Los Angeles Express, Inc.

National Labor Relations Board - Board Decisions

Oct 19, 1977

233 N.L.R.B. 63 (N.L.R.B. 1977)

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