent's attempt to exclude voting by one class of drivers and certified an all-employees unit of the circulation department that included drivers without dis- tinctions. According to Union Representatives Boris and Fassi, Attorney Hamburger said he would not discuss any pro- posal that included motor route carriers, that things had changed by the time the Board certification was made. Union Representative Boris asked for a visit of the plant, in view of the claim of changes. Respondent re- fused to permit a visit. The only change he heard men- tioned in the two meetings, said Boris, was that the motor route carriers were now buying the newspapers from Respondent and reselling them to customers. Nevertheless, during the first meeting Boris asked for a list of the circulation department employees and their work functions. In a letter dated October 22, 1976, Re- spondent advised the Union that in its view the circula- tion department employees affected by the Board certifi- cation currently totaled 24 (named) employees, compris- ing 4 regular full-time drivers, 4 regular part-time driv- ers, 4 regular part-time mailroom helpers, I regular full- time mail clerk, and II regular part-time district advi- sors. Respondent added that it also had 11 (named) con- tractors who purchased Daily Advance newspapers from it for resale and delivery to various rural retail customers and who also contracted for delivery of bundles of news- papers to locations within the areas they had contracted to service; that these individuals were not employees within the meaning of the Act or the certification; and that Respondent would not entertain any union bargain- ing proposals that included them (G.C. Exh. 1, 1-29). Union Representative Boris testified that, at the second meeting, January 3, 1977, the Union came with a com- plete written proposal. Respondent contended again that the Union was including persons not certified, and the Union maintained they were part of the unit. Boris in- quired about some options, including one where the per- sons in contention were left out. According to Boris, Re- spondent's reply was that if the motor route carriers were left out the Union would not represent a majority and there would be need for another election. At this point the union representatives indicated they would have to resolve the matter in further litigation before the Board.6 The refusal-to-bargain charge was filed on Janu- ary 18, 1977. Respondent provided no testimony con- cerning the two meetings of October 21, 1976, and Janu- ary 3, 1977. Following the issuance of the complaint on February 14, 1977, and the filing of answer by Respondent on Feb- ruary 25, 1977, the General Counsel moved for summary judgment on May 18, 1977, on the ground that all issues Respondent sought to raise had been previously decided by the Board in the representation case or admitted in Respondent's answer. Respondent filed in opposition. In denying the General Counsel's motion on Decem- ber 29, 1977 (G.C. Exh. 1), and directing a hearing, the Board noted three issues it felt warranted hearing: 1. The circumstances involved in, and the import of, the parties' conference directly preceding the stipulation in the representation case. 2. Questions concerning the present composition of the unit. 3. The possible import of changes in the unit prior to certification. These and other matters that have arisen in the course of hearing are dealt with below. D. The Preelection Conference and Consent Election The representation petition was filed on May 15, 1974, and an informal conference on it was held at the Board's regional Office on May 28, 1974. Attending for Respond- ent was its then general manager, Phillip Mazzucca, then circulation director, John Hutchings, and Attorney Ham- burger who has represented Respondent throughout the proceedings. Attending for the Union was the then Local president, Grippo, employee Gary McCardle, a full-time driver of one of Respondent's vehicles (accord- ing to Attorney Hamburger), and Attorney Parsonnet who has represented the Union throughout. Presiding for the Region was Board Agent Abrams. The testimony concerning the conference was provided by the Union's lawyer, Parsonnet (on Respondent's call), and by Re- spondent's lawyer, Hamburger. 6 Union Representative Boris testified that no issue was made by Re- spondent of the move of the mailroom from Dover to Roxbury: that he ssas aware of it because previously the sister local he also represented, Morris Typographical Local 433. had its pressmen moved from Dover to Roxbury while the composing room remained at Dover, and the Union continued to represent the whole production department of pressroom and composing room employees: and that he did not view, nor was he told. that the similar partial move of the circulation department was an obstacle to representation of the unit as a whole. 7 Respondent sought to subpena Board Agent Abrams and, as required under Sec. 102.118 of the National Labor Relations Board Rules and Regulations. Series 8, as amended, applied to the General Counsel. at Washington. D.C., for permission to obtain Abrams' testimony. Permis- sion was denied, whereupon Respondent requested that I enforce the sub- pena nonetheless. relying on cases such as XL.R.B. v Capitol Fish Co.. Continued 740 DRUKKER COMMUNICATIONS. INC. The issue concerning the conference of May 28, 1974, narrowed down to whether in agreeing upon a bargain- ing unit of "all circulation department employees" that expressly specified "drivers" as one of four included cat- egories, and did not expressly exclude any class of driv- ers, the Union and Respondent had agreed upon inclu- sion or exclusion of drivers who delivered newspapers by motor vehicles, usually their own, but in any event not supplied to them by Respondent. As noted under heading C above, five of such individ- uals signed union authorization cards in April 1974, four identifying their occupation as motor route driver and one simply as driving. Obviously, from such indication, they did not know the name motor route carrier by which Respondent chose to identify them at and after the election, when controversy arose as to their eligibil- ity to vote. According to Union Lawyer Parsonnet, it was not until then that he heard the term "motor route carrier." Respondent's lawyer, Hamburger, testified that there was discussion in the May 28, 1974, conference of two categories of individuals, sparked, he said, by the fact that certain names did not appear on a list he showed at the conference, allegedly prepared from the payroll period ending May 16, 1974. He testified that Parsonnet asked why Respondent had not included district manag- ers, and that he, Hamburger, replied because district managers were supervisors. Hamburger further testified that he assumed Parsonnet accepted his explanation, but conceded that there was no agreement on Parsonnet's part that district managers were supervisors. The text of the unit stipulation excludes supervisors but does not spe- cifically exclude district managers; and it will be recalled that, when one of them voted at the election and was challenged, the Union espoused the right of the district manager to have voted but accepted the Regional Direc- tor's upholding the challenge on the ground that the dis- trict managers were supervisors (G.C. Exhs. 1, 1-10, and 12). The second category discussed in the conference, ac- cording to Hamburger, was that of motor route carriers. He claimed that, in response to a question concerning an individual omitted from his list, he said there were 14 similarly situated individuals not on the list because they were motor route carriers who were independent con- tractors. According to Hamburger, Parsonnet responded, "In that case we are not interested in them." Hamburger, who acknowledged 20 years of practice in labor law and considerable experience with preelection conferences and awareness of the importance of defining the bargaining unit, conceded that he did not put the alleged exclusion of motor route carriers in writing, although he was care- 294 F.2d 868 (5th Cir. 1961). However, the record reflected that Re- spondent made no attempt to obtain the testimony of an) of the persons who participated in the conference, particularly Respondent's former general manager. Mazzucca, and former circulation director. Hutchings, that the testimony of the two lawyers, Parsonnel and Hamburger. was available and was given, and that there were no special circumstanlces (as existed in Capirol soh) that would have made testimony by Board Agent Abrams necessary I held, therefore. that there was no apparent ubshan- tial harm to Respondent in maintenance of the claimed privilege ordinari- ly shielding Board personnel from becoming ins olsed in giving testimony in Board cases. and I honored the opposing motion to quash the subpena ful to exclude in writing office clericals, professional em- ployees, guards. and supervisors i defining the unit. Conversely, he acknowledged that drivers were specifi- cally included in the unit. The Union's lawyer, Parsonnet. testified there was no discussion of motor route carriers, that he and the Union did not know and had not heard the term used at this point and until the contest over ballots at and after the election; that he and the Union talked, and understood the parties were talking, of drivers whether they deliv- ered the newspapers to stores, or newsstands, or to indi- vidual customers in rural homes: that one-third of the 15 authorization cards, on which the Union based its claim under the petition for holding the election, were signed by the five such drivers who Respondent since labeled motor route carriers, and that he never consented nor agreed that they were excluded from the unit. Parsonnet also testified that he did not know then that there were 14 so-called motor route carriers, or what their names were. On June 3, 1974, without meeting again, Attorneys Hamburger and Parsonnet signed the Stipulation for Cer- tification Upon Consent Election, which was approved by the Regional Director on June 4, calling for an elec- tion on June 21. 1974 (G.C. Exh. 1, 1-8). On June 3, Parsonnet also received a copy of the Ex- celsior list prepared by Respondent and used at the elec- tion, purporting to be Respondent's view of who were the eligible voters, and naming 25 employees listed under categories of drivers, mail clerk, mailroom help, and dis- trict advisors (Resp. Exh. 5). Parsonnet testified that he did not compare the list with the names of card signers or otherwise look for deficiencies. but simply mailed the list to the Union. Sometime thereafter, close to the election, according to Parsonnet, the Union called him to say there was a shortage of names on the list. Because he and the Union thought, said Parsonnet, that Respondent was attempting to undermine the agreement and disenfranchise a number of employees, but not knowing how many and not want- ing to delay the election, which was close at hand, he and the Union decided to handle the problem by the challenge route at the election. As a result, said Parson- net, at the election the Board agent challenged those who presented themselves to vote who were not on the list. Thus the issue of the employee status, and eligibility to vote, of the so-called motor route carriers was deter- mined after rather than before the election. The Board held that they were employees of the circulation depart- ment entitled to vote. Conclusion 1. Respondent contends that, apart from the legal issue of employee versus independent contractor that was de- cided against Respondent, it had an oral agreement with the Union, in connection with entering the stipulation for a consent election, that motor route carriers were not part of the unit of circulation department employees. Therefore. says Respondent. that agreement should have governed the conduct of the election. 741 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the question of credibility, there is good reason to believe Parsonnet that there was no such oral agreement. From its campaign, the Union learned only of drivers without distinctions. The five employees who supported the Union, later categorized by Respondent as motor route carriers, did not appear to know that term, indicat- ing on their union authorization cards, before any con- troversy arose, that their status or function was that of motor route driver or just driving. Even if the subject of their status had been discussed at the preelection confer- ence, as Hamburger claimed, it was not likely that the Union's lawyer brushed away what was then one-third of the Union's supporters with a "we are not interested in them" response based on an alleged acceptance with- out question of a mere statement that they were inde- pendent contractors. I do not find in the evidence a credible basis for con- cluding that the unit as described in the preelection stipu- lation was subject to an oral understanding, or even mis- understanding, 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 ex- pressly eliminated, such as office clerical employees. Even the illustrative "including" clause, that embraced drivers, was not diminished or modified by terms such as regular drivers or full-time drivers or drivers of compa- ny-owned vehicles or some combination of modifiers em- bracing less than all drivers. In such circumstances, the Board will regard the w t- ten, signed agreement resolving issues of eligibility, and only such written agreement, as a final determination of the eligibility issues treated therein, unless it is in part or in whole contrary to the Act or Board policy, Morris- Thermador Corp., 119 NLRB 1301, 1302 (1958); Hunt- Wesson Foods, Inc., 220 NLRB 922 (1975). 8 In Cooper Mattress Manufacturing Company, 225 NLRB 200, 201 (1976), the Board held that even an initialed notation on an eligibility list, specifically excluding a named employ- ee who was a janitor, did not rise to the level of a Morris-Thermador agreement and was not a recognizable exception under Banner Bedding, the parties having sub- sequently disagreed on the employee's eligibility; and al- though janitors or janitorial employees were not specifi- cally mentioned in the stipulated unit the Board found that the challenged employee was included in the unit description and eligible to vote as "maintenance" em- ployee. In the case at bar, following an adversary hearing the Board ruled on the merits of the challenged ballots and " The narrow exception allowed under Ranner Bedding, Inc.. 214 NLRH 1013, 1014 (1974). honoring an oral modiication. was predicated on the fact that the employer and the union admitted that they agreed upon an oral exceptiotn to eligibility, as the Board explicitly noted in al- lowing such an exceptiion That is not the case here. Likewise, Blucklr Southluand Oil, Division ofq .ohawk alley Oil. Inc.. 210 NLRH 1060 (1974). cited by Respondent. is not pposite here because, as the Hoard found there, the parties had not reached a meeting of the minds i the stipulation as to the composition of the itit anid the Board directed the regional director to assist the parties in reaching an agreement (on the unlit or, in the absence of a nevu stipulation, o set the uit issue dovs n for hearing. found, as recommended by the hearing officer, that the five challenged voters whom Respondent called motor route carriers were employees and not independent con- tractors as Respondent claimed. In pursuing its appeals to the Board from the hearing officer's recommendation, and the later tally of revised ballots, Respondent also argued that even if the motor route carriers were em- ployees they did not share a community of interest with the other employees of the unit and were not properly in the circulation department unit. However, the Board did not find merit in that contention. By directing that the challenged ballots be opened and counted with those of the other unit employees, and later issuing the Certifica- tion of Representative based on the revised tally, the Board found that the motor route carriers shared a com- munity of interest with the other employees of the unit. 2. In its brief to me, Respondent raises for the first time in this long litigation another contention affecting the preelection stipulation of June 4, 1974. The stipulated unit, for which the election was held and for which the Union was later certified as bargaining representative, expressly included district advisors among the unit employees. Notwithstanding this stipulation, and the absence of any challenge of district advisors voting in the election or any intimation by Respondent in its postelection ob- jections and appeals to the Board that it impugned or re- pudiated the stipulation or the employee status of district advisors, Respondent now contends for the first time that district advisors were either supervisors or managerial employees whose inclusion in the stipulated unit made the unit inappropriate for collective bargaining. In the conduct of the hearing before me, Respondent introduced, through Circulation Director Van Dalen, evidence concerning the district advisors, but the thrust was to show that, by September 1977, Respondent had replaced the part-time district advisors with a lesser number of full-time "district sales representatives." How- ever, as Van Dalen testified, the district sales representa- tives perform essentially the same functions performed by the district advisors; namely, recruit, train, and re- place when necessary the schoolboy and schoolgirl carri- ers (who effectuate the newspaper home deliveries), make the collections from such youngster carriers, and service the customers. Van Dalen testified that the dis- trict sales representatives also replaced the three or four district managers whom Respondent also phased out by September 1977. This was partly true, to the extent that district managers and district advisors performed similar functions in recruiting, training, and replacing youngster carriers and encouraging them to promote newspaper sales (see descriptions of functions, Resp. Exh. 8, district advisors, Resp. Exh. 9, district managers). However, the district sales representatives did not absorb the supervi- sory functions of the district managers, who directly su- pervised the district advisors (G.C. Exh. 1, 1-10) and di- rectly supervised the motor route carriers (G.C. Exh. 1, 1-18), now called delivery contract holders and now su- pervised by the contract holder coordinator of the circu- lation department. 742 DRUKKER COMMUNICATI()NS, INC Thus the district advisors and their nominal successors, the district sales representatives, were not and are not su- pervisors. Circulation Director Van Dalen's testimony supported the conclusion. Among other things, he point- ed out that no employees reported to or report to the district advisors or the district sales representatives, only the youngster carriers have been reporting to them. And Respondent and the Union have been in agreement from the outset that the youngster carriers are not employees within the meaning of the Act (testimony of their respec- tive lawyers, Hamburger and Parsonnet). Hence, if Respondent's contention respecting district advisors has any standing at this late date, it resolves down to a question of whether the district advisors were managerial employees. Unlike supervisors, who are expressly excluded from coverage by the Act itself, managerial employees have been held not covered by the Act as the result of Board construction of the Act, with court approval, N.L.R.B. v. Bell Aerospace Company. Division of Textron, 416 U.S. 267, 285-289 (1974). Managerial employees are those who make and imple- ment significant management policy and those who have discretion in important matters independent of estab- lished policy. Considered on the merits, the duties and functions of district advisors did not rise to this level. Their recruiting and training of the schoolboy and schoolgirl carriers, the making of collections from the carriers, and the handling of customer complaints and in- quiries were along lines of policy established for them, subject to supervision and guidance of their supervisors, the district managers. In most respects the district advi- sors engaged in the performance of routine work. On the issue of community of interest, the interest of the district advisors was more closely allied to the circu- lation department employees than to management. In that connection, Respondent was of a similar view when it stipulated prior to the election that the district advisors were part of the unit of circulation department employ- ees. Respondent's view continued unchanged in the inter- vening years and litigation until it filed the post-trial brief in the refusal-to-bargain case at bar. This history leads to a further consideration that may be as compelling as the merits or demerits of Respond- ent's argument. In N.L.R.B. v. A. J. Tower Co., 329 U.S. 324 (1946), the Supreme Court upheld the propriety of the Board election procedure of refusing to accept an employer's postelection challenge to the eligibility of voters in a consent election after the results of the elec- tion had been announced, even where it was subsequent- ly ascertainable that some of the votes cast were in fact ineligibile and the result of the election might have been different had the truth been known. The Court found that the Board rule was in keeping with congressional intent and followed the common protective device of po- litical elections to require that challenges to eligibility of voters be made prior to actual casting of ballots, so that uncontested votes are given absolute finality. In support- ing the Board policy excluding the postelection chal- lenges the Court noted, as did the Board, that otherwise a consent election could be converted from a definitive resolution of preference into a protracted resolution of objections purposely disregarded or suppressed against the contingency of an adverse result. Based upon appli- cation of the Board rule, the Court sustained an 8(a)(5) violation of a refusal by the employer to bargain. In applying its postelection rule and the A. J. Tower decision, the Board went through two phases of holdings where the issue related to the inclusion in units of al- leged supervisory employees. The earlier cases held firm on the inviolability of the unit stipulation whether there \were no challenges at the election of the individuals said to be supervisors in spite of the stipulation, as. for exam- ple, in General Steel Tank Company, 111 NLRB 222, 224 (1955), and in Sears Roebuck and Co., 114 NLRB 762 (1955), or even where there were challenges at the elec- tion, as in Cruis Along Boats, Inc.. 128 NLRB 1019 (1960). Thereafter. in Lake Huron Broadcasting Corpora- tion, 130 NLRB 908, 909 (1961), the Board began to veer away from inviolability of the preelection stipulation. holding that Cruis Along, supra, applied only to stipula- tions as to unit placements of alleged supervisors made at a preelection representation hearing but not to such stip- ulations growing out of an informal conference in a con- sent election case, therefore permitting investigation of and decision on the supervisory status of the challenged individuals. ' The Board moved even further in Times- World Corporation, 151 NLRB 947, 948 (1965), holding that although the ballots of alleged supervisors in a con- sent election were not challenged at the election (as they were in Lake Huron. supra) their status could be chal- lenged thereafter by a motion to clarify certification, in- asmuch as the inclusion of a supervisor in the unit would contravene the Act. Thus the rationale for going behind the preelection stipulation of the parties respecting the composition of the unit where supervisors are in issue appears to be the statutory prohibition against their inclusion. It is not clear that this same rationale applies where managerial employees are in issue. In .V.L.R.B. v. Mike O'Connor Chevrolet-Buick-GMC Co.. Inc., and Pat O'Con- nor Chevrolet-Buick-GMC Co.. Inc., 512 F.2d 684, 687 (8th Cir. 1975), observing that the managerial employee exclusion is not statutory but "a creature of the Board," and that the Board decides whether an employee is a manager on a case-by-case basis testing whether the em- ployee's interests are more clearly allied with unit em- ployees or with management, the court held that the preelection stipulation, entered in good faith, with the parties agreeing on the status of each individual as an I However. in the later case, Laymon Cuandy Ctinpunv. 199 NI.RH 547 11972). four of the fie members of the Board indicated disenchantment W ith the distinction of giving finalit~ onl1 to the preelectin tipulalilon arrl.ed at during a hearing and not io one aigreed upton at all informal conference The four split. hosweser. .embers P'ennclio and Kennedx s.,ting Ilo honor the stipulation and. in effect. It restore the in il;ahilit% of sitipulations arrived at in preelecton inl irmal confrence', as s ell as at hearing. then Chairman Miller and Mmher Jenkin, agreeing thal II should not matter \% hether tIhC ipula;llon ras, reached at preclectill on- ference or hearing. rather its language should he deternlnat;le. hut find- ing the lanlguage here lacking i tipulation as t duties and aulthoritt comparahle to the stiptulatllon in 'rul l-I/onlv. xupra The\ therefore r oted \sil then Member tlltiitg ssho found it unneccssair to distliguish ('ruit I/inlg s1iC 1 he %s ould not regard the 1t3,ard bhitll 'li a stlper s i l i11LIU h tiClhter tIhet ip atol lli lihrte r here 743 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee without suggestion that either side considered the later challenged employee to be a manager, was not contrary to the Act or established Board policy and re- quired that the Board give effect to the stipulation. The court remanded the case to the Board with directions to count the ballot of the disputed employee. In 220 NLRB 808 (1975). the Board accepted the remand and treated the court's decision as the law of the case, ordering the opening and counting of the ballot. From the foregoing analysis, it would appear that whether considered on the merits, or on procedural grounds as well. there is no basis for honoring Respond- ent's newly raised contention that the district advisors were managerial employees improperly included in the unit. "' E. The Circulation Department As noted in sec. A, above, at the time of the election on June 21, 1974, the nonsupervisory employees of the circulation department unit comprised four categories of employees: (I) district advisors, who recruited and trained the youngster home delivery carriers and handled their collections and customer complaints; (2) mail clerks, who rolled, packaged, and labeled newspapers for postal delivery;" (3) mailroom helpers, who assembled, bundled, and labeled newspapers for motor vehicle distri- bution or delivery; and (4) the drivers, who distributed for delivery or delivered newspapers, either by compa- ny-owned motor vehicles or by non-company-owned motor vehicles. The group of drivers who operated non- company-owned motor vehicles were labeled motor route carriers by Respondent at and after the election when it challenged and contested their eligibility to vote. Notwithstanding Respondent's contention that the motor route carriers were independent contractors, as a result of a postelection hearing and Board review, the motor route carriers were found to be employees and part of the circulation department unit. In Respondent's preelection list of employees eligibile to vote (Resp. Exh. 5), Respondent listed by name 25 employees comprising 13 district advisors, 5 mailroom helpers, I mail clerk, and 6 drivers. Concerning the 5 motor route carriers who voted, Respondent asserted in the June 10, 1975, postelection hearing that at the time of the election, I year earlier, there was a total of 14 such carriers who drove for Respondent (testimony of then Circulation Department Director Hutchings, Resp. Exh. 11). Following Board certification of the unit and the first meeting between the Union and Respondent's representa- tives for collective bargaining held on October 21, 1976, pursuant to the Union's request, Respondent provided a list, dated October 22, 1976 (G.C. Exh. 1, 1-29), of those it then considered to be employees in the circulation de- partment unit, naming 24 employees, comprising 4 mail- "' And see sec. 1. irJru. where it appears hal the recent successors of the district advisors. the district sales representatives. who perform the same functions as their predecessors. are likewise emoloyes vithir the meaning of the Act who share a community of interest with Ihe other unit employees of Ihe circulation department. () Office clerical employees were excluded from the unit by stipulation of the Union and Respoindent room helpers (part time), I mail clerk (full time), II dis- trict advisors (part time), and 8 drivers (4 full time, 4 part time). Respondent also listed 11 "contractors" who engaged in newspaper delivery but whom it did not regard as employees under the Act or the certification. Thus Respondent continued to resist and contest the prior Board decision concerning the motor route carri- ers, but did not challenge other elements of the unit. F. Motor Route Carriers Compared With Delivery Contract Holders Respondent contends that the persons it now classifies as delivery contract holders, see sec. A, above, are more clearly independent contractors than were their prede- cessor motor route carriers. Recalling that the Board held, following the adversary hearing and recommendation of the Hearing Officer, that the motor route carriers were employees, the question boils down to whether the delivery contract holders are any less employees than were the motor route carriers. In that connection, I see no fault in the prior analysis and holding that the motor route carriers were employ- ees (G.C. Exh. I, 1-18). The classic "right of control" test was used in arriving at the result. Thus, where the person for whom the serv- ices are performed retains the right to control the manner and means by which the result is to be accom- plished, the relationship is one of employment. On the other hand, where control is reserved only as to the result sought, the relationship is that of an independent contractor. The test is not mechanically applied, and is applied in the light of the economic realities of the situa- tion, in particular whether the individual has an opportu- nity to make decisions which will affect his profit or loss. It was held that the result to be accomplished by the arrangement between Respondent and the motor route carrier was timely, daily distribution of the newspaper; that, in accomplishing the result, the motor route carrier bore slight resemblance to the independent businessman whose earnings are controlled by self-determined poli- cies, personal investment and expenditure, and market conditions; and that the motor route carrier's opportuni- ties were limited by Respondent's control of essential factors of employment and not by efficiency of the motor route carrier in performing his work. Thus, it was found that, while the motor route carrier could deliver other products or newspapers while servic- ing his route, that would not affect his compensation from Respondent since the amount it paid him was based on mileage and time necessary to service the route. It was further found that he had no proprietary interest in the route that he could sell, since the route and number of customers were determined by Respondent. Although the motor route carrier had some latitude in servicing the route, such as the order of delivery, the paper had to be delivered in time for use as an evening paper, Re- spondent could require use of bags and twine which it supplied, Respondent checked to make sure that com- plaints were taken care of, and the arrangement of the motor route carrier (who had no written agreement) was 744 DRUKKER COMMUNICATIONS. INC. terminable at will. While there were factors present that might indicate an independent contractor relationship, such as that the motor route carrier used his own motor vehicle, did not receive fringe benefits, was not subjected to usual payroll deductions, and could find a replacement when unable to service his route, it was found that those factors were not uncommon in or inconsistent with an employee relationship. Accordingly, it was held that Re- spondent retained control not only of the result but also of the manner in which the result was accomplished, and that because of this control motor route carriers exer- cised little if any independent judgment that could affect their profit and loss, and were unit employees eligible to vote. As Circulation Director Van Dalen testified, a deliv- ery contract holder performs the same function that was performed by a motor route carrier of delivering The Daily Advance on a daily basis, by non-company-owned vehicle usually his own, to the homes of customers, gen- erally in the remote areas (remote from Dover), and dropping off bundles of The Daily Advance for carriers, stores, or vending machines in the area assigned by Re- spondent to the delivery contract holder or en route to such area. Like the motor route carrier, the delivery contract holder deals with a supervisor in the circulation department on problems or seeking assistance. For a motor route carrier the supervisor was the district man- ager. For a delivery contract holder the supervisor is the contract holder coordinator. In this connection, the con- tract holder coordinator obtains assurances in advance of taking on a delivery contract holder that he can perform the expected deliveries, and that the delivery contract holder will accept new subscriptions. The contract holder coordinator provides the new delivery contract holder with training and orientation. There is the same obligation that was laid upon motor route carriers to de- liver the papers in time for evening use by the readers, and Van Dalen noted that some of the contract holders have been admonished for late delivery. Subject to this obligation, the delivery contract holder may determine, as did the motor route carrier, the order in which deliv- ery is made. 2 Customer complaints are put by Respond- ent on memos attached to next day bundles of the deliv- ery contract holder, and the contract holder coordinator follows up to see that the complaints are taken care of. There is the similar obligation that was required of motor route carriers-to place newspapers in bags pro- vided by Respondent in case of inclement weather. The delivery contract holder is under obligation to provide Respondent with up-to-date lists of customers twice a year. This is important to Respondent, said Di- rector Van Dalen, because the figures on the paper's cir- culation are vital to obtaining advertising, and Respond- ent supplies the figures to the Audit Bureau of Circula- tion (ABC), an organization which establishes newspaper circulation figures for the use of advertisers. As in the case of a motor route carrier, a delivery con- tract holder is responsible for his own vehicular ex- penses, may obtain his own relief when necessary or may 2 Director Van Dalen erroneously stated that the motor route carrier did not have this discretion. compare Hearing Officer's report. (.C Exh 1. 1-10. ask Respondent for help. and has no written contract with Respondent; and the relationship between Respond- ent and the delivery contract holder is terminable at will. The one seemingly significant difference between motor route carriers and delivery contract holders is the method of compensation. The motor route carriers were paid a weekly stipend on the basis of the amount of time and mileage required to serve their routes. The delivery contract holders ostensibly purchase their newspapers from Respondent and bill and retain the money collected from customers; however, Respondent still assigns the particular area in which each delivery contract holder delivers, sets the subscription price for customers (to which delivery contract holders may add a small service charge, but have done so only infrequently), and contin- ues to pay to the delivery contract holders a fixed weekly stipend to insure that their routes are profitable. In this regard, Circulation Director Van Dalen testi- fied that payment of the weekly stipend to the delivery contract holders is essential to them since their profit on sales of the paper is insufficient to recover their costs and a net profit, even if Respondent were to give them the papers without charge, or, as is frequently the case, at the minimum charge of I cent per copy. He noted that the paper retailed for 15 cents daily (5 days per week) and 25 cents for Sunday, and pointed out that in some areas served by delivery contract holders even if they were to charge customers $1 or $1.50 per week for the (5-day) daily paper on a I-cent-per-copy cost they would not make sufficient money on sale of the paper to contin- ue the route. He gave an example of one delivery con- tract holder, who delivered 30 to 35 papers per day, at a I-cent-per-paper charge to him, to whom Respondent paid additionally $27 per week. 3 In this connection, Van Dalen pointed out the reason and importance to Respondent in these cases of making the nominal -cent-per-paper charge to delivery contract holders rather than no charge; namely, that in order to claim the deliveries as paid circulation for auditing, and therefore attracting advertisers, Respondent had to have both a wholesale and retail rate under requirements of the Audit Bureau of Circulation. The total testimony illuminates the transparency of the alleged sales for resale to delivery contract holders and indicates that Respondent was simply using retention of collections by these drivers as a method of partial recom- pense which, together with a fixed weekly stipend, pro- vides total compensation for their deliveries, in place of simply the weekly sums previously paid to the predeces- sor motor route carriers. The delivery contract holders were no more independent businessmen and women in performing their function for Respondent than were the motor route carriers. In my view, the change of name and method of compensation was purely cosmetic and did not substantively alter the employer-employee rela- I Circulatil)n Director V an alien testified that there is i paroll FI r stipends paid to deliver) contract holders hich hle appro,ss, justl as he approes the pamyroll that cosers such clTiplIosec as the sals Ill.lleager. contract hollder coordinator. district Sales represelllninltl . ricrlclli. all)d oither oif he cilrc.lation lcp;lrtinnlcnl 745 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tionship between Respondent and its drivers of non-com- pany-owned motor vehicles. In Eureka Newspapers, Inc., 154 NLRB 1181, 1184-85 (1965), the Board held that a self-styled independent con- tractor arrangement between the newspaper publisher and dealers, for sale of the papers to the dealers for dis- tribution and resale to the general public, was an em- ployer-employee relationship, and the dealers were not independent contractors by virtue of controls retained by the publisher over the dealers in accomplishing the circu- lation of the newspaper. In San Antonio Light Division, Hearst Consolidated Publications. Inc., 130 NLRB 619, 624 (1961), it was held that newspaper route dealers who distributed papers under a sale and resale arrangement were no less employees by reason of the fact that their compensation was determined by offsetting the spread between their purchase and selling prices against their operating costs. " G. Hauling Contract Holders Starting in 1977, Respondent added another classifica- tion of drivers, whom it called hauling contract holders, to take over or to supplement deliveries of The Daily Advance by its drivers of company-owned vehicles and, to a lesser extent, deliveries by the drivers of non-compa- ny-owned vehicles, the motor route carriers now called delivery contract holders. At the time of hearing, according to Circulation Man- ager Van Dalen, there was five or six hauling contract holders. Like the delivery contract holders, the hauling contract holders drive non-company-owned vehicles, usually their own (frequently station wagon or van), to deliver mostly bundles of the newspapers (the principal function of the drivers of company-owned vehicles), gen- erally in areas away from the heart of the circulation market to stores or to drops for pickup by youngster car- riers, and to deliver some single copies of the newspaper to individual subscribers in the area. Thus, as Van Dalen testified, the delivery contract holders are performing some of the work previously done by the drivers of the company-owned vehicles, namely, the delivery of bun- dles, and some of the work previously done by the motor route carriers, namely, the delivery of single copies. The difference between the motor route carriers, now delivery contract holders, and hauling contract holders, he said, is that hauling contract holders do more bundle deliveries and only some of the single copy deliv- eries, whereas the motor route carriers, now delivery route carriers, do more single copy deliveries and only some bundle deliveries. Respondent determines the customers and the number of papers (the "draw") for the bundles or singles deliv- ered by the hauling contract holders, and also for the " Cases such as L Vga. Sun, Inc., 219 NLR 8X89 (1975), finding independent contraclor status. and cases following it. cited hy Respond- elit, are distinguishable from tihe case at bar on the fact., and reliance placed on differences, such as. in the case of te hont delicry dealers. whoi bought and resold the newspapers and whose income as rot nor- mally supplemented by subsidies, bonuses, and he like. concllcrnig w horm the Hoard fi umd. "Th us it is clear that a dealer's income is based on he difference between the price at which he sells the papers, less the price he pays the Company for the paper, and the labor costs and los,ses - curred." 219 N.lRB at 891. adding of new deliveries, according to Van Dalen. Haul- ing contract holders are paid a negotiated sum per week by Respondent, said Van Dalen, the factors being, on the one side, Respondent's knowledge of what it would cost it using its own vehicle and employee to effect delivery, and, on the other side, the hauling contract holder's knowledge of expenses in operating his own vehicle and what he wants to earn for his work. Van Dalen gave as an example the rate he negotiated in 1977 with hauling contract holder Eric Schmidt, who was engaged for de- liveries in an area of Sussex County, at $132 per week. The weekly stipend may be renegotiated for additional deliveries, as in the case of hauling contract holder Bob Stell, who was paid a $90-per-week stipend, which was renegotiated by Van Dalen to $105 per week to take care of an additional two bundles and some individual subscriber deliveries, or as was done generally when the new Sunday edition was introduced in March 1978. The hauling contract holders do not purchase the newspapers, said Circulation Manager Van Dalen, but some of them are requested to bill and collect for their deliveries to a store or subscriber and keep the collection plus a stipend from Respondent as total weekly pay. Hauling contract holders work with the mailroom, which provides them assistance in loading, and look to the mailroom supervisor or assistant supervisor, or the Roxbury plant supervisor, Drukker, for help on problems or questions encountered. Respondent instructs its youngster carriers to call in their complaints or problems if they are not getting papers on time or sufficient papers to make timely deliveries, and Respondent contacts the hauling contract holders on the complaints. Hauling contract holders are given advance orientation concerning bundles, singles, and locations, and initial as- sistance by the mailroom supervisor or assistant supervi- sor in finding places and locating their drops (though they may vary the order of delivery); are given instruc- tions on the necessity for timely deliveries to stores, drops, and individual subscribers; and are supplied, with- out cost, bundle bags and individual bags for protection of papers, and directed to use them for such protection. When youngster carriers report that papers received are damaged or wet or short in number, Respondent replaces the papers or absorbs the cost of damage without charge to the hauling contract holders. Hauling contract holders are required to supply Respondent with their lists of cus- tomers twice a year. Hauling contract holders have no written agreements, and have only oral arrangements, with Respondent, and the arrangements are terminable at will. Van Dalen testi- fied that in connection with hiring hauling contract hold- ers they have been asked to give reasonable notice to Respondent if they should decide to terminate. In my view, the hauling contract holders are employ- ees of Respondent, as are the drivers of Respondent's motor vehicles and the motor route carriers, whose com- bined work they supplement or have partially supplant- ed. The hauling contract holders are not independent '' Circullationl Director Vanil Dalenl testified that there were four or ivse lris cr of the comnpan) -or ned motor sehicles tthe time (of hearing. op- (Cntinued 746 DRUKKER COMMUNICATIONS. INC. businessmen whose earnings are controlled by self-deter- mined policies. Rather, their earnings are limited by Re- spondent's control of the essential factors of employ- ment, they are subject to Respondent's direction in method as well as result of performance, and the rela- tionship is terminable at will. H. Mailroom Helpers and Mail Clerks Both classifications of employees-mailroom helpers and mail clerks-were specifically recognized by Re- spondent and the Union in their preelection stipulation as employees of the circulation department, eligible to vote, and by the Board in the postelection certification as part of the bargaining unit. Other than the mailroom supervi- sor and assistant supervisor, mailroom helpers and a mail clerk were the only bargaining unit employees in the mailroom at Dover in 1974 at the time of the election and thereafter until the partial move of the circulation department, namely, the mailroom, to Roxbury in April 1975. As indicated in section A, above, when the mail- room was moved to Roxbury the mailroom helpers and their two supervisors were moved with it from Dover, but the one mail clerk, Bernice Ward, remained on at Dover. Circulation Manager Van Dalen's testimony, as de- scribed in section A, above, established that, at Roxbury, the mailroom helpers continued to perform the same function of assembly and bundling of the printed newspa- pers for distribution and approximately the same physical handling operations, except some of such operations were reduced or partly eliminated by more sophisticated machinery introduced at Roxbury for counting, stacking, and moving bundles. The testimony also established that, although more mailroom helpers were needed and gradu- ally added, not only to handle assembling and dispatch- ing of The Daily Advance, which began a Sunday edi- tion in 1978, but also others of Respondent's newspapers, each of the mailroom helpers interchangeably performed the same functions and none was obliged to learn or assume any new operating functions in regard to the new automatic machinery. The mailroom was moved from Dover to Roxbury as a unit with its two in-room immediate supervisors and the mailroom helpers. It continued its identity as part of the circulation department headquartered at Dover and received its top supervision and management from Dover by and through Circulation Manager Van Dalen and the newspaper's general manager. Even with the ad- dition in March or April 1978 of a new Roxbury plant supervisor, Dick Drukker, the identity of the mailroom was kept separate from and not merged with the produc- tion department's pressroom unit, which had also been moved from Dover to Roxbury. The identity of the mailroom with, and its supervision by, the circulation de- partment has been maintained, notwithstanding the inser- tion of Plant Supervisor Drukker as an additional super- erating four or five vans or station wagons,. shereas previousl, there had been six such vehicles. hut because of the cost fr replacing '.chiclcs the decision had been made to hire hauling contract holders to do part of the distribution The drivers of the company-ou.wned motor ehicles are subh- ject to the same supervision of the mailroom supers isors as are the haul- ing contract holders visor intermediate between the in-mailroom supervisors and the Dover headquarters. The recent naming of the mailroom as the "distribution department" was not ac- companied by any change in its function or connection with the circulation department. Of course, the motor vehicle drivers (of both company and personally owned vehicles) normally make their pickups at the mailroom, where the papers are bundled for them for delivery, although some have arranged to make their pickups at Dover. However, the mail clerk, Bernice Ward, was not moved with the mailroom to Roxbury but remained in the circulation department headquarters at Dover where she has continued to label and mail the individual papers to the mail subscribers of the newspaper. She also spends half of her time on circu- lation department clerical work. Respondent moved the mailroom from Dover to Rox- bury without notifying the Union of the move or con- sulting with the Union concerning the move or its effect upon bargaining unit employees. (This failure to give notice and consult was typical of the other unilateral changes by Respondent relating to the circulation depart- ment unit employees, described elsewhere in this Deci- sion: the effect of such failure is dealt with separately, infra. ) Nonetheless, Respondent argues that the move of the mailroom from Dover to Roxbury and the subsequent in- crease in the number of mailroom helpers has taken the mailroom helpers out of the bargaining unit and made the certified unit inappropriate. The Board has held that the relocation of an employ- er's operations does not change the nature of the em- ploying enterprise and the bargaining unit based upon it, where the operations at the new location, as here, are a continuation of those conducted at the prior location. Republic Engraving ad Designing Company. A Division of Nutter. Inc., and Siwift Graphics. A Division of Congdon & Chrome, 236 NLRB 1150 (1978); Mass. Machine & Stamping. Inc. (Formerly Massachusetts Machine Shop. Inc.), 231 NLRB 801, 802 (1977). The move of the mail- room here left its operation, job structure, and function, and the relation to the circulation department, intact. The replacement of equipment, had it occurred at the old plant, would not have changed the bargaining unit, and has no more effect in changing the unit because it took place at the new plant, International Paper Compa- ny, 150 NLRB 1252, 1259 (1965). Morover, the certified Union is entitled to the pre- sumption of continuing majority status which is not re- butted by turnover or increase in size of the work force alone, since there is also a presumption that new employ- ees will support the union in the same proportion as the previous employee complement, M.Uass. Machine & Stamp- ing. Inc.. supra. 231 NLRB at 802; King Radio Corpora- tion, Inc., 208 NLRB 578, 583 (1974); Laystrom Manufac- turing Co., 151 NLRB 1482, 1484-85 (1965). Respondent produced no evidence to rebut the presumption, indeed. offered no evidence to establish that any employees, new or old, no longer wished to be represented by the Union. See Laystrom Manrufucruring Co.. supra, 151 NLRB at 1485. 747 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regarding mail clerk Bernice Ward who, as such, has been part of the bargaining unit, and remained at Dover, Respondent contends that as a result of the move of the mailroom to Roxbury she became exclusively a clerical employee and therefore was excluded from the bargain- ing unit. This is plainly not so. Circulation Director Van Dalen's testimony established (see sec. A, above) that Ward has continued to function as the mail clerk of the circulation department for 50 percent of her time but also spends 50 percent of her time doing clerical work of the department. As a dual-function employee, Ward is still included in the unit, even if she spends less than a majority of her time in unit work, because she spends sufficient periods of time on unit work to demonstrate that she has a substantial interest in working conditions in the unit. Berea Publishing Company, 140 NLRB 516, 519 (1963); R.P.B., Inc., d/b/a Royal Communicating Graphics, 176 NLRB 163, 164 (1969). Notwithstanding the move of the mailroom to Rox- bury, the mailroom helpers remain appropriately part of the unit of the circulation department employees;6 and notwithstanding the assumption by the mail clerk of some non-unit duties in addition to her unit duties in the circulation department, the mail clerk remains appropri- ately part of the unit of the circulation department em- ployees. 1. District Sales Representatives, Formerly District Advisors As already discussed in section D, above, Conclusion 2, the stipulated bargaining unit included district advi- sors, the Board certification of September 7, 1976, in- cluded district advisors and, in the aborted "bargaining" sessions that followed in October 1976 and January 1977, Respondent agreed that the district advisors were a part of the limited unit which it was willing to acknowledge, and identified by name 11 such district advisors (G.C. Exh. 1, 1-29). As further discussed, starting thereafter in 1977 and concluding in about September 1977, Respondent re- placed the district advisors, who were all part-time em- ployees, with a lesser number of full time employees whom it called "district sales representatives." At the time of hearing there were five such district sales repre- sentatives, according to Circulation Director Van Dalen. As already analyzed, the district sales representatives performed the same function as the district advisors; namely, recruiting, training, and making collections from the youngster carriers, servicing customers, and encour- aging the youngster carriers to promote newspaper sales. The district sales representatives were neither supervi- sors nor managerial employees. The jobs of the three former supervisors, the district managers, were abol- ished, and consolidated in one supervisor, a sales man- 'The argument by Respondent that the Board's certification, identify- ing the unit as the circulation department employees at the employer's Dover facility, was intended to exclude employees who were moved by Respondent to the new Roxbury facility is without substance. see fn. 5. 'upra, and sec. J. infra. There was nothing in this ordinary identification of geographical location to indicate that the Board was deliberately elimi- nating application of the cited principles it has evolved fir dealing with relocation of all or part of a bargaining unit ager, who, under Circulation Director Van Dalen, super- vises the district sales representatives' operation.'7 The district sales representatives continue to enjoy the same community of interest with the other unit employees as did their predecessors, the district advisors, undiminished by the change in title and, more likely, strengthened by making the job full-time work. The district sales repre- sentatives were and are appropriately members of the bargaining unit. J. Section 8(a)(5) and (1): Refusal To Bargain Respondent has urged that the unilateral changes it wrought in the composition or styling or location of the several segments of the bargaining unit since the election, and indeed since the certification, have made the unit, and therefore the Union's request to bargain for it, inap- propriate. As reviewed in the previous sections none of these changes has had such material effect. As analyzed in section H, above, the change in loca- tion of the mailroom portion of the circulation depar- ment from Dover to nearby Roxbury, taking with it the mailroom helpers and the initial loading point for drivers of company or personally owned motor vehicles engaged in the delivery system, was a continuation of the business operation that did not change the nature of Respondent's enterprise or the bargaining unit based on it. The obliga- tion of the Employer to bargain with the certified Union was not abrogated by this partial relocation, or by the later increase in the number of mailroom helpers, see cases cited in section H, above, and see also General Electric Company, 186 NLRB 289, 293 (1970), holding that the naming of the location of an employer's plant in a Board certification is merely for purposes of identifica- tion; that if the obligation of the employer to bargain with the union was dependent on the employer remain- ing at the plant location named in the certification with the original personnel of the unit, the employer would have it within his power to vitiate the certification at will by moving his plant to another location and chang- ing the personnel of the unit; but that such a circumven- tion is not within the intent of the Act. Respondent's contention that the Union's request for bargaining included nonemployees was not valid. The contention related to the drivers of non-company-owned motor vehicles who were part of the newspaper delivery system and who Respondent contended were independ- ent contractors. Before and after certification, until ap- proximately the time of the aborted bargaining sessions, Respondent called them motor route carriers. Following an adversary hearing before certification, the Board found the motor route carriers to be employees, with good reason, see section F, above. Since the refusal to bargain, Respondent has replaced the motor route carri- ers and some drivers of company-owned vehicles with drivers of non-company-owned vehicles whom it now calls delivery contract holders and hauling contract holders. As analyzed in sections F and G, above, these 7 The sales manager also has telephone solicitatiln of newspaper sub- scriplions under his supervision. but that work is perfiormed by a tele- phone soliciting olrganllier 748 DRUKKER COMMUNICATIONS, INC. two classes of drivers are employees and not independent contractors. Respondent's claim that it abolished the mail clerk's position was not true. The mail clerk has been given ad- ditional nonunit clerical functions but as a dual function employee remains a part of the bargaining unit. At the time of the election, certification, and aborted bargaining sessions, district advisors, who were part-time employees, were concededly unit employees. Respondent has since replaced them with a lesser number of district sales representatives who, on a full-time basis, perform the same work of recruiting, training, and collecting from the youngster carriers, and servicing the customers. As analyzed and determined in sections D and I, above, the district sales representatives are unit employees. It follows that Respondent's refusal to bargain with the Union as the certified representative of the bargain- ing unit of circulation department employees on October 21, 1976, and January 3, 1977, and continuing since then, has been in breach of Respondent's duty to bargain in good faith, pursuant to Section 8(d) of the Act, and in violation of Section 8(a)(5) and (1) of the Act. K. Section 8(a)(5) and (1); Unilateral Changes As previously observed Respondent's major defense against the refusal-to-bargain allegations, which as found in section J, above, were 8(a)(5) and (1) violations, rested on changes relating to the bargaining unit made unilater- ally by Respondent. The changes were made without notice to, or consultation or bargaining with, the Union about them or their effects on bargaining unit employees. The nature of these changes (already dealt with) and their institution and completion by Respondent without notice to or consultation or bargaining with the Union, but made (in most instances) directly and individually with unit employees, was unfolded point by point in the testimony of Respondent Circulation Director Van Dalen. Van Dalen testified that he directly participated in most of the changes, including individual discussions with persons affected, and that he was aware of the others in which he had not directly participated; that there were no notices to, or discussions with, the Union and union participation concerning changes in any cases in which he directly participated, nor did he know of any notice to, or discussion with, the Union or of union participation in the other cases. Two of such changes were the renaming and gradual replacement of drivers of non-company-owned motor ve- hicles, formerly labeled by Respondent as motor route carriers, with drivers of like equipment now labeled de- livery contract holders; and gradual replacement of some (but not all) drivers of company-owned vehicles with drivers of non-company-owned motor vehicles, now called hauling contract holders, including in this group a few of the former motor route carriers. These changes in labels did not emerge until after the Union's attempt to bargain with Respondent was aborted on January 3, 1977. Respondent's written description for the motor route carriers in connection with this meeting was simply "contractors" (G.C. Exh. 1, 1-29) and referred only to the fact that Respondent was selling newspapers to them. This coincided with the testimony of Union Representa- tive Boris, who testified that the only change he heard mentioned at the meeting about motor route carriers was that these drivers were now buying the newspapers from Respondent and, of course, as already described in sec- tion C, above, Respondent refused to bargain for any unit that included the motor route carriers. 's A third such change was the gradual substitution of a lesser number of full-time employees, relabeled district sales representatives, for the part-time district advisors. This occurred wholly in 1977 after the January 3, 1977 meeting (when Respondent had described, in writing, a circulation department unit that included the then 11 dis- trict advisors). A fourth such change related to the physical reloca- tion of the mailroom portion of the circulation depart- ment from Dover to Roxbury. The relocation occurred in mid-1975 before Van Dalen became circulation direc- tor, but (as the union representatives testified concerning this and the later occurring changes) was not the subject of notice to, or consultation or bargaining with, the Union nor were the effects on employees of the reloca- tion or of the introduction of new machinery into the mailroom the subject of any such notice, consultation, or bargaining. A fifth such change was the reduction by half of the unit work of the full-time mail clerk. This occurred sometime after January 3, 1977, since at that time Re- spondent had still listed the mail clerk as a full-time member of the bargaining unit (G.C. Exh. 1, 1-29). Additionally, there were interstitial changes among some of the foregoing group changes, as to which, again, by the testimony of Director Van Dalen, there was no notice to, or consultation or bargaining with, the Union, but instead only direct dealing between Respondent and the individual employees. Identified by Van Dalen were the individual negotiations and agreements for the extra work and compensation for hauling contract holders and delivery contract holders with inauguration of deliveries of the Sunday edition of The Daily Advance on March 5, 1978. Also identified by Van Dalen were instances where he negotiated in mid-1978 increased weekly pay- ments to hauling contract holders, such as Bob Stell, to compensate for additional deliveries assigned to such drivers. Almost all of the described unilateral changes, with the exception of the mid-1975 relocation of the mail- room, were effectuated after the September 7, 1976, Board certification of the Union as bargaining repre- sentative of the unit of circulation department employ- ees; and it appears that the bulk of the changes were made in 1977 and 1978 (after the filing of the Union's re- fusal-to-bargain charge of January 18, 1977) without notice to or knowledge of the Union, as the evidence in- dicated. Amendment of the complaint of February 14, 1977. was permitted during the hearing, following the intro- duction of this evidence, to allege 8(a)(5) and (1) viola- ' When the Union. through Borim. inquired about the poihit! of bargaining for a unit without the motor route carrier%. Replndenll re- plied that aithout them he Union ould not repreent a mailorlt and a lie" election W.ould he necessa;lr 749 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions by Respondent for failure to give notice and bar- gain with the Union over the unilateral changes and for dealing directly and individually concerning them with employees. The amendment was adequately grounded on the general allegations in the Union's charge of January 18, 1977, that the employer interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, since the allegations of unilateral acts of violations were directly related to the specific refusal-to-bargain allegations, iV.L.R.B. v. Central Power & Light Company, 425 F.2d 1318, 1320-21 (5th Cir. 1970), particularly because Respondent's evi- dence of the changes it effected without notice and bar- gaining, that suppposedly eliminated the bargaining unit, was the claimed justification for its overall refusal to bar- gain with the Union, cf. Highland Terrace Convalescent Center, A Wholly Owned Subsidiary of Centennial Villas. Inc., 233 NLRB 87, 88 (1977), and United States Postal Service, 203 NLRB 916, 922, fn. 24 (1973). '9 It is settled that an employer has a duty to give the certified union notice of its intentions or decision to change working conditions, affecting members of the bargaining unit, that are deemed mandatory subjects of bargaining, and to consult and bargain with the union over the proposed changes and over the effects of the proposed changes. This obligation applies equally to a decision to relocate a plant, or part of a plant, Interna- tional Ladies' Garment Workers Union. AFL-CIO [McLoughlin Manufacturing Corporation] v. N.L.R.B., 463 F.2d 907, 917 (D.C. Cir. 1972), as it does to changes in employee status, duties, and compensation; and breach of the obligation, including direct dealing with the employ- ees and bypassing the union, is a violation of Section 8(a)(5) and (1) of the Act. Waiver of the union's bargain- ing rights will not be lightly inferred and has to be clear- ly and unequivocally conveyed by the union to the em- ployer. Silence (where the employer made no proposals to the union) is not a clear and unequivocal manifestation of the union's intent to waive its rights to complain about 8(a)(5) unilateral acts of the employer, Allen W Bird II. Receiver for Caravelle Boat Company, a Corporation, and Caravelle Boat Company, 227 NLRB 1355, 1358 (1977); and suspicion of conjecture cannot take the place of notice, nor is notice of a fait accompli the sort of timely notice upon which a waiver defense may be predicated, International Ladies' Garment Workers Union v. N.L.R.B., supra, 463 F.2d at 918-919. Lastly, to the extent that some of the unilateral changes without notice to and bargaining with the Union, and direct dealings with employees, may have taken place before certification of the Union (September 7, 1976), while the Board was considering the question of representation as a result of the contested election (of June 21, 1974), did not relieve Respondent of the duty to give notice to, and consult and bargain with, the Union ,9 Respondent's contention during hearing that it was entitled to a bill of particulars. befolre defending against the allegations of 8(a)t5) unilateral acts, was specious. Respondent had what was more complete hall a hill. namely, the supporting evidence itself (on the record (almost entirely up- plied by its o(twn witness), and was allowed a substantial adjournment in which to gather and supply any different or ameliorating evidence. which it did not do. concerning changes affecting the unit employees and to refrain from direct employee dealings over the changes. It is established that in effecting such unilateral changes and direct dealings prior to Board certification the em- ployer acts at his peril and risk of having violated Sec- tion 8(a)(5) and (1) of the Act, if the Board certifies the Union as bargaining representative, Laney & Duke Stor- age Warehouse Co., Inc., 151 NLRB 248. 266-267 (1965), enfd. in relevant part 369 F.2d 859, 869 (5th Cir. 1966); Mike O'Connor Chevrolet-Buick-GMC Co., Inc. and Pat O'Connor Chevrolet-Buick-GMC Co.., Inc., 209 NLRB 701, 703-704 (1974), reversed and remanded on other grounds 512 F.2d 684 (8th Cir. 1975); Florida Steel Cor- poration, 235 NLRB 1010 (1978). Respondent has argued that the employer acts at his peril only following a contested election case where he has ostensibly lost the election in the first round, i.e., where the initial count, without challenged ballots or other contest, favored the union; hence, says Respond- ent, in this case, where the election count (without the challenged ballots) was 12 to 10 against the Union, the rule should not apply. There is no basis for such a distinction and it appears to have been rejected in Emily Tweel Jacobs. Russell Jacobs, and Emily Tweel d/b/a L. Tweel Importing Co., 219 NLRB 666, 673 (1975), where the union lost the election by two votes and filed timely objections, and the employer gave the employees a wage increase without notice or bargaining with the union, while the union's objections were under consideration by the Board. The Board found the representation issue in favor of the union and that Section 8(a)(5) and (I) were violated by the unilateral wage increase without bargaining, holding that it was no defense that the employer believed the union's objections would be overruled, and that the uni- lateral action taken while a question of representation ex- isted was unlawful interference with employees' protect- ed rights. Respondent further argues that the statute of limita- tions, Section 10(b) of the Act, bars finding any viola- tions respecting unilateral changes without notice or bar- gaining, prior to the 6 months preceding the filing of the Union's charge of January 18, 1977; namely, prior to July 18, 1976. The only change clearly in that category was the move of the mailroom from Dover to Roxbury, that took place in mid-1975, without notice to, or consul- tation or bargaining with, the Union. 20 However, even with regard to this relocation without notice and bar- gaining, it does not appear that Section 10(b) is a bar to the finding of a violation. The 6-month limitation period of the Act is probably the shortest limitation statute known to the law. Normal- ly, a complaint predicated upon an unfair labor practice !" Internationlal Union Representative oris testified that he first became aware of the move at the end of 1975 or early 1976 after the meove was complete. by reason of his work in representing an affiliated union. Respondent furnished no precise information on the gradual chaligeovers from mtolnr route carriers to delivery contract holders and sotme hauling contract holders. but it was evident from Circulation Direc- tor V'an Dalen'i testimony that the hulk f these took place in 1977 and 1978. is did the other changeovers and relabeling (of circulation depart- nieml unit personnlel. 750 DRUKKER COMMUNICATIONS, INC. that occurred before the 6-month limitation period (namely, 6 months before the filing of the charge) is time-barred, Local Lodge No. 1424. International Associ- ation of Machinists. AFL-CIO [Bryan Manufacturing Company] v. N.L.R.B., 362 U.S. 411, 416-417 (1960). However, Federal limitation statutes are subject to equitable principles, Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232-234 (1959), holding that the lulling of the affected party into a false sense of security tolled the limitation provision of the Federal Employer's Liability Act. Likewise, fraudulent concealment tolls the 6-month limitation of the National Labor Relations Act. Amcar Division. ACF Industries v. A.L.R.B. 592 F.2d 422 (8th Cir. 1979), and see Bryan Manufacturing Company. supra, 362 U.S. at 429, fn. 19; silence, even if not active deceit, may be sufficient to toll the limitation period of the applicable statute, Saylor v. Lindsley. 391 F.2d 965, 970 (2d Cir. 1968); and the 6-month limitation period of the Act does not begin to run until the aggrieved party knew or should have known that his statutory rights were violated Metromedia, Inc.. KMBC-TV v. i.L.R.B., 586 F.2d 1182 (8th Cir. 1978). A further application of equitable principles to limita- tion time appears warranted in this case, where Respond- ent relocated part of the bargaining unit after the elec- tion but more than a year before certification, without notice to, or consulting or bargaining with, the Union, at the peril and risk of having violated Section 8(a)(5) and (I) of the Act if the Board certified the Union as bar- gaining representative. The Board certified the Union on September 7, 1976, but not until such certification could Respondent's prior unilateral act and direct dealings with employees have matured into unfair labor practices, Mike O'Connor Chevrolet-Buick-GMC Co.. supra, 209 NLRB at 703-704, or perhaps more accurately, into causes of charge as unfair labor practices. It took the combination of both the unilateral change and the certification to con- stitute a violation. Until certification, the unilateral change was merely an inchoate violation. The "peril and risk" doctrine of the Board was itself an equitable principle adopted to deter an employer from unilaterally making futile Board issuance of a certifica- tion to a union while a question of representation was pending. As an equitable concomitant, it would appear that the 6-month period of limitations did not start to run against Respondent's unilateral act or acts and direct dealings with employees between the time of the election (June 21, 1974) and the time of the certification (Septem- ber 7, 1976) until the time of certification, which was well within 6 months of the Union's charge of January 18, 1977.21 I find that Respondent by its unilateral actions both before and after certification of the Union as bargaining representative, altering or aimed at altering bargaining unit employee status, pay, location, and other working conditions, without notice to, or consultation or bargain- ing with, the Union concerning the actions or their ef- 21 The Union did not ,aive its right to complain of the unilateral aIcts and direct dealings with employees because there were n noticc. let alone timely notices. or proposals front Respondent. Inerntri rul Lad/.s Garment Union v. V L. R. .. upru. 43 2d at 918- 919: Cruvelih Ror Co.. upra, 227 NLRB at 1358 fects on bargaining unit employees, instead dealing di- rectly with affected employees, constituted violations of Section 8(a)(5) and () of the Act. CONCI USIONS 01 LW I. As certified by the Board, all circulation department employees, including drivers, mail clerks. mailroom help- ers, and district advisors at Respondent's Dover. New Jersey, facility, but excluding all office clerical employ- ees, guards and supervisors as defined in the Act. consti- tuted a unit appropriate for bargaining within the mean- ing of the Act. Within the unit description, drivers em- brace drivers of company-owned and non-company- owned motor vehicles whether described as drivers,. motor route carriers, delivery contract carriers, or haul- ing contract carriers; district advisors embrace district sales representatives; mail clerks embrace those who combine that function with other nonunit work; the mail- room and mailroom helpers embrace the mailroom facili- ty and mailroom helpers located at Respondent's Rox- bury, New Jersey, plant; and, any of the foregoing classi- fications or categories of employees who are stationed at, or report to. or work out of the Roxbury mailroom fa- cility, whether or not identified with the so-called distri- bution department, are embraced within the unit descrip- tion. 2. By refusing to bargain collectively in good faith with the Union, as the certified collective-bargaining rep- resentative of the described bargaining unit, Respondent has engaged in an unfair labor practice within the mean- ing of Section 8(a)(5) and (1) of the Act. 3. By unilateral actions of Respondent, effected both before certification of the Union, while the question of representation was pending before the Board. and after certification, altering or aimed at altering bargaining unit employee status, pay, location, and other working condi- tions, without notice to, or consultation or bargaining with, the Union concerning the actions or their effects upon the unit employees, and dealing instead directly with affected employees, Respondent has engaged in unfair labor practices in further violation of Section 8(a)(5) and (1) of the Act. 4. Respondent's unfair labor practices described in paragraphs 2 and 3, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It will be recommended that Respondent () cease and desist from its unfair labor practices; (2) bargain in good faith with the Union, upon its request, for a collective- bargaining agreement and over the unremedied effects upon bargaining unit employees of its past unilateral ac- tions taken without notice to or bargaining with the Union, and for these purposes the Union shall have at least 1 year of actual bargaining from the date actual bar- gaining commences; 22 and (3) post the notices provided for herein. 2. tar-Ja Poultry C(omtpanv. It.. 136 N R 785, 787 (1962) Respond- cnt is clitled o i1i time redit for the meetings silth the niton of O(to- her 21. 197h. lnid Jantl arl 3. I 197. ind lite I illlCrlll itet ll tini. \1hlch it used for dil;lor purposc i aix oidnic of g lod-. l ilh hairgalillng 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recom- mended: ORDER 2 3 The Respondent, Drukker Communications, Inc., and its wholly owned subsidiary The Daily Advance, Inc., Dover and Roxbury, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing, upon request, to bargain with the Union as the exclusive collective-bargaining representative of the unit of Respondent's circulation department employ- ees described in Conclusion of Law I of this Decision. (b) Refusing, upon request, to bargain with the Union over unremedied effects upon bargaining unit employees of past failures to give notice to, and to consult and bar- gain with, the Union concerning unilateral changes and their effects upon unit employees in status, pay, location, or other working conditions of unit employees. (c) Failing or refusing to notify the Union of any future proposals or actions affecting the status, pay, loca- tion, or other working conditions of unit employees, and to consult and bargain with the Union over such propos- als or actions and over the effects upon unit employees of such proposals or actions, or dealing directly and indi- vidually with the employees concerning such proposals or actions. (d) In any like manner interfering with, restraining, or coercing employees in the exercise of the rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: 23 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, ad all objections thereto shall be deemed waived for all purposes. (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of the above- described unit of circulation department employees, with respect to rates of pay, wages. hours, and other terms and conditions of employment, and, if an agreement is reached, embody such agreement in a written contract. (b) Upon request, bargain collectively with the Union over the unremedied effects upon bargaining unit em- ployees of past unlawful failures to give notice to, and to consult and bargain with, the Union concerning unilater- al changes and their effects upon employees in status, pay, location, or other working conditions of unit em- ployees. (c) Give notice to the Union of, and consult and bar- gain with it concerning, any future proposals or actions affecting the status, pay, location, or other working con- ditions of bargaining unit employees and concerning the effects of such proposals or actions upon unit employees. (d) Post in its Dover and Roxbury plants copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 22 (Newark, New Jersey), after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 752