Petition — Miscellaneous Drivers & Helpers Union, Local 610 v. Pulitzer Publishing Co.

soto

| Supreme Court, U. $. -

FILED

JUL 24 1980

7 RODAK, JR, CLERS

No, 80-14

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

MISCELLANEOUS DRIVERS and HELPERS UNION, LOCAL 610,

AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD

Or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA,

Petitioner,

Vv.

THE PULITZER PUBLISHING COMPANY,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Harry H. CRAIG

7 North 7th Street

St. Louis, Missouri 63101

(314) 231-1018

Attorney for Petitioner

Of Counsel:

WILEY, CRAIG, ARMBRUSTER,

WILBURN & MILLS

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTION PRESENTED

Whether the Court of Appeals misapprehended and grossly

misapplied the appropriate standard of review of an order of the

National Labor Relations Board.

TABLE OF CONTENTS

Page

Opinions Delivered Below. ...........cccccccsccecss l

pr re er reer re 2

Statutory Provisions Involved ................200055 2

US OE TGS iv. o 50 kx bs 6 000k dares 2

Basis for Federal Jurisdiction in the United States Court

OE FE v5 keh ea iksadicvcastangeeeeaa ee 3

Reasons For Granting The Writ:

The Eighth Circuit Misapprehended And Gross-

ly Misapplied The Substantial Evidence Test Of

Review Of An Order Of The National Labor Rela-

tions Board In Holding That Pulitzer And

Berberich Were Not Joint Employers............ 4

IE ig 555 i iin on eel ahh eee ee 7

Appendix A - Statutes Involved .................065 A-l

Appendix B - Decision of N.L.R.B. Division of

Judges, dated December 19, 1978 ...... A-4

ii

Appendix C - Decision and Order of N.L.R.B., dated

| , Se ee ree oe aire A-19

Appendix D - Opinion of. United States Court of Ap-

peals for the Eighth Circuit ........... A-26

Appendix E - Order of the U.S. Court of Appeals

denying petition for rehearing ......... A-37

TABLE OF AUTHORITIES CITED

Cases:

Boire v. Greyhound Corporation, 376 U.S. 473 (1964) .. 5,6

Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938) 6

Manley Transfer Company v. NLRB, 390 F.2d 777 (8th

SG RUE bco-s-6 o's Novos 06404 see eee 6

NLRB v. C. K. Smith & Co., Inc., 569 F.2d 162 (ist

Se PEE ss dvees & 00k 000s les ek eek eee 5

WM

NLRB v. Checker Cab Co., 367 F.2d 692 (6th Cir. 1966)

NLRB v. Condensor Corporation of America, 128 F.2d

Es ss ska's oo ee deca eka eae 6

NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944) 5

NLRB v. Jewell Smokeless Coal Co., 435 F.2d 1270

EE SEE iin 5 4s bd aka sce ewa een Cha EE eR ae 5

NLRB v. Sweet Lumber Co., 515 F.2d 785 (10th Cir.

oe Oe ek | errr rr 5

Swayne & Hoyt, Ltd., v. United States, 300 U.S. 297

RG Li ok es cu note Cie oo a 6

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). 4,7

ili

Statutes:

IN ss sacar cde roan noN eran as

es ES hve ccc cdededed ave caeewe ines.

BP U.S.C. SISCIAT) ORS) cece eee ceeeeeneerys

te to re

Rule 15(d), Federal Rules of Civil Procedure ..........

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

MISCELLANEOUS Drivers and HELPERS UNION, LOCAL 610,

AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD

Or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA,

Petitioner,

Vv.

THE PULITZER PUBLISHING COMPANY,

and

NATIONAL LABOR RELATIONS BOARD,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Eighth Circuit

Petitioner Miscellaneous Drivers and Helpers Union, Local

610, affiliated with the International Brotherhood of Team-

sters, Chauffers, Warehousemen and Helpers of America,

respectfully prays that a writ of certiorari be issued to review the

judgment and opinion of the United States Court of Appeals

for the Eighth Circuit, reported at 618 F.2d 1275.

OPINIONS DELIVERED BELOW

The opinion of Bruce C. Nasdor, Administrative Law Judge,

National Labor Relations Board, JD-829-78, is dated December

19, 1978 and appears as Appendix B herein. The decision of the

x. pot

National Labor Relations Board is reported officially at 242

N.L.R.B. No. 11 (1979), and appears as Appendix C herein.

The opinion of the United States Court of Appeals for the

Eighth Circuit, is reported officially at 618 F.2d 1275 and ap-

pears as Appendix D herein. The Order of the Eighth Circuit

denying Petitioner’s petition for rehearing has not been official-

ly published and appears as Appendix E herein.

JURISDICTION

The opinion of the Court of Appeals was filed on April 7,

1980. Petitioner’s timely petition for rehearing or, in the alter-

native, for rehearing before the Court en banc, was denied May

6, 1980. This petition for certiorari was filed herein ninety days

of May 6, 1980. The Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutes pertinent to the case are Sections 8(a)(1) and (5)

of the Labor-Management Relations Act, 29 U.S.C. § 158(a)(1)

and (5); and Sections 10(e) and 10(f) of the same Act, 29 U.S.C.

§ 160(e) and (f), all fully set out in Appendix A herein.

STATEMENT OF THE CASE

This was an unfair labor practice case before the National

Labor Relations Board, in which the issue was whether the

Respondent, Pulitzer Publishing Company, was a ‘‘joint

employer’’ with a newspaper delivery service company (Berber-

ich) which employed members of the Petitioner Union. The

Board found that Pulitzer was a joint employer, relying on fac-

tors such as Berberich’s cost-plus contract with Pulitzer, direct

control by Pulitzer supervisors over Berberich drivers, and par-

ticipation by Pulitzer in Berberich’s contract negotiations and

grievances with the Union (A. 21, 23).

aS tes

The Court of Appeals denied enforcement of the Board’s

order. In its opinion, the Court acknowledged the cost-plus con-

tract, the degree of control which Pulitzer supervisors had exer-

cised over Berberich drivers, and the participation by Pulitzer’s

director of labor relations in Berberich’s most recent contract

negotiations with the Union (A. 23). However, the Court ruled

that these facts did not ‘‘warrant the conclusion that Pulitzer

determined labor relations policies and the terms and conditions

of employment for Berberich drivers’’ (A. 34), and that ‘‘[t]he

totality of the relevant evidence in this case does not support the

conclusion that Pulitzer and Berberich are joint employers’’ (A.

36).

BASIS FOR FEDERAL JURISDICTION IN THE

UNITED STATES COURT OF APPEALS

This case was brought before the United States Court of Ap-

peals for the Eighth Circuit by Pulitzer pursuant to Section 10(f)

of the Labor-Management Relations Act, 29 U.S.C. § 160(f),

alleging that it was aggrieved by a final order of the Board. The

Board thereafter petitioned the Court for enforcement of the

Board’s order pursuant to 29 U.S.C. § 160(e). The complete

texts of these statutes are set out in Appendix A herein.

The present Petitioner thereafter moved to intervene in the

proceedings pursuant to Rule 15(d), Federal Rules of Civil Pro-

cedure, and leave was granted by the Court on June 12, 1979.

dd 2 ies

REASONS FOR GRANTING THE WRIT

The Eighth Circuit Misapprehended And Grossly Misapplied

The Substantial Evidence Test Of Review Of An Order Of The

National Labor Relations Board In Holding That Pulitzer And

Berberich Were Not Joint Employers.

Section 10(e) of the Labor-Management Relations Act, as

amended, 29 U.S.C. § 160(e), provides, in pertinent part, that

‘*{t}]he findings of the Board with respect to questions of fact if

supported by subsiantial evidence on the record considered as a

whole shall be conclusive.’’ (emphasis supplied) This standard

of review is commonly referred to as the ‘‘substantial evidence

rule.”’

An Appellate Court’s review of the Board’s findings of fact is

governed by this statute and this Court’s decision in Universal

Camera Corp. v. NLRB, 340 U.S. 474 (1951). In Universal

Camera, Justice Frankfurter, speaking for this Court, reviewed

the legislative history in detail and recognized that the reviewing

court must examine the entire record, including evidence which

militates against the Board’s findings, to determine whether

there is substantial evidence. Justice Frankfurter further ob-

served in the following often quoted statement:

‘*Nor does it [the substantial evidence test] mean that even

as to matters not requiring expertise a court may displace

the Board’s choice between two fairly conflicting views,

even though the court would justifiably have made a dif-

ferent choice had the matter been before it de novo.’’ (at

page 448, emphasis in original)

Justice Frankfurther acknowledged the responsibility of the

Courts of Appeals in reviewing Labor Board decisions, but

added this caveat:

*‘Our power to review the correctness of application of the

present standard ought seldom to be called into action.

Whether on the record as a whole there is substantial

aT

evidence to support agency findings is a question which

Congress has placed in the Courts of Appeals. This Court

will intervene only in what ought to be the rare instance

when the standard appears to have been misapprehended

or grossly misapplied.’’ (at pages 490-491; emphasis

supplied)

Petitioner contends that this is one of those ‘‘rare instances’’

warranting review by this Court because the Eighth Circuit ap-

plied a legal test to an issue which this Court and other Courts

of Appeals have said is a factual issue governed by the substan-

tial evidence rule.

In the case of Boire v. Greyhound Corporation, 376 U.S. 473,

481 (1964), this Court stated that the issue of whether Grey-

hound was a joint employer was a factual issue.' This principle

was subsequently echoed by the Sixth Circuit, NLRB v. Checker

Cab Co., 367 F.2d 692, 698 (1966); the Fourth Circuit, NLRB v.

Jewell Smokeless Coal Co., 435 F.2d 1270, 1271 (1970); the

Tenth Circuit, NLRB v. Sweet Lumber Co., 515 F.2d 785, 793

(1975), cert. den. 423 U.S. 986; and the First Circuit, NLRB v.

C.K. Smith & Co., Inc., 569 F.2d 162, 164 (1977).

Yet the Eighth Circuit expressly chose to interpret the matter

as one of law, rather than fact. Their opinion frames the ques-

tion as follows:

‘*To review whether the Board applied a correct /egal test

in determining that Pulitzer was a joint employer of the

' It should be noted that ‘‘joint employers’ is not defined

anywhere in the Labor-Management Relations Act, 29 U.S.C. § 141 et

seq. Cf. NLRB v. Hearst Publications, Inc., 322 U.S. 111 (1944),

holding that whether or not certain persons were ‘‘employees’’ as

defined in Section 2(3) of the Act was a question of fact to be decided

by the Board. Petitioner contends that construction of a nonstatutory

term such as ‘‘joint employer’’ should, even more so than a statutory

term, be left to the expertise of the agency which engendered it.

a poe

Berberich drivers assigned to the Post Dispatch, we must

first determine what test the Board applied’’ (A. 31; em-

phasis supplied)

In so construing the ultimate issue as one of law, the Court

declined to enforce the Board’s order:

‘‘When in our judgment an erroneous assessment of the

particular facts before the Board has led it to a conclusion

which does not comport with the Jaw, we must set aside the

determination of the Board and deny enforcement of its

order’’ (A. 36; emphasis supplied)

This construction of the ‘‘joint employer’’ issue as one of law

rather than fact is directly contrary to this Court’s decision in

Boire and those of the other Circuits cited. It is the Court of Ap-

peals’ obligation to adopt as conclusive those findings of the

Board which are reasonable and based upon relevant evidence.

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In

applying the substantial evidence standard of review, fairly con-

flicting views and inferences drawn from the evidence must be

resolved in favor of the Board’s findings. Manley Transfer

Company, Inc. v. NLRB, 390 F.2d 777, 778 (8th Cir. 1968);

NLRB vy. Condenser Corporation of America, 128 F.2d 67, 74

(3rd Cir. 1942). Thus, the Board’s inferences from the facts may

not be disturbed by a reviewing court, even though the evidence

is capable of lending itself to different inferences. Swayne &

Hoyt, Ltd. v. United States, 300 U.S. 297, 307 (1937).

The Board’s ultimate conclusion of joint employer status was

drawn from specific and substantial evidentiary facts:

**Respondent’s negotiation of important terms, like fringe

benefits and scheduling - in the context of the cost-plus ar-

rangement and Respondent’s supervisory control over

Berberich’s drivers - establishes Respondent as a joint

employer with Berberich’”’ (A. 23).

Po es

Despite these definite findings, the Court found that this con-

clusion ‘‘does not clearly articulate the standard applied by the

Board or the critical factors it considered in determining

whether a joint employer relationship existed’’ (A. 31).

What the Court did was ignore the Board’s reasonable find-

ings of fact and instead substituted its judgment under the guise

of interpreting a question of law. This was not a case where the

Board misquoted the evidence in the record, or where critical

evidence was improperly admitted or excluded. It was a case

where the substantial established facts were construed by the

Board to reach an yltimate, reasonable, factual finding that

Pulitzer was a joint employer. The finding and the evidence

upon which it was based were clearly articulated in the Board’s

opinion, the Court’s unfounded assertion to the contrary not-

withstanding.

When the Court of Appeals chooses to ignore a factual find-

ing with which it does not agree on the merits and reverses it by

creating and applying its own ‘‘legal test’’, it misapprehends

and grossly misapplies the substantial evidence standard of

review.

CONCLUSION

This Court in Universal Camera declared that it would in-

tervene when the substantial evidence standard appears to have

been misapprehended or grossly misapplied. This is such a case.

For these reasons, the Petitioner respectfully submits that the

foregoing petition for certiorari should be granted.

Respectfully submitted,

HARRY H. CRAIG

7 North 7th Street

St. Louis, Missouri 63101

Of Counsel: (314) 231-1018

WILEY, CRAIG, ARMBRUSTER, Attorney for Petitioner

WILBURN & MILLS

APPENDIX

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APPENDIX A

The text of statutes involved in this case are as follows. All are

part of the Labor-Management Relations Act, as amended, 29

U.S.C. §§ 141-187.

Sections 8(a), (1) and (5) 29 U.S.C. § 158(a) (1) and (5):

**It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section 157 of this title;

(5) to refuse to bargain collectively with the represen-

tatives of his employees, subject to the provisions of Sec-

tion 159(a) of this title.

Section 10(e) and (f), 29 U.S.C. & 160 (e) and (f):

(e) The Board shall have power to petition any court of

appeals of the United States, or if all the courts of appeals

to which application may be made are in vacation, any

district court of the United States, within any circuit or

district, respectively, wherein the unfair labor practice in

question occurred or wherein such person resides or tran-

sacts business, for the enforcement of such order and for

appropriate temporary relief or restraining order, and shall

file in the court the record in the proceedings, as provided

in section 2112 of Title 28. Upon the filing of such petition,

the court shall cause notice thereof to be served upon such

person, and thereupon shall have jurisdiction of the pro-

ceeding and of the question determined therein, and shall

have power to grant such temporary relief or restraining

order as it deems just and proper, and to make and enter a

decree enforcing, modifying, and enforcing as so

modified, or setting aside in whole or in part the order of

the Board. No objection that has not been urged before the

— © po

Board, its member, agent, or agency, shall be considered

by the court, unless the failure or neglect to urge such ob-

jection shall be excused because of extraordinary cir-

cumstances. The findings of the Board with respect to

questions of fact if supported by substantial evidence on

the record considered as a whole shall be conclusive. If

either party shall apply to the court for leave to adduce ad-

ditional evidence and shall show to the satisfaction of the

court that such additional evidence is material and that

there were reasonable grounds for the failure to adduce

such evidence in the hearing vefore the Board, its member,

agent, or agency, the court may order such additional

evidence to be taken before the Board, its member, agent,

or agency, and to be made a part of the record. The Board

may modify its findings as to the facts, or make new

findings by reason of additional evidence so taken and fil-

ed, and it shall file such modified or new findings, which

findings with respet to questions of fact if supported by

substantial evidence on the record considered as a whole

shall be conclusive, and shall file its recommendations, if

any, for the modification or setting aside of its original

order. Upon the filing of the record with it the jurisdiction

of the court shall be exclusive and its judgment and decree

shall be final, except that the same shall be subject to

review by the appropriate United States court of appeals if

application was made to the district court as hereinabove

provided, and by the Supreme Court of the United States

upon writ of ceriorari or certification as provided in sec-

tion 1254 of Title 28.

(f) Any person aggrieved by a final order of the Board

granting or denying in whole or in part the relief sought

may obtain a review of such order in any United States

court of appeals in the circuit wherein the unfair labor

practice in question was alleged to have been engaged in or

wherein such person resides or transacts business, or in the

SS yee

United States Court of Appeals for the District of Colum-

bia, by filing in such a court a written petition praying that

the order of the Board be modified or set aside. A copy of

such petition shall be forthwith transmitted by the clerk of

the court to the Board, and thereupon the aggrieved party

shall file in the court the record in the proceeding, certified

by the Board, as provided in section 2112 of Title 28. Upon

the filing of such petition, the court shall proceed in the

same manner as in the case of an application by the Board

under subsection (e) of this section, and shall have the

same jurisdiction to grant to the Board such temporary

relief or restraining order as it deems just and proper, and

in like manner to make and enter a decree enforcing, modi-

fying, and enforcing as so modified, or setting aside in

whole or in part the order of the Board; the findings of the

Board with respect to questions of fact if supported by

substantial evidence on the record considered as a whole

shall in like manner be conclusive.

— =<

APPENDIX B

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

Case No. 14-CA-11019

The Pulitzer Publishing Company

and

Miscellaneous Drivers and Helpers Union, Local 610,

affiliated with International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America

and

Elsie Berberich and Wilbert W. Berberich

d/b/a Berberich’s Delivery Co., A Partnership

Party in Interest

Jeffrey E. Hartnett, Esq.,

of St. Louis, MO, for the General Counsel.

Clyde E. Craig, Esq.,

of St. Louis, MO, for the Charging Party.

Michael J. Rybicki, Esq., and David Bennett Ross, Esq.,

for the Respondent.

H. Kent Munson, Esq.,

for the Party in Interest

DECISION

Statement of the Case

BRUCE C. NASDOR, Administrative Law Judge: This case

was tried at St. Louis, Missouri, on June 5, 6 and 7, 1978. The

charge in this proceeding was filed by Miscellaneous Drivers and

Helpers Union, Local 610, affiliated with International

—

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, hereinafter called the Union, on December

23, 1977. The complaint in this matter issued on May 9, 1978.

The complaint alleges that since December 8, 1977, The Pulitzer

Publishing Company, hereinafter referred to as Respondent,

violated Sections 8(a)(1) and (5) of the Act by refusing to

recognize and/or participate in collective-bargaining with the

Union concerning proposed changes in the methods by which

the delivering of newspapers was to be accomplished. The issue,

a legal one, is whether the Respondent is a joint employer of a

unit of employees employed by Berberich Delivery Company,

hereinafter referred to as Berberich. If such a joint-employer

relationship exists then Respondent is legally obligated to

bargain in good faith with the Union.

Upon the entire record in this case, from my observation of

the witnesses and their demeanor, and after due consideration

of briefs, I make the following:

Findings of Fact

I. Jurisdiction

Respondent is engaged at 900 North 12th Street, St. Louis,

Missouri, in the publication, sale and distribution of a

newspaper, advertisements and related products. During the

year ending December 31, 1977, which period is representative

of its operations during all times material herein, Respondent,

in the course and conduct of its business operations, derived

gross revenues in excess of $200,000 from the publication of a

daily newspaper and subscribed to interstate news services, the

value of which services is in excess of $10,000, and regularly

advertises nationally sold products, the value of which adver-

tisements is in excess of $10,000. Respondent is now, and has

been at all times material herein, an employer engaged in com-

merce within the meaning of Section 2(2), (6) and (7) of the Act.

— =

II, The Labor Organization

The Miscellaneous Drivers and Helpers Union, Local 610, af-

filiated with International Brotherhood of Teamsters,

Chaufeurs, Warehousemen and Helpers of America, is and has

been at all times material herein, a labor organization within the

meaning of Section 2(5) of the Act.

III. The Facts

Respondent publishes a daily and Sunday newspaper known

as the St. Louis Post-Dispatch which is distributed in the

metropolitan St. Louis area. It has two dock facilities and a

dispatcher shack where the driver employees of Berberich come

to pick up the newspapers and distribute them to Respondent’s

customers.

Berberich Delivery Company maintains two facilities, one at

13th and Shenandoah Street in downtown St. Louis, and the

other at Fee Fee Road in north St. Louis County. It is a family

partnership, and maintains contractual relationships with

Respondent and the Globe-Democrat which competes with

Respondent. Berberich provides the delivery service of Respon-

dent’s newspapers. There are no interlocking officers or direc-

tors of either Respondent or Berberich and Respondent has no

financial interest in Berberich nor does Berberich have any

financial interest in Respondent.

Respondent conducts labor relations including grievances and

collective bargaining through Marvin G. Kanne, Director of

Labor Relations. Approximately 11 labor organizations repre-

sent various of Respondent’s employees, including Local 610,

which represents the dockmen employed by the Respondent at

its loading docks. Local 610 also represents Berberich’s drivers.

Berberich decides how many employees it will employ. Its trucks

which are used for the delivery of Respondent’s newspaper,

bear a logo indicating that the Post is being delivered.

pon

The record reflects that on a typical work day Berberich’s

drivers pick up their trucks at the facility owned by Berberich

and proceed to a facility owned by Respondent where they pick

up newspapers for delivery. Presently drivers receive a ‘‘run

sheet’’ from an assistant manager, a Berberich employee, who

directs drivers where to proceed to pick up the newspapers. The

assistant manager receives the ‘‘run sheet’’ from a dispatcher

who is employed by the Respondent. Prior to July 1, 1977,

drivers followed the same basic procedure, but they received

their ‘‘run sheet’’ directly from the Post dispatcer. After that

date, the position of assistant manager was created. Before hir-

ing six assistant managers, Berberich discussed their salary,

$15.000 per year, with Respondent. '

Respondent’s dispatchers maintain records on each driver’s

runs. When a driver finds it necessary to call the dispatcher

shack, he talks to Respondent’s dispatcher rather than an assis-

tant manager. Drivers carry the dispatcher’s phone number in

the event of a problem such as a breakdown or a shortage of

newspapers.

Respondent employs ‘‘recovery men’’ who ride in the truck

with Berberich drivers to give out new additions to street

venders, and take back unsold additions and collect money. The

**recovery man’”’ tells the driver what route to take in order to

complete his pickups.

On some occasions, although infrequent, Respondent’s

pressroom employees have accompanied Berberich’s drivers

delivering printing plates. Respondent has also utilized

Berberich’s employees and trucks to move furniture and

Berberich has stored Respondent’s T.V. remote truck in its

facility, which again, although infrequently, was driven by a

Berberich driver.

' Berberich is reimbursed the $90,000 by Respondent.

tin ee i

Respondent and Berberich have a cost-plus contract. Under .

the terms of this contract, Respondent reimburses Berberich for

all salaries, fringe benefits, medicare, health and welfare con-

tributions. If Berberich for any reason, ceases to be the contract

hauler for Respondent, the Respondent shall reimburse

Berberich ‘‘for all accrued benefits, severance pay liability and

each and every other commitment or liability which arises out of

Berberich’s collective-bargaining agreement and all other ad-

denda, supplements or modifications thereto, whether written

or oral.’’ Respondent pays 7 percent of the gross payroll of the

drivers, assistant managers and garage attendants to cover

social security taxes. Berberich is required to maintain

workmen’s compensation, public liability, and property damage

insurance coverage and Berberich assumes responsibility for any

liability for loss or injury to life or property caused by any of its

employees. In the event of a strike of Berberich employees,

which would prevent Berberich from performing pursuant to

the contract, Respondent agrees to continue to pay expenses at-

tributable. Adjustments may be made in the cost structure on a

year-to-year basis. The contract also provides that nothing con-

tained therein shall be construed to suggest that the parties,

Berberich and Respondent, are general partners, limited part-

ners, joint ventures of joint employers.

Presently, Berberich is reimbursed for the cost of legal

counsel to represent it in business affairs. At some time prior,

Berberich used Respondent’s attorneys at no cost to it.

Record testimony reveal that at least since 1961, Berberich

and the Union have been parties to several collective-bargaining

agreements. Moreover, during the negotations leading up to the

execution of said collective-bargaining agreements, represen-

tatives of Respondent were present, and actively participated in

—. ee

the negotiations.? During the negotiations for the 1976-1978

agreement, representatives of Respondent were not present until

October 4, 1976, the day that the parties reached final agree-

ment. On that date Marvin Kanne, Director of Labor Relations

for Respondent, appeared and according to testimony by

Harland Horn, secretary-treasurer and business agent for the

Union, Kanne made various proposals including wage pro-

posals. Kanne denied that he made any proposals and testified

that he was present for the purpose of explaining the productivi-

ty bonus contained in the contract. According to the testimony

of John Metz, president of the Local, Kanne involved himself in

discussions relating to the contract. Counsel for the charging

party in his brief states that no Berberich representative was

present at the final session. This is incorrect as the record

reflects that Attorneys Siegle and Spoehrer were present to

represent Berberich.

The record is satiated with documentary evidence, including

correspondence between Respondent and the Union, and

Respondent and Berberich, relating to Berberich’s drivers.

There are also addenda to collective-bargaining agreements

signed by representatives of the Respondent, and documents

reflecting that Respondent, acting through the Newspaper

Publisher’s Association, was directly involved in grievances

concerning Berberich’s drivers.’ For example, there are records

?, During negotiations in 1973, Respondent’s Director of Labor

Relations submitted to Horn, the union representative, a document

entitled, ‘‘Publishers 1973 Contract Proposals.’’ It states, inter alia:

‘ta few of the proposals which the publishers feel are a ‘must’ in order

to increase our flexibility and enable us to survive are set forth

below.”’

A perusal of the document reflects that the proposals deal with

rates, hours and working conditions of drivers.

> The Newspaper Publisher’s Association was located in Respon-

dent’s building.

— A-10 —

of arbitration hearings, and a brief prepared by the St. Louis

Newspaper Publisher’s Association, for and on behalf of,

Berberich. The cases involved arbitration proceedings between

the Union and Berberich. Representing the St. Louis Newspaper

Publisher’s Association was Munro Roberts, an employee of

Respondent.

An over-view of the documentary evidence reveals the follow-

ing: (1) Letters to and from Respondent to the Union giving

assurances, that during the term of the contract between

Berberich and the Union, the Respondent will preserve union

members work (known as ‘‘stop letters’’); (2) Addenda to con-

tracts signed by Kanne, requesting certain load limits being

tolled in the delivery of the newspapers, reference is also made

to an understanding expressed in negotiations for the new

collective-bargaining agreement 1976-1978, and that the drivers’

stewards had a right to discuss the issue with management;* A

letter from the Respondent’s circulation manager to the Union,

outlining delivery operations for Respondent’s new plant,

wherein Respondent through its circulation manager also

assures the Union that no drivers will be laid off nor will any

stops be removed; (4) There are also various letters from

Respondent’s management personnel to union representatives,

concerning Berberich’s employees and relating to issues such as

sick leave, pensions, contract negotiations, deliveries, contract

proposals, and disposition of grievances.

Until sometime early in 1977, drivers or their steward would

take their grievances and problems to Berberich. If agreement

could not be reached with Berberich, the Union would ask for a

meeting with representatives of Respondent. The Union would

meet before a joint standing committee comprised of union peo-

* Although Respondent contends it did not participate in negotia-

tions for the 1976-1978 collective-bargaining agreement, these

references are still in the addenda attached to that contract.

rf

— A-ll —

ple and individuals from the Respondent’s Labor Relations

department. Then Director of Labor Relations, Trent, would

present Berberich’s position.

In early 1977, Berberich informed Union Representative

Horn that in the future, any problems would have to be settled

with Berberich.

On Cctober 3, 1977, the Union wrote to Berberich and

Respondent, Kanne’s attention, setting forth its position that

Respondent and Berberich were joint employers, requesting an

opportunity to bargain concerning changes or contemplated

changes in the wages, hours and working conditions of certain

employees, including Berberich’s drivers. Respondent rejected

the Union’s joint-employer contention, and responded that it

had no obligation to bargain with the Union as the represen-

tative of Berberich’s employees.

Analysis and Conclusions

The facts in this case are essentially undisputed. The only area

of divergence is the testimony of Kanne, where he denied that he

made any proposals during the 1976 negotiations, but was mere-

ly present for the purpose of explaining a productivity bonus.

This, as contrasted to the testimony of union representatives,

Horn and Metz, that Kanne involved himself in discussions

relating to the contract and made various proposals, including

wage proposals. I do not think the ultimate conclusions reach-

ed, rise or fall on this conflict, but, I do resolve said conflict in

favor of Metz and Horn, and I discredit Kanne’s testimony in

this area. I believe this credited testimony tends to show a conti-

nuing pattern on the part of Respondent, to exert control over

Berberich’s labor relations.

The record in this case amply demonstrates that at the very

least, Respondent shares the control over labor policies, affec-

ting the drivers who work for Berberich. The Board considers

labor relations factors critical in confronting a joint-employer

issue. The Southland Corporation, 170 NLRB 1332.

— A-12 —

Respondent points out that Berberich hires, fires, and

disciplines its drivers without Respondent’s participation.

Although this is supported by the record, and while Respon-

dent’s control of the drivers’ day-to-day work is not as extensive

as Berberich’s, it is substantial. See, Lowery Trucking Co., 177

NLRB 13.

In my opinion, the employment of assistant managers and the

change in the form of processing grievances in 1977, are changes

in form rather than substance. The other criteria of joint-

employer status, are sufficient enough to weigh heavily in favor

of such a finding.

Although I don’t completely agree with the General Counsel,

that the terms of the cost-plus contract totally eliminate the

normal entrepreneurial risk factor, I do believe that the contract

demonstrates a reciprocal financial dependence between

Berberich and Respondent.’ The cost-plus contract plays a

significant role in my concluding that Berberich and Respon-

dent are joint employers. It seems to me, that, Respondent is the

very raison d’etre for Berberich’s existence. One can readily see

why Respondent would be more than remotely interested in the

wages, hours, and working conditions of Berberich’s

employees. Respondent’s concern is graphically demonstrated

in the ‘‘Publisher’s 1973 Contract Proposals,’’ where it exposes

the fragility and vulnerability of its position. Although Respon-

dent argues that the mass of evidence involves pre-1976 matters,

I am not persuaded by the record that the mutual dependence

between Respondent and Berberich is presently any less

tenuous. I believe the situation involving Berberich’s hiring of

assistant managers further illustrates the control exercised by

Respondent. The hiring of six assistant managers costs Respon-

dent $90,000 per year and Berberich could not get involved in

such an undertaking, without first discussing it with Respon-

dent.

* The cases applying joint-employer criteria do not involve cost-

plus contracts, thus shedding no light on this element.

— A-13 —

I am constrained to conclude on the basis of the totality of the

evidence that Respondent is a joint employer with Berberich,

and as such, has refused to bargain with the Union in violation

of Sections 8(a)(1) and (5) of the Act.

Respondent argues that, even if a joint-employer relationship

once existed, there is insufficient evidence to establish such a

relationship or bargaining obligation during the 10(b) period.

The facts in the instant case reveal a violation of the Act, within

the 10(b) period. Relevant evidence as to the existence or non-

existence of a joint-employer relationship should not be limited

to the 6-month 10(b) period. Rather, pre-10(b) and post-10(b)

events and circumstances are relevant and admissible. See,

Bryan Manufacturing Company, 362 U.S. 411.

Respondent avers that the General Counsel has failed to

prove the appropriateness of the unit alleged. The question of

the appropriateness of the unit, in the context of this case, is a

legal question in the same sense as the joint-employer issue.

Respondent’s denial of the appropriateness of the unit is consis-

tent with its legal arguments relative to the joint-employer issue.

No evidence was produced to reflect or demonstrate a lack of

community of interest or any other factors which would prove

that the unit is inappropriate. Based on the contract and the

history of bargaining, I find and conclude that the unit alleged

in the complaint is an appropriate unit.

Conclusions of Law

1. The Respondent is an employer engaged in commerce

within the meaning of Section 2(6) and (7) of the Act.

2. Respondent and Berberich are, and at all times material

herein have been, joint employers of the employees in the unit

described below.

— A-14 —

3. All drivers, helpers, bundle boys, television truck drivers,

roll paper drivers, mechanics, garage attendants and rack

repairmen performing work relating to the distribution of the

St. Louis Post-Dispatch, excluding all other employees, guards

and supervisors as defined in the Act, constitute a unit ap-

propriate for the purpose of collective bargaining within the

meaning of Section 9(b) of the Act.

4. The Union is a labor organization within the meaning of

Section 2(5) of the Act.

5. At all times material herein, the Union has been the duly

selected representative, for the purposes of collective bargaining

of the employees in the unit described above, and, by virtue of

Section 9(a) of the Act, has been, and is now, the exclusive

representative of all the employees in said unit, for the purpose

of collective bargaining with respect to rates of pay, wages,

hours of employment, and other terms and conditions of

employment.

6. By refusing to bargain collectively with the Union as the

exclusive representative of all the employees in the appropriate

unit, Respondent has engaged, and is engaging, in unfair labor

practices within the meaning of Sections 8(a)(1) and (5) of the

Act.

The Remedy

Having found that the Respondent has engaged in unfair

labor practices within the meaning of Sections 8(a)(1) and (5) of

the Act, I shall recommend it be Ordered to cease and desist

therefrom, and to take certain affirmative action designed to ef-

fectuate the policies of the Act.

The violations committed by the Respondent, do not go to

the very heart of the Act, nor do they demonstrate a proclivity

to violate the Act. Accordingly, in my recommended Order, I

will use the narrow cease and desist language, ‘‘In any like or

related manner.”’

= dpl§ —

I shall recommend that Respondent be Ordered to bargain

with the Union as the exclusive representative of the employees

in the appropriate unit with respect to rates of pay, wages, and

terms and conditions of employment.

Upon the foregoing findings of fact, conclusions of law, and

the entire record, and pursuant to Section 10(c) of the Act, I

issue the following recommended:*

ORDER

The Pulitzer Publishing Company, the Respondent herein, its

officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively with the Union as the

exclusive representative of all the employees in the ap-

propriate unit described below.

(b) In any like or related manner, interfering with,

restraining, or coercing employees in the exercise of their

rights guaranteed under Section 7 of the Act.

(c) The appropriate bargaining unit is:

All truck drivers, helpers, bundle boys, television

truck drivers, roll paper drivers, mechanics, garage

attendants and rack repairmen performing work

relating to the distribution of the St. Louis Post-

Dispatch, excluding all other employees, guards and

supervisors as defined in the Act, constitute a unit ap-

propriate for the purposes of collective bargaining

within the meaning of Section 9(b) of the Act.

* In the event no exceptions are filed as provided by Section 102.46

of the Rules and Regulations of the National Labor Relations Board,

the findings, conclusions, and recommended Order herein shall, as

provided in Section 102.48 of the Rules and Regulations, be adopted

by the Board and become its findings, conclusions, and Order, and all

objections thereto shall be deemed waived for all purposes.

— A-16 —

2. Take the following affirmative action necessary to effec-

tuate the policies of the Act:

(a) Henceforth, upon request of the Union bargain col-

lectively, with the Union, over wages, hours, and working

conditions, and any other terms of employment of the em-

ployees in the appropriate unit described above.

(b) Post at its premises, copies of the attached notice

marked ‘‘Appendix.’’’ Copies of said notice, on forms

provided by the Regional Director for Region 14, after be-

ing duly signed by Respondent’s authorized represen-

tatives, shall be posted by Respondent immediately upon

receipt thereof, and be maintained by it for 60 consecutive

days thereater, 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.

(c) Notify the Regional Director for Region 14, in

writing, within 20 days from the date of the receipt of this

Decision, what steps it has taken to comply herewith.

Dated, Washington, D. C. December 19, 1978.

/s/ Bruce C. Nasdor

Administrative Law Judge

7 In the event that the Board’s 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 RELA-

TIONS BOARD” shall be changed to read ‘‘POSTED PURSUANT

TO A JUDGMENT OF THE UNITED STATES COURT OF AP-

PEALS ENFORCING AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD.”’

—_

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency Of The United States Government

After a trial in which all parties had an opportunity to present

their evidence, the National Labor Relations Board has found

that we violated the National Labor Relations Act, and has

Ordered us to post this notice and to carry out its provisions.

WE WILL NOT refuse to bargain with Miscellaneous

Drivers and Helpers Union, Local 610, affiliated with In-

ternational Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America (the Union), over

wages, hours and working conditions in the unit of em-

ployees which is: All truck drivers, helpers, bundle boys,

television truck drivers, roll paper drivers, mechanics,

garage attendants and rack repairmen performing work

relating to the distribution of St. Louis Post-Dispatch, ex-

cluding all other employees, guards and supervisors as

defined in the Act, constitute a unit appropriate for the

purposes of collective bargaining within the meaning of

Section 9(b) of the Act.

WE WILL, upon request, meet with and bargain col-

lectively with the Union as the collective-bargaining repre-

sentative of the employees in the unit described above.

WE WILL NOT in any like or related manner, interfere

with, restrain, or coerce employees in the exercise of their

rights guaranteed under Section 7 of the National Labor

Relations Act.

THE PULITZER PUBLISHING COMPANY

(Employer)

— A-18 —

Dated

By

(Representative) (Title)

This Is An Official Notice And Must Not Be Defaced By Anyone

This notice must remain posted for 60 consecutive days from

the date of posting and must not be altered, defaced, or covered

by any other material. Any questions concerning this notice or

compliance with its provisions may be directed to the Board’s

Office, 210 North 12th Blvd. - Rm. 448, St. Louis, Missouri

63101, Telephone (314) 425-4361.

— A-19 —

APPENDIX C

FPT

242 NLRB No. 11 D—5013

St. Louis, Mo.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 14—CA—11019

The Pulitzer Publishing Company

and

Miscellaneous Drivers And Helpers Union, Local 610,

Affiliated With International Brotherhood Of Teamsters,

Chauffeurs, Warehousemen And Helpers Of America

DECISION AND ORDER

On December 19, 1978, Administrative Law Judge Bruce C.

Nasdor issued the attached Decision in this proceeding. There-

after, Respondent filed exceptions and a supporting brief.

The Board has considered the record and the attached Deci-

sion in light of the exceptions and brief and has decided to

affirm the rulings, findings,' and conclusions of the Ad-

ministrative Law Judge as modified herein and to adopt his

recommended Order.

' Respondent has excepted to certain credibility findings made by

the Administrative Law Judge. It is the Board’s established policy not

to overrule an Administrative Law Judge’s resolutions with respect to

credibility unless the clear preponderance of all of the relevant

evidence convinces us that the resolutions are incorrect. Standard Dry

Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.

1951). We have carefully examined the record and find no basis for

reversing his findings.

— A-20 —

The Administrative Law Judge found that Respondent and

Berberich’s Delivery Company (herein Berberich)’ were joint

employers and, therefore, that Respondent violated Section

8(a)(5) and (1) of the Act by refusing to recognize and par-

ticipate in collective-bargaining negotiations with the Union

which represents certain of Berberich’s employees. We agree,

for the reasons set forth below, with the Administrative Law

Judge’s conclusion that Respondent and Berberich are joint

employers and that a violation of Section 8(a)(5) of the Act has

been established in this proceeding.

The essential facts are not in dispute. Respondent publishes

‘‘The St. Louis Post-Dispatch.’’ Berberich, pursuant to a cost-

plus contract, delivers Respondent’s newspaper throughout

metropolitan St. Louis.’ Under the contract, Respondent reim-

burses Berberich for all salaries, fringe benefits, medicare, and

health and welfare contributions, as well as social security and

other taxes. It also pays Berberich’s legal fees. In fulfilling the

contract, as explained in greater detail by the Administrative

Law Judge, Berberich’s drivers are supervised in part by

Respondent’s dispatchers and ‘“‘recovery men.’’ The dispatchers

have in the past assigned routes and authorized overtime,

although, since July 1977, the dispatchers have usually given

these directions through the intermediary of an assistant

2 Elsie Berberich and Wilbert W. Berberich d/b/a Berberich’s

Delivery Co., a Partnership, appeared at the hearing as Party in

Interest.

> Berberich also delivers Respondent’s competitor, ‘‘The St. Louis

Globe-Democrat.’’ Berberich has a total of 114 employees, including

drivers and mechanics. Approximately 55 of these employees are

assigned exclusively to the delivery of Respondent’s competitor, while

the remainder are assigned exclusively to the delivery of the Post-

Dispatch. Thus, we do not agree with the Administrative Law Judge

that Respondent is the ‘‘raison d’etre’’ for Berberich.

— A-21 —

manager, who is employed by Berberich. The record shows no

instance, however, where the Berberich manager has, in any

manner, refused or failed to transmit a dispatcher’s instruction.

Berberich’s drivers and mechanics are represented in two

separate collective-bargaining agreements by the Union—one

for Post-Dispatch drivers and mechanics and one for Globe-

Democrat drivers and mechanics.‘ The Union has represented

the drivers since 1947, and has negotiated with Berberich since

1961. Prior to 1961, the drivers were working for a predecessor

company that delivered Respondent’s newspaper.

The Union herein, in addition to representing Berberich’s

employees, also represents a unit of dockmen who work for

Respondent! Until 1967, the dockmen and Berberich’s drivers

were covered by one agreement signed by both Respondent and

Berberich. Since 1967, however, the agreements have been

separate. Nevertheless, the record shows, and Respondent ad-

mits, that, at least from 1961 until 1974, Respondent negotiated

terms and conditions of employment for Berberich’s employees.

Respondent also participated in resolving grievances involving

Berberich until early 1977.

Respondent contends, however, that since early 1977 its rela-

tionship with Berberich has changed such that it is no longer in-

volved in supervising Berberich’s drivers on a daily basis, or in

establishing their terms and conditions of employment either by

negotiating the contract or by resolving grievances. In support

of this contention, it notes that Berberich’s supervisors now

* Only the Post-Dispatch drivers and mechanics are at issue here.

— A-22 —

work at the loading dock at Respondent’s plant,’ and that

Berberich is now solely responsible for settling grievances. It

also excepts to the Administrative Law Judge’s finding that at a

meeting on October 4, 1976, it participated in negotiations

which resulted in the current collective-bargaining agreement

between Berberich and the Union. Moreover, it argues that it is

not a joint employer with Berberich since neither party has any

ownership interest in the other, and because the cost-plus con-

tract, as found by the Board in Cabot Corporation,° does not,

in and of itself, establish joint employer status.’

As stated earlier, we have decided to adopt the conclusion of

the Administrative Law Judge that Respondent is a joint

employer with Berberich. Unlike the Administrative Law Judge,

however, we do not place as heavy reliance on Respondent’s

cost-plus arrangement with Berberich in so concluding. Rather,

in finding that Respondent is a joint employer with Berberich,

we rely on the totality of evidence and note significantly

Respondent’s demonstrated authority to determine labor rela-

tions policies and terms and conditions of employment for

Berberich’s drivers.

’ Respondent was consulted by Berberich in the hiring of these

supervisors pursuant to the cost-plus contract. We note that there are

six supervisors. Three of the new supervisors supervise the drivers who

deliver Respondent’s newspaper, while the other three supervise the

drivers who deliver Respondent’s competitor. Thus, the Ad-

ministrative law Judge erred in concluding that Respondent paid

$90,000 for the salaries of the six supervisors. Respondent only paid

its pro rata share, or $45,000.

* Cabot Corporation and Payne and Keller of Louisiana, Inc., 223

NLRB 1388 (1976), enfd. 561 F.2d 253 (D.C.Cir. 1977).

’ We note that the Administrative Law Judge inadvertently stated

that there were no Board Decisions on joint employer status which in-

volve cost-plus contracts. The relevant decisions are noted above and

below.

— A-23 —

In this latter regard, the Administrative Law Judge credited

the testimony of Union Representatives Harland Horn and

John Metz (and the record amply supports his findings) that, at

the final negotiating session on October 4, 1976, for the 1976-78

agreement between the Union and Berberich, Respondent’s

director of labor relations, Marvin Kanne, negotiated with rep-

resentatives of the Union on the issues which were holding up a

final agreement. The most important topic was a productivity

bonus for Berberich’s drivers. In addition, Kanne also discussed

better cooperation from the drivers, and he proposed changes in

the system by which drivers bid on routes, as well as changes in

scheduling to eliminate part-time work on Saturday nights.

Berberich did not send a representative to this meeting, rather,

it allowed Respondent, through Kanne, to handle these final

negotiations.* As a result of the October 4 meeting, agreement

was reached on a new contract. That contract, with accompany-

ing letters from Respondent, was ratified on October 18, 1976,

and remained in effect until August 31, 1978.°

Respondent’s negotiation of important terms, like fringe

benefits and scheduling—in the context of the cost-plus ar-

rangement and Respondent’s supervisory control over Ber-

berich’s drivers—establishes Respondent as a joint employer

with Berberich. Its participation in negotiations also distin-

guishes the instant case from Cabot, supra, and the other cost-

* Thus, the Administrative Law Judge mistakenly concluded that

Berberich was represented by attorneys Siegle and Spoehrer at the

meeting. Siegle was not present at the negotiating session. Spoehrer

was there, but he was representing the Globe-Democrat.

* By separate letters of October 18, 1976, Kanne also assured

Berberich, inter alia, that Respondent would continue to discuss safe-

ty problems with the Union, and that Respondent would install a

motorized conveyor belt, as requested by the Union.

— A-24 —

plus cases cited by Respondent,'° for, in those cases, the respon-

dent corporations had no such role."'

Finally, Respondent argues that the unfair labor practice

charge, filed on December 23, 1977, was barred by Section 10(b)

of the Act because Respondent allegedly first announced to the

Union it would nct bargain about Berberich’s employees in

1976. We find no merit to this argument, however, because it is

clear that, whenever Respondent first allegedly announced a

purported refusal to bargain,'? Respondent unequivocally

stated a refusal to bargain within the 6-month period preceding

the filing of the instant charge.'? In sum, we conclude that

Respondent’s refusal to bargain with the Union when requested

to do so violated Section 8(a)(5) of the Act.

‘© Oil, Chemical and Atomic Workers International Union, AFL-

CIO, and its Local Union No. 4—23 (Firestone Synthetic Rubber &

Latex Company, Division of the Firestone Tire and Rubber Com-

pany), 173 NLRB 1244 (1968); Mobil Oil Corporation, 219 NLRB 511

(1975).

'! In Russom v. Sears, Roebuck and Co., 558 F.2d 439 (1977), affg

415 F.Supp. 792 (D.C.Mo., 1976), cert. denied 434 U.S. 955 (1977),

the Eighth Circuit recently recognized the importance of this factor in

establishing joint employer status. Thus, in affirming a district court

finding that Sears was not a joint employer, it stated:

Most significantly, the record reflects that Sears did not sign any

contract between DAS and Local 610 and that Sears did not par-

ticipate in any labor negotiations which preceded formation of

such a contract.

The participation of Respondent in negotiations in the instant case

weighs heavily for the opposite finding which we make here.

{While Respondent apparently argues that it told the Union in

August 1976 that it would not bargain about Berberich’s employees,

we note the credited testimony, supra, that its director of labor rela-

tions engaged in such bargaining in October 1976.

') Pittsburgh-Des Moines Steel Company, 202 NLRB 880, 891

(1973). 2

— A-25 —

ORDER

Pursuant to Section 10(c) of the National Labor Relations

Act, as amended, the National Labor Relations Board adopts as

its Order the recommended Order of the Administrative Law

Judge and hereby orders that the Respondent, The Pulitzer

Publishing Company, St. Louis, Missouri, its officers, agents,

successors, and assigns, shall take the action set forth in the said

recommended Order.

Dated, Washington, D.C. May 7, 1979.

John H. Fanning, Chairman

John A. Penello, Member

John C. Truesdale, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

— A-26 —

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1433

The P ‘titzer Publishing

Company,

Petitioner, Petition for Review

and Cross-Application

Vv. for Enforcement of an

Order of the National

National ‘Labor Relations Labor Relations Board

Board,

Respondent.

Miscellaneous Drivers and

Helpers Union, Local 610,

Intervenor-Respondent.

Submitted: December 6, 1979

Filed: April 7, 1980

Before GIBSON, Chief Judge,* LAY and McMILLIAN,

Circuit Judges.

GIBSON, Senior Circuit Judge.*

* The Honorable Floyd R. Gibson was Chief Judge of the Eighth

Circuit at the time this appeal was heard, but took senior status on

December 31, 1979, before the opinion was filed. The Honorable

Donald P. Lay, Circuit Judge at the time the appeal was heard, is now

Chief Judge of the Eighth Circuit.

— A-2T =

Pulitzer Publishing Company petitions to set aside an order

of the National Labor Relations Board entered May 7, 1979,

holding that Pulitzer and Berberich’s Delivery Company were

joint employers and that, therefore, Pulitzer’s refusal to

recognize and participate in collective bargaining negotiations

with the Miscellaneous Drivers and Helpers Union, Local 610

(Union), which represents certain of Berberich’s employees,

constituted a violation of section 8(a)(5) and (1) of the National

Labor Relations Act (N.L.R.A.), 29 U.S.C. § 158(a)(5) and (1)

(1976). The Board cross-applies for enforcement of its order.

We grant the petition to set aside the order, and deny its

enforcement.

Pulitzer publishes a daily and Sunday newspaper, the St.

Louis Post Dispatch, which is distributed in the metropolitan

St. Louis area. Berberich is a family partnership which main-

tains contractual relations to provide delivery service of both the

St. Louis Post Dispatch and its competitor, the Globe Demo-

crat. At all relevant times, Berberich’s dockmen and drivers

were members of a collective bargaining unit represented by the

Union.

Delivery operation begins when Berberich drivers punch in

and pick up their trucks at a Berberich-owned facility. They

drive to one of the Post Dispatch’s two loading docks and

report to a Berberich assistant manager stationed there, who

directs them to the appropriate dock to pick up newspapers and

provides them with a ‘‘run sheet’’ identifying the stops to be

made during the day. The drivers then deliver the papers ac-

cording to the run sheet. If, during the course of delivery, they

encounter any difficulties, they report to the Berberich assistant

manager or occassionally to a newspaper dispatcher in the

loading dock area. Occasionally, a Post Dispatch employee

rides a Berberich truck, either to familiarize himself with the

operations or to retrieve unsold newspapers. On a few isolated

occasions, a Post Dispatch dispatcher has asked a driver to

— A-28 —

work through his lunch period, and a Post Dispatch foreman,

on Fridays, exercises some control over the Berberich ‘‘mail

room”’ truck. [-2-]

Prior to 1961, Berberich was a member of a multi-employer

association which included, among others, Pulitzer and the

Globe Democrat Publishing Co. Since 1961, however Berberich

has separately executed a collective bargaining agreement with

the Union to cover the Berberich drivers who deliver the Post

Dispatch. Pulitzer has also had a separate bargaining relation-

ship with the Union covering its own dockmen. From 1961

through 1974, representatives of the Post Dispatch actively par-

ticipated in the negotiation of contracts between Berberich and

the Union regarding Berberich’s Post Dispatch employees.

During the contract negotiations for 1976, Pulitzer claims

that it did not participate in negotiations between Berberich and

the Union. The evidence of Pulitzer’s involvement consisted

primarily of the presence of Pulitzer’s director of labor rela-

tions, Marvin Kanne, at the October 4, 1976, bargaining ses-

sion. Kanne had been invited to appear by counsel for the Globe

Democrat in order to explain a productivity bonus that had

been negotiated between the Post Dispatch and its own dock-

men. He testified that he explained the bonus and denied having

entered into negotiations in any sense of the term. Two union

witnesses, however, testified that in addition to the productivity

bonus Kanne also discussed the Post Dispatch’s desire for better

cooperation from the drivers, the system for bidding on routes,

and the possible elimination of some part-time work. No Ber-

berich representative was present at this meeting, although it

was the final bargaining session before the production of a new

contract. Thereafter, Kanne wrote letters to the Union promis-

ing, inter alia, that the drivers’ work would be preserved, and to

Berberich indicating, inter alia, that the Post Dispatch would

continue to discuss safety problems with the Union and would

install a motorized conveyor belt. [-3-]

— A-29 —

Prior to 1977, Berberich employees initially discussed griev-

ances with Berberich, but if agreement was not reached the

grievance was taken to a joint standing committee consisting of

representatives of the Union and the Post Dispatch. If the griev-

ance went to arbitration, the St. Louis Newspaper Publishers

Association, using an employee of the Post Dispatch, would

represent Berberich. In early 1977, Berberich informed the

Union that all future grievances would have to be resolved ex.

clusively with Berberich. Since that time, all grievances concern-

ing drivers have been submitted to Berberich.

On October 3, 1977, the Union wrote Berberich and Pulitzer,

contending that they were joint employers, and requested an op-

portunity to bargain concerning changes or contemplated

changes in wages, hours, and working conditions of certain em-

ployees, including Berberich’s drivers. Pulitzer rejected the con-

tention that it was a joint employer of Berberich’s drivers and

refused to bargain with the Union. The Union filed an unfair

labor practice charge with the NLRB on December 23, 1977. A

complaint issued and the case was tried before an administrative

law judge (ALJ) on June 5, 6 and 7 of 1978. The ALJ found

that Pulitzer had violated section 8(a)(1) and (5) of the

N.L.R.A. by refusing to recognize and/or Participate in collec-

tive bargaining with the Union concerning proposed changes in

the methods by which the delivering of newspapers would be ac-

complished. He resolved the legal issue of whether Pulitzer is a

joint employer of the Berberich drivers in the affirmative, and

recommended that Pulitzer be ordered to bargain with the

Union. The Board, on May 7, 1979, adopted the ALJ’s recom-

mended order and affirmed with modification his rulings, find-

ings, and conclusions. |[-4-]

Pulitzer argues that the Board erred in its determination that

Pulitzer was a joint employer of the Berberich drivers on Oc-

tober 3, 1977, (the crucial date for determination of joint

employer status) because it applied the wrong legal test and its

factual findings are not supported by substantial evidence on

— A-30 —

the record as a whole. Universal Camera Corp. v. NLRB, 340

U.S. 474, 490-91 (1951).

Initially, Pulitzer argues that because the Board did not total-

ly accept the findings of the ALJ, this disagreement renders the

evidence somehow ‘“‘less substantial.’’ See Royal Typewriter

Co. v. NLRB, 553 F.2d 1030, 1042 n.12 (8th Cir. 1976). In

reviewing the ALJ’s decision, the Board specifically affirmed

the credibility findings of the ALJ. It did correct a number of

technical inaccuracies in the fact statements made by the ALJ

and disagreed with some of the conclusions he drew from the

facts.' Although this disagreement may obscure the legal

reasoning and analysis underlying the Board’s determination, in

the sense that the Board’s reliance upon different facts from

those relied upon by the ALJ undercuts the legal basis for the

ALJ’s determination, the corrections made by the Board do not

in any way undermine the credibility findings of the ALJ or the

basic factual determinations made by the Board.

Pulitzer also apparently objects to the admission or con-

sideration of certain evidence presented at the hearing before

the administrative law judge. It claims that the actions of the

' The Board found, contrary to the ALJ, that Pulitzer could not be

considered the “‘raison d’etre’’ for Berberich because, of Berberich’s

total 114 employees, approximately 55 are assigned exclusively to the

delivery of Pulitzer’s competitor, the Globe Democrat. The Board

also noted that the ALJ erred in stating that Pulitzer paid $90,000 for

the salaries of the six supervisors. Pulitzer only paid its pro rata share

of $45,000. The Board corrected the ALJ’s statement that Berberich

was represented by two attorneys at the October 4 meeting, noting

that one of the attorneys mentioned was not present, and the other

was there in the capacity of representing the Globe Democrat. The

Board also disavowed the ALJ’s heavy reliance on the form of

Pulitzer’s arrangement with Berberich. It noted that the ALJ had ‘‘in-

advertently stated that there were no Board Decisions on joint em-

ployer status which involve cost-plus contracts.” In fact, there are

relevant decisions which interpret the cost-plus arrangement dif ferent-

ly from the ALJ. [-5-]

—

parties in 1956, 1966, or 1976 are not relevant to the issue of

whether it was a joint employer on October 3, 1977, and that the

Board improperly focused on the activities of a different era. In

effect, Pulitzer appears to argue that all the evidence prior to

the statutory six-month limitation period for filing an unfair

labor practice charge, 29 U.S.C. § 160(b) (1976), cannot be rele-

vant. This argument is meritless. It is clear that the challenged

evidence may be used to shed light on the nature of the relation-

ship between Berberich and Pulitzer as it existed at the time of

the bargaining demand even though it may not be used to estab-

lish the events constituting the alleged unfair labor practice,

Local Lodge No. 1424, International Association of Machinists

v. NLRB, 362 U.S. 411, 422 (1960).

To review whether the Board applied a correct legal test in

determining that Pulitzer was a joint employer of the Berberich

drivers assigned to the Post Dispatch, we must first determine

what test the Board applied. The Board stated that it relied ‘‘on

the totality of the evidence and note[d] significantly

respondent’s demonstrated authority to determine labor rela-

tions policies and terms and conditions of employment for

Berberich’s drivers.’’ Unfortunately, without further elucida-

tion this statement does not clearly articulate the standard ap-

plied by the Board or the critical [-6-] factors it considered in

determining whether a joint employer relationship existed. Fur-

thermore, neither the ALJ’s decision nor the Board’s brief pro-

vides further insight into the test applied by the Board.’

As stated in Parklane Hosiery Co., Inc., 203 N.L.R.B. 597,

612, amended on other grounds, 207 N.L.R.B. 999 (1973):

? The Board’s disagreement and corrections of the ALJ’s decision

precludes its usefulness in this regard. The Board’s brief attempts to

distinguish between the terms ‘‘single employer’’ and ‘‘joint em-

ployers’’ and implies that the only relevant factor is the degree of con-

trol over the work of the employees involved. The Board’s opinion,

however, indicates that it considered factors other than this relevant.

[-7-].

— ASt =

This Board’s so-called ‘‘single employer’’ or ‘‘joint em-

ployer’’ concept defined and codified, with judicial con-

currence, within a significant number of cases normally

reflects a judgment that two or more nominally separate

business entities may properly be considered sufficiently

integrated to warrant their unitary treatment, for various

statutory purposes.

The principal factors which have normally been deemed

relevant, when this Board must decide whether sufficient

integration exists, have covered broadly certain demon-

strable relationships between the several business entities

concerned; the board considers whether their total rela-

tionship reveals: (1) some functional interrelation of

operations, (2) centralized control of labor relations, (3)

common management, and (4) common worship or fi-

nancial control. While none of these factors, separately

viewed, have been held controlling, stress has normally

been laid upon the first three factors which reveal func-

tional integration with particular reference to whether

there is centralized control of labor relations.

See also Radio & Television Broadcast Technicians Local Union

1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256

(1965); Southern California Stationers, 162 N.L.R.B. 1517

(1967).

Applying this test to the relationship between Pulitzer and

Berberich as of October 3, 1977, when the Union requested

bargaining, we find that substantial evidence on the record as a

whole does not support the conclusion that the companies were

joint employers of the Berberich drivers assigned to the delivery

of the Post Dispatch.

All parties agree that there are no interlocking officers or

directors between Pulitzer and Berberich, and that neither has

any direct financial interest in the other. Each is organized as a

separate and independent company, one a corporation, the

— A-33 —

other a family partnership, and their relationship is solely deter-

mined by a contract providing for delivery of the Post Dispatch.

The contract specifically provides that nothing contained in it

shall be construed to suggest that the parties are general part-

ners, limited partners, joint ventures, or joint employers.’

The contractual relationship does require some functional in-

terrelation of the operations of Pulitzer and Berberich. Berber-

ich drivers deliver the Post Dispatch when and where Pulitzer

determines. They drive trucks bearing a Post Dispatch logo. Oc-

casionally they take directions directly from Pulitzer employees.

Pulitzer and Berberich operate under a cost-plus contract. In

many ways, however, Berberich operates independently. It

maintains its own facilities where Berberich drivers must check

in. Assistant managers employed by Berberich direct the

drivers’ routes and procedures according to a ‘‘run sheet’’

received from the Pulitzer dispatcher. Berberich maintains

separate personnel files and is solely responsible for the hiring,

disciplining, and firing of its employees. Berberich pays its own

liability, property damage, and workers’ compensation in-

surance, and owns the trucks and equipment used for delivery.

In the past, Pulitzer maintained a significant degree of con-

trol of the terms and conditions of employment for Berberich

drivers delivering the Post Dispatch. Pulitzer and Berberich

then deliberately attempted to change the nature of their rela-

tionship. Pulitzer substantially withdrew from its role in estab-

lishing the terms and conditions of employment of the Berber-

ich drivers by deciding to abstain from participation in the

negotiations for the 1976-78 collective bargaining agreement

and from participation in the resolution of grievances. In July

1977, it turned over the role of daily supervision of Berberich

> While such language is not necessarily controlling, it can be in-

dicative of the parties’ basic intentions and their understanding of the

contractual arrangement. [-8-]

om it

drivers to Berberich assistant managers.‘ Nevertheless,

Pulitzer’s director of labor relations, Kanne, at the October 4,

1976, negotiating session, explained the terms of a productivity

bonus contained in a collective bargaining agreement with its

dock employees, and discussed certain changes that would af-

fect the terms and conditions of Berberich drivers. Also,

Pulitzer wrote letters assuring that it would continue to discuss

safety problems with the Union and would install a motorized

conveyor belt. These letters were considered addenda of the col-

lective bargaining agreement when it was ratified on October 18,

1976.

We do not find that the solitary incident of Kanne’s participa-

tion in the negotiations on October 4, plus the letters from

Pulitzer, warrant the conclusion that Pulitzer determined labor

relations policies and the terms and conditions of employment

for Berberich drivers. Although the past relationship of the

companies may have been susceptible to the conclusion that

they had centralized the control of the labor relations concern-

‘ The ALJ found that the employment of assistant managers

created a change in form rather than substance. In reaching his con-

clusion that Berberich and Pulitzer were joint employers, the ALJ

relied primarily upon the effect of their cost-plus contractual arrange-

ment, and even indicated taht Kanne’s participation in the negotia-

tions did not have a significant effect upon his ultimate conclusion.

That Pulitzer approved the hiring of the assistant managers, and

ultimately bore the burden of their cost, does not detract from the

substantive nature of the change of operation. The cost-plus contract

was created through purely arms-length dealing and Pulitzer’s prior

approval of hiring the managers was entirely consistent with its con-

tractual right to police reimbursable expenses. See International

Chemical Workers Union Local 483 v. NLRB, 561 F.2d 253, 256-57

(D.C. Cir. 1977); Fidelity Maintenance & Construction Co., Inc., 173

N.L.R.B. 1032, 1037 (1968). Furthermore, while Pulitzer dispatchers

may occasionally direct a Berberich employee, they do not exercise

supervisory authority over Berberich employees. See Oil, Chemical

and Atomic Workers International Union, 173 N.L.R.B. 1244, 1245

(1968). [-9-]

— A-35 —

ing the Berberich drivers, their deliberate decision to institute

changes is entitled to recognition. See W. L. Golightly, Inc., 172

N.L.R.B. 2155, 2156 (1968). Additionally, we note that even a

very substantial qualitative degree of centralized control of

labor relations does not in itself determine the joint employer

issue. See Local 627, International Union of Operating

Engineers v. NLRB, 518 F.2d 1040, 1046 (D.C. Cir. 1975),°

aff'd on this issue sub nom South Prairie Construction Co. v.

Local 627, International Union of Operating Engineers, 425

U.S. 800 (1976).

This court faced the joint employer issue in the context of an

analogous factual situation in Russom v. Sears, Roebuck and

Co., 558 F.2d 439 (8th Cir.), cert. denied, 434 U.S. 955 ( 1977).

After a careful examination of all of the relevant facts, we deter-

mined that Sears was not a joint employer of the employees of

Dependable Appliance Service, Inc. (DAS). In both Russom

and the case at bar, the companies maintained a close business

relationship. In many respects the business operations in

Russom were interconnected to a greater extent. DAS per-

formed substantially all of its business for Sears; Sears trained

the DAS employees; DAS employees received a discount at

Sears stores and participated in Sears employee contests; and

there was evidence that DAS was created in an effort to alleviate

Sear’s previous labor relations problems. We also noted, with

special emphasis, that Sears did not sign the collective bargain-

ing agreement and did not participate in any labor negotiations

preceding the formation of the agreement. Pulitzer, however,

did have minimal participation in labor negotiations, and its let-

* “Although, as pointed out above, centralized control of labor

relations is one of the ‘controlling criteria,’ it is not ‘critical’ in the

sense of being sine qua non of ‘single employer’ status. Canton,

Carp’s Inc., supra [125 N.L.R.B. 483 (1959)]. The degree to which

such control is present (or absent) is, of course, one of the cir-

cumstances upon which ‘single employer’ status depends.’’ 518 F.2d

at 1046. [-10-]

— A-36 —

ters were considered addenda to the agreement. Balancing the

totality of relevant evidence in these cases, we find the evidence

implicating an existence of a joint employer relationship is

substantially similar. In neither case is a finding of joint em-

ployer status justified. Both present circumstances vary dif-

ferent from cases finding a joint employer relationship where

the companies share direct supervision of the employees in-

volved and control hiring, firing, and disciplining. See Ace-

Alkire Freight Lines, Inc. v. NLRB, 431 F.2d 280, 282 (8th Cir.

1970).

Congress has vested in the courts of appeals the duty to

review certain Board determinations. When in our judgment an

erroneous assessment of the particular facts before the Board

has led it to a conclusion which does not comport with the law,

we must set aside the determination of the [-11-] Board and

deny enforcement of its order. See Boire v. Greyhound Corp.,

376 U.S. 473, 477, 481 (1964). The totality of the relevant

evidence in this case does not support the conclusion that

Pulitzer and Berberich are joint employers. There is no common

ownership or management between the companies. Their opera-

tions are not substantially interrelated beyond the extent

necessary to the performance of the basic contractual duty of

Berberich to deliver the newspapers. The evidence is insufficient

to show centralized control of labor relations. The degree to

which Pulitzer exercises control of the labor policies and terms

and conditions of employment of Berberich’s drivers is not

substantial.

Enforcement denied.

A true copy.

Attest:

CLERK, U. S. COURT OF

APPEALS, EIGHTH CIRCUIT.

oo MT

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 79-1433. September Term, 1979

The Pulitzer Publishing

Company,

Petitioner,

Petition for Review of

v. Order of the National

Labor Relations Board

National Labor Relations

Board,

Respondent.

Miscellaneous Drivers and

Helpers Union, Local 610, etc.,

Intervenor-Respondent.

The Court having considered petition for rehearing en banc

filed by counsel for intervenor-respondent and, being fully ad-

vised in the premises, it is ordered that the petition for rehearing

en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition

for rehearing, it is ordered that the petition for rehearing also

be, and it is hereby, denied.

May 6, 1980