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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 875

## Text

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| 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

al ~ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0171%3A1. Public record. Not legal advice.