Appendix — News-Journal Co. v. National Labor Relations Board

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 19,252

Tue News-Journat Company, Petitioner

v.

Nationa Lasor Retations Boarp, Respondent

On Petition To Review an Order of the National Labor

Relations Board

Argued June 10, 1971

Before Stratey, Apams, Circuit Judges and GARTH,

District Judge

Opinion of the Court

(Filed July 12, 1971)

Avams, Circuit Judge.

The question in this case is whether the record before

us clearly precludes the decision of the National Labor

Relations Board that the truck-driver deliverymen of the

News-Journal Company are employees rather than inde-

pendent contractors.

*“The Board’s findings are entitled to respect; but they must

nonetheless be set aside when the record before a Court of Appeals

clearly precludes the Board’s decision from being justif-d by a

fair estimate of the worth of the testimony of witnesses or its in-

formed judgment on matters within its special competence or

both ’’ Universal Camera Corp. v. NLRB, 340 US. 474, 490

(1951).

We approach the problem with the realization that we

are not to function as a ‘‘judicial echo’’ for the conclusions

of the NLRB,” and that ‘‘[w]hether on the record as a

whole there is substantial evidence to support agency find-

ings is a question which Congress has placed in the keep-

ing of the Court of Appeals.’? However, we also recog-

nize that the application of these principles does not ‘‘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

different choice had the matter been before it de novo.’’®

This case is here on the petition of the News-Journal

Company to review and set aside an order of the NLRB

and upon the petition of the NLRB to enforce its order.*

The News-Journal publishes and delivers newspapers in

and around Wilmington, Delaware. Some years ago, in

order to improve the efficiency of its circulation depart-

ment, it automated the mail room and terminated its con-

tracts with the independent trucking companies that de-

livered the bundles of newspapers from the plant to the

carriers and dealers. The laid-off mail room employees

were offered the delivery routes and were given severance

pay and an opportunity to finance their own trucks, Even-

tually, 21 persons, including some of the mail room em-

ployees, performed this service for the News-Journal.

From the beginning of this new arrangement, the News-

Journal considered these men to be independent contrac-

tors. Each signed an explicit contract with the News-Jour-

2 Td., at 491.

37d., at 488, quoted in NLRB v. United Insurance Company,

390 U.S. 254, 260 (1968).

* The decision and direction of election is reported at 180 NLRB

No. 137 (1970) ; the bargaining order is reported at 185 NLRB No.

40 (1970).

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nal. Social Security and other taxes were not withheld

from the amounts payable to them. They were free to use

their trucks in any manner that did not interfere with the

delivery of the papers.* Vacations, substitute drivers, and

helpers were all matters left to their sole discretion. The

record contains additional evidence which would tend to

indicate that these men were in fact independent con-

tractors.’

On the other hand, there is evidence in the record that

these deliverymen enjoyed a somewhat different. status.

For example, despite the fact that the contract was osten-

sibly result-oriented, the News-Journal insisted that the

drivers be present at the loading dock long before the

papers were actually ready to be loaded. District Man-

agers frequently met with the drivers while they were en

route in order to discuss matters with them. These officials

performed checks to see that the papers were properly

delivered, and ordered changes as they saw fit. On ocea-

sion, the company compelled the drivers to deliver addi-

5 At the time of the hearing, only 18 of the 21 contracts were

produced. In the contract, the drivers were referred to as ‘‘con-

tractors.’ Under its terms, a driver was obligated to deliver

papers as designated from time to time by the company, to fur-

nish and maintain his own equipment and to indemnify the com-

pany from any loss. The contract provided that its terms were

suspended whenever publication of the papers was suspended. It

further provided that it could be amended only in writing, and

that it could be terminated on thirty days’ notice by either party

or without notice by the company in the event of breach by the

driver.

* At various times, drivers used their trucks on other jobs, such

as collecting trash or delivering pastries. One driver even serviced

a delivery route for a Philadelphia newspaper.

7For example, there was no requirement that the trucks be

painted in any uniform or distinctive manner. If a truck carried

advertisements for the News-Journal, the driver received addi-

tional compensation.

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tional items, such as ‘‘stakes and tubes’’ and ‘‘honor

boxes.’’ ®

We recognize that the maintenance of an effective cir-

culation department by a large newspaper requires pre-

cise adherence to, as well as frequent amendment of, the

delivery schedule. Therefore, the fact that the delivery

spots and number and contents of the bundles were changed

often, and that opportunities for variation in the order of

delivery, or the routes utilized were somewhat limited are,

by themselves, important but not decisive. Similarly, the

fact that the contracts were often amended orally, and with

little or no notice, is also not determinative. What is crit-

ical is that the vast majority of the changes were made at

the insistence of the News-Journal and that the company

was the sole judge whether such changes merited corre-

sponding adjustment in compensation.

In NLRB v. United Insurance Company, supra, the

Supreme Court considered the congressional intent in ex-

cluding independent contractors from the coverage of the

NLRA and concluded that ‘‘there is no doubt that we

shou'd apply the common law agency test here in distin-

guishing an employee from an independent contractor.’’ ®

The Court, however, could not identify any one facet of the

relationship as determinative, but rather stated:

‘¢. . . In a situation as this, there is no shorthand

formula or magic phrase that can be applied to find

the answer, but all of the incidents of the relationship

must be assessed and weighed with no one factor being

decisive. What is important is that the total factual

8‘*Stakes and tubes’’ are the devices to hold newspapers com-

monly seen along rural roads. ‘‘Honor boxes’’ are newspaper

vending machines.

®390 U.S. at 256.

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context is assessed in light of the pertinent common-

law agency principles.’’

It is unfortunate that in this case the NLRB expressed its

conclusion in terms of a single test: whether ‘‘the News-

Journal Company has in practice reserved to itself the

right to control the basic manner and means, as well as

the result, of the deliverers’ work.’?™ If we were con-

vinced that the Board narrowly examined the record with

only this in mind, we would be consirained to remand this

matter for a proper consideration of the evidence. How-

ever, it is clear that the Board did consider the type of

services rendered, the possibility of realizing additional

profits through the exercise of entrepreneurial skill and

the ownership and maintenance of the vehicles. In addi-

tion to examining the language of the contract, the Board

weighed the practice of the parties, the skill required of the

deliverymen, the mode of compensation for additional

duties, and the methods of applying corrective and dis-

ciplinary measures. In light of this, we can say only that

the NLRB chose between ‘‘two fairly conflicting views.”’

We cannot say that they applied the wrong criteria.

The Court has carefully considered Meyer Dairy, Ine.

v. NLRB, 429 F.2d 697 (10th Cir. 1970), and Carnation

Company v. NLRB, 429 F.2d 1130 (9th Cir. 1970), and has

found them inapposite. In those cases, the drivers pri-

marily performed a retail sales function, and their status

was more nearly analogous to that of franchisees. In such

a situation where skill, independence, and personal judg-

ment contribute heavily toward the success of the enter-

prise, the ‘‘right of control’’ test becomes more significant,

10 Td., at 258.

11180 NLRB at ——.

12. NLRB v. United Insurance Company, 390 U.S. at 260.

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since the actual or potential exercise of that control can

stifle the entrepreneurial talents of the drivers.

In The Herald Company v. NLRB, Nos. 34620, 34791,

34935 (2d Cir., decided June 11, 1971), the Court exam-

ined a factual situation similar to those found in Meyer

Dairy and Carnation, supra, and reached a contrary result.

The Herald Company’s distributors bought their papers

wholesale and sold them retail, enjoyed a proprietary

interest in their routes, and conducted many activities

independent of or in competition with the Company.

Nevertheless the Court found substantial evidence that the

Company maintained and exercised supervision over the

performance of the distributors’ duties, thet the Company

could control the value of the distributorships by threaten-

ing not to renew the contracts, and that the Compary

could regulate the distributors’ immediate income by jug-

gling wholesale prices and extracontractual payments.”

Here, the drivers perform primary delivery functions,

and do not resell the newspapers at a profit. What would

be the manner of achieving the result in a context such

as that found in The Herald Company, supra, Meyer

Dairy, supra, or Carnation supra, is the sought-after result,

itself, in this setting. Accordingly, these cases provide

guidance but no governance.

The petition to review will be denied and the petition

to eufurce the bargaining order will be granted.

* Although the Court quoted the NLRB's interpretation of the

Supreme Court's common law agency test from News Syndicate

Company, Inc. 164 NLRB 423, 428 (1967) (right to control

manner by which result is accomplished), it is clear that it did

not restrict itself solely to the application of that criterion.

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Judgment

Before: Staley, Adams, Circuit Judges and

Garth, District Judge.

Tuts Cavse came on to be heard upon a petition to review,

and a cross-application for enforcement of an order of the

National Labor Relations Board dated August 27, 1970,

against The News-Journal Company, its officers, agents,

successors, and assigns. The Court heard argument of

respective counsel on June 10, 1971, and has considered

the briefs and transcript of record filed in this cause. On

July 12, 1971, the Court being fully advised in the premises

handed down ite opinion granting enforcement of the

Board’s Order.

Ox Coxsworratiox Wiensor, it is hereby ordered and ad-

judged by the United States Court of Appeals for the

Third Cireuit that the said order of the National Labor

Relatio& Board in said proceeding be enforced, and that

The News-Journal Company, its officers, agents, successors,

and assigns, abide by and perform the directions of the

Board in said Order contained.

It Is Fvxrner Onvenep that costs shall be taxed against

the Petitioner.

1) NLBB No. 127 D-2505

Wilming?on, Del

UNITED STATES OF AMERICA

BLFORE THE NATIONAL LABOR BELATIONS BOARD

Case +RC-S171

Tze News-Jovexar Compas: Employer

and

Newsrarte Gritp or Greater Pumapenprm. Ayres

Neiwsraree Grito, AFL-CIO, Petitioner

Decision and Direction of Election

Upon @ petition daly filed under Section Sic) of “he Na-

tietal Later Relations Act. as amended. a hearing was bel

'wfore Gordon L. Fine, Hearing Officer. Following the

Leat.ng and pur-vant to Section I°2467 of the National La-

ter Rela*ion+ Board Rule- and Regulations and Sta*ener--

of Procedure, Series §, as amended, and br direction of the

Regional Direetor for Region 4. thi« case was tran-ferred

te the National Later Relations Board for decision. Bork

the Ex.plorer and the Petitioner filed brief«.

Por+cant to the provisions of Section 2/b) of the Natioral

Later Relations Act, a+ amended, the National Later Rela-

tions Board Las delegated its powers in connection with +h).

ra-+ ‘6 @ three-member peneL os

The Board bas reviewed the Hearing (ficer’s ruling:

made at the hearing and finds no prejudicial error. The

raling: are hereby affirmed.

Upon the entire record im this case, the Board finds -

1. The News-Journal Company is a Delaware corporation

engaged in the business of publishing and distribating new

papers in and around Wilmington, Delaware. The dollar

+ The same of the emplerer appears as amended at the bearing i SL22

Bs. 38°.

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“ate of Delaware exceeds $50,000 annually. The parties

a©Tely.

-. The labor organization involved claims to represent

“Tein employees of the Employer.

. -L question affecting commerce exists concerning the

representation ef certain employees of the Employer with-

~ the meaning of Section 9(c)(1) and Section 2(6) and

of the Act.

4. The Petitioner secks a unit of 21 newspaper deliverers

“no are engaged in the bulk distribution of the Employ-

“rs newspapers. The Employer contends that the peti-

‘10m should be dismissed because the deliverers are not,

within the meaning of Section 2(3) of the Act, employees,

"ot rather are independent contractors.”

The NewsJournal Company, hereinafter called the

Company or the Employer, publishes two newspapers, the

Morning News, hereinafter called the News, and the Eve-

tng Journal, hereinafter called the Journal. The distri-

tation and sale of the newspapers is performed under the

direction of the circulation department, which also includes

the mailroom. It is here that the papers are counted,

sorted into bundles, and labeled according to a prearranged

order for delivery by the 21 deliverers to the Company’s

carrier bors and motor route operators, who deliver the

papers to the ultimate purchaser.

2*Bee. 2. When used in this Act— - + + (3) the term ‘employee’. . .

sat Sot smelude .. . any individual having the status of an independent

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In the early 1960’s, the Company began to phase out

the independent trucking companies which, under contract,

were supplying their own trucks and drivers and delivering

the paper bundles from the plant. At about this time, the

Company also automated its mailroom, thus necessitating

the layoff of a substantial number of mailroom employees.

To nine of these employees, the Company offered contracts

which constitute agreements under which these men supply

their own trucks and deliver the paper bundles from the

Company plant to such addresses as may from time to

time be designated by the Company along routes in speci-

fied territories. In return for this service, the contracts

provide for weekly payment by the Company of a fixed sum

of money for such delivery of each edition of the paper.

These individuals purchased their own trucks and now per-

form the same delivery function formerly performed by

the truck drivers of the independent trucking companies.

New drivers have also been taken on, and now there are

21 deliverers. However, only 18 written contracts were

submitted in evidence. The testimony indicates that the

three missing contracts were not found in a search of

the Company files. It is not clear whether the contracts

were simply lost or were never executed in the first place.

The three deliverers without contracts allegedly operate

under understandings generally similar in terms to the

written contracts. One such driver, however, additionally

services honor vending boxes owned by the Company.

In addition to the provisions as to route territories to be

serviced, the remuneration therefor, and the furnishing

of operating equipment at the deliverer’s expense, the

contracts expressly provide that the deliverer shall trans-

port and deliver the papers daily, regularly, and promptly,

and shall exercise due diligence to protect the papers

from damage from handling or the elements; that the

deliverer shall make such transportation and delivery of

papers at his own risk and expense and according to his

own “iscretion, means, and methods of control, which shall

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not be subject to the control or supervision of the Com-

pany; that the contractor-driver shall not be considered

an agent, servant, or employee of the Company, it being

expressly agreed that the driver shall have the status

of an independent contractor and shall control the ways

and means of performing his several obligations under

the contract; that the driver shall hold the Employer

harmless for any damage arising out of his performance ;

that the contract shall continue in effect until terminated

upon proper notice by either party, as provided therein;

that the contract may also be terminated without notice

by the Company at any time upon breach by the driver

of any of the provisions; and that the contract contains

the entire agreement between the parties and its terms

shall not be changed, modified, altered, or supplemented

except in writing signed by the parties.

The distribution function of the Employer is organized

in the following manner. Each deliverer is assigned a

route or routes for the delivery of one or more editions

of either the News or the Journal, or both. When a route-

territory becomes available because a deliverer has quit or

the distribution territories are reorganized, the distribu-

tion manager, who organizes the routes, may either put up

the route for bids or may ask a driver whether he would

like to take over another route. In the former case, the

route is posted for bids on the bulletin board of the

mailroom and the drivers and their acquaintances then

bid on it. The available route is not publicly advertised.

The distribution manager and his superiors then determine

which bid to accept, having considered the bidders’ equip-

ment and their employment histories. The lowest bid is

not always accepted. A contract is signed describing the

route to be serviced and stating the agreed-upon price.

When a route is not put up for bids, the price will be

fixed by agreement between the Empolyer and a selected

deliverer. Thereafter, however, the route-territory may

be added to, split up, or consolidated with an other route,

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and with most routes this has been done. In these cases,

the driver’s oral agreement to the reorganized route and

to any adjustment in compensation is secured, but no new

contract, as such, is drawn up and signed. Rather, the

route changes are noted on the driver’s route description

record in the mailroom and his rate of compensation is

adjusted on the financial records of the Company. When

such route-territory changes are necessary because of

changed conditions, they are initiated by the distribution

manager, but such changes have also been made at the

request of drivers for their own accommodation.

Having his route assignment, the deliverer is required

to report to the loading dock at least 15 minutes before

his edition is due; if the edition is late, he may wait

another half hour before he can start loading. The

mailroom bundles his papers and sends them down a

chute in a prearranged and labeled drop-spot sequence

according to the driver’s route description. The deliverer

loads his paper bundles and proceeds to drop them off

at the prearranged spots for the carrier boys and motor

route operators to pick them up. The deliverer is free

to drop them off out of sequence, if he so desires, but

time limitations must be met. The driver must be careful

not to damage the bundles in dropping them off and, to

make them salable, must deliver them promptly. These

delivery services are performed without on-the-spot Em-

ployer supervision of the driver. However, if bundles

are improperly dropped off, damaged, in the wrong spot,

or out of order, the district managers who supervise the

carrier boys and motor route operators talk to the de-

liverers about it, if necessary report them to the distribu-

tion manager, and may even effectively recommend the

termination of the deliverers, if the latter do not cooperate.

The record shows that a district manager effectively rec-

ommended the termination of an uncooperative driver.

Drop spots are frequently changed and bundles are split

or consolidated, depending on the needs of the carrier

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boys and motor route operators. Such drop-spot changes

are initiated by the district managers, who issue change

orders which are approved by their supervisors and are

relayed via the mailroom to the deliverers, who effectuate

the drop-spot changes. Such drop changes and the split

or consolidation of deliverers’ routes may, and frequently

do, increase or decrease a deliverer’s route mileage,

number of papers, bundles, drop-spots, and route service

time. Since a deliverer’s compensation is based on these

factors, they may and have resulted in additional com-

pensation, if such increases are substantial. However,

as noted below, this does not always follow.

Because of this procedure, the contract provisions re-

lating to compensation and the delivery routes are, in

most cases, not current and are incorrectly stated in the

contracts. For instance, driver Bayne’s contract provides

for compensation of $75 per week and delivery of 1 route

in a certain area, whereas he actually receives $210 per

week and delivers 2 routes in an entirely different area.

This situation and practice is contrary to the contract

provision requiring all contract changes to be in writing

signed by the parties. Moreover, the Employer has oc-

casionally made substantial increases in the loads and

route coverage of some of .he deliverers without effecting

corresponding changes in their rates of compensation.

For instance, in one case a net total of 800 papers was

added to a deliverer’s load, and in another, three drop-

spots and accompanying paper loads were added on, in-

creasing the route mileage by about 5 miles; in both in-

stances, the deliverers were not paid any additional com-

pensation.

Normally, the Employer does not reimburse the drivers

for their expenses; however, the Employer does pay an

annual license fee of $22 for four drivers in the town of

Elsmere, apparently without reimbursement by the drivers.

The Employer maintains no personnel records, as such, on

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the drivers. For some special tasks, such as delivery of

mailbags to post offices, the drivers receive special com-

pensation ; for others, such as delivery of stakes and tubes,

they do not. The total amount of time spent by each

driver in performing Company deliveries in most cases

adds up to a greater portion of a full work day. How-

ever, a number of the drivers have at one time or another

operated sales or distribution routes for other items, rang-

ing from trash to bakery products. It appears that a

majority of the drivers have no regular source of. income

other than the Employer’s delivery routes.

The Petitioner contends that the deliverers are not in-

dependent contractors, as provided by the contracts, but

rather are employees of the Company, because the Com-

pany controls the manner and means by which they do

their work, within the meaning of the Board’s ‘‘right of

control’’ test.2 Petitioner points to the fact that the

Employer may reorganize the deliverers’ routes at will,

as noted above, has sometimes done so without commen-

surate compensation, and exercises supervision over them

through the district managers’ drop spot change orders

and instructions as to proper delivery of the paper bundles.

Moreover, the Petitioner contends, the timing of the de-

livery of the various editions to insure their salability

necessitates close integration of function, and supervision

is necessarily required to keep the distribution process

properly operating. The deliverers have no prcprietary in-

terest in their routes and hence cannot sell or assign

them. The fact that the deliverers own their trucks, hire

their own temporary replacements, anu may use their

trucks in any manner they see fit during off hours are,

according to the Petitioner, not controlling factors in the

determination as to whether they are employees within

the meaning of the Act.

3 San Antonio Light Division, 174 NLRB No. 97.

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The Employer contends, to the contrary, that a pre-

ponderance of the record evidence shows that the de-

liverers are independent contractors, rather than employ-

ees, because the Company lacks control over the manner

and means by which the deliverers perform their jobs.

The following factors are cited in support of its position:

the present function and methed of operation of the de-

liverers is the same as that of their predecessors, the

trucking companies; the contract provisions specifically

define the status of the deliverers as that of independent

contractors, exclude the Company from control of the

ways and means of performance, impose costs and expenses

of operation exclusively on the deliverers, and indicate

that the Company’s sole interest is in the result of per-

formance; the deliverer is free to make changes in the

prearranged sequence of delivery of the drop-spot bundles

and, to that extent, in his route; there is no direct su-

pervision of the deliverers by the Company; deliverers

may take on other business, provided it does not interfere

with their servicing of their routes; special tasks, such

as the delivery of mail bags to the post office, are specially

compensated by prior agreement; a deliverer’s net com-

pensation is the difference between the fixed contract com-

pensation for services paid by the Company and the

costs of doing business, almost none of which is subject

to reimubrsement by the Company; deliverers determine

for themselves whether to hire helpers or substitutes, and

when their holidays and vacations shall be; the Company,

with a minor exception, as noted above, does not maintain

personnel records of the deliverers for fee or tax pur-

poses or cover such expenses; and deliverers are not re-

quired to display Company signs or identification on their

vehicles unless they want to, and in such cases are specially

compensated for advertising by a supplemental contract.

As to the variations in the terms of the contracts, the

Employer contends, the parties have a right mutually to

accomplish any change they wish, despite the express pro-

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visions requiring that all amendments be in writing, and

the orally agreed changes in routes and compensation are

effective modifications and cannot be taken to abrogate

the basic contracts themselves. As to the practice of fre-

quently ordering changes in the drop spots and contents

of the drop bundles, this is a condition of the newspaper

distributing business, and, as such, is provided for by

the terms of the deliverers’ contracts, which obligate them

to deliver to such places as may from time to time be

designated by the Employer. And the fact that changes

are not accomplished directly by the district managers,

but through written orders of the managers approved by

the distribution manager and transmitted by the mail-

room at pickup time to the deliverers, shows, according

to the Employer, that there is no direct supervision of

the drivers. The Employer also contends that such changes

do not in any manner constitute control of the ways and

means of performing the job, but affect merely the result.

The evidence further establishes, the Employer notes, that

the contracts provide that the deliverers shall save the

Company harmless from liability for any damage re-

sulting from the deliverers’ performance under the con-

tracts, but they do not require the deliverers to carry

liability insurance. Lastly, the evidence shows that the

actual route time of the deliverers, in practically every

instance, does not add up to a full workday, so that there

remains opportunity for the deliverers to perform out-

side jobs, and many of them do.

Thus, the question arises whether the deliverer has

stepped into the shoes of the predecessor trucking com-

pany: as entrepreneur, or whether the entrepreneur has

been eliminated. The answer to this question depends

on whether it may be said that the deliverers work for

wages with the right of control over performance of their

jobs reserved to the Employer, or whether, like inde-

pendent contractors, they undertake the job for a price,

decide how the work will be done, exercise their own

ee menses

; =r

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discretion in performing the work, and depend for their

income not upon wages, but upon profits. We believe that

the relationship between the Company and the drivers is

properly characterized as one of employer and employee,

as that relationship is described in Pure Seal Dairy Co.,

135 NLRB 76 at 79:

Where the person for whom the services are performed

retains the right to control the manner and means

by which the result is to be accomplished, the re-

lationship is one of employment. On the other hand,

where control is reserved only as to the result sought,

the relationship is that of independent contractor.

The resolution of this question depends upon the

facts of each case and no one factor is determinative.

The services rendered almost exclusively consist of the

routine manual work of loading and driving trucks over

agreed-upon routes and dropping off bundles of newspapers

properly and in a prearranged sequence or order at desig-

nated drop spots. The possibility of realizing any mean-

ingful added profit by changing the esiablished method of

operation appears to be very limited. While the deliverers

own their trucks and have the added responsibility of main-

taining them in good operational condition, the ownership

and maintenance of the vehicle alone is not a controlling

factor in a determination of this type.* The deliverers re-

tain practically no independence in their operations; they

cannot decide when or whether they will go out on an as-

signed route; they cannot fix the time of delivery; and they

cannot determine that others should drive their vehicles,

except in cases of illness, vacation, or excusable absence,

when they provide and pay for their own substitutes. Al-

though they may hire and pay for additional helpers, the

4 San Antonio Light Dévision, The Hearst Corporation, 174 NLRB No. 97;

San Antonio Light Division, The Hearst Corporation, 167 NLRB No. 99;

and Frito Lay Inc., 167 NLRB No. 11.

rr _

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record does not show that such helpers are hired on any

regular basis.’

Thus, the express provisions of the contracts purpo~ing

to create independent contractor relationship notwithstand-

ing (and we note that there do not even appear to be any

written contracts for three of the drivers), the practice of

the parties shows that the deliverers do not act as inde-

pendent contractors. The territories and drop spots are

predetermined by the distribution and district managers.

All that remains to be done is the physical work of loading.

truck driving, and dropping off the paper bundles. There

Accordingly, we find that a unit of the following employ-

ees is appropriate for purposes of collective bargaining

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

* One of the deliverera, Wilson, also serviess paper vending machines, for

which purpose be hires a helper This service is apecially compenasted.

Drasctioxs or Ex.ecriox

An election by secret ballot shall be conducted among the

employees in the unit found appropriate, as early as pos-

sible, but not later than 30 days from the date below. The

Regional Director for Region 4 shall direct and supervise

the election, subject to National Labor Relations Board

Rules and Regulations. Eligible to vote are those in the

been permanently replaced* Those eligible shall vote

* In order to assure that all cligible voters may have the opportanity te be

informed of the levers in the exercise of their statutory right te vote, all

parties te the election should have sooees te « list of voters and their of.

dresses which may be uaed to communicate with them Eereisier Caderwrer

Inc, 156 NLAB 1036; N.LAB. +. Wyman Gorden Compeny, 184 UB. TH.

Accordingty, it ie bereby directed that o selection eligibility list, containing

the names and addresses of a] Whe eligible voters, must be Gied by the Be

ployer with the Regional Director for Regione 4 within 7 days of the date of

thie Decision and Direction of heection The Regional Director shall make the

list available to all parties te the election. No extension of time te Gle

thie let shall be gramted by the Regional Director except in extraordinary

circumstances, Failure to comply with this requiremest shall be grounds

|

i

!

whether or not tuer desire to be represented for collectire-

bargaining purposes by Newspaper Guild of Greater Phila-

delphia. American Newspaper Guild, AFL-CIO.

Dated, Washington, D. C., Jan. 21, 1970.

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Howazp Jesurss, Jn. Member

Natrosat Lasow Retatmss Boxee

(szat)

2la

155 NLEB No. 40 D-4261

Wilmington, Del.

UNITED STATES OF AMERICA

BEPORE THE NATIONAL LABOR RELATIONS BOARD

Case D-CA-5212

Tue News-Jovenat Compaxy

and

Newspaper Gui_p or Greater P

Locat 10, AFL-CIO

Decision and Order

Upon a charge filed by Newspaper Guild of Greater Phila-

delphia, Local 10, AFL-CIO, herein called the Union, the

Genera] Counsel for the National Labor Relations Board,

by the Regional Director for Region 4, issued a complaint

and notice of hearing dated April 24, 1970, against The

News-Journal Company, herein called Respondent, alleging

that Respondent had engaged in and was engaging in cer-

tain unfair labor practices within the meaning of Section

&(a)(5) and (1) and Section 2(6) and (7) of the National

Labor Relations Act, as amended. Copies of the charge,

complaint, and notice of hearing were duly served upon

Respondent and the Union.

The complaint alleges in substance that on February 26,

1970, the Union was duly certified in Case 4-RC-8171 (not

published in NLRB volumes) as the exclusive collective-

bargaining representative of Respondent's employees in the

unit found appropriate by the Board in its Decision and

Direction of Election dated aJnuary 21, 1970 (180 NLRB

No. 137), and that since on or about March 10, 1970,

Respondent has refused, and is refusing, to recognize and

bargain with the Union as such exclusive bargaining repre-

sentative, although the Union has requested it to do so.

ia iii ii

On May i3, 1970, Respondent filed its answer, admitting

that it had been served with the charge herein, that its vol-

ume of business meets the Bo«rd’s jurisdictional standards,

that it engages in commerce within the meaning of the Act,

that the Union is a labor organization within the meaning

of the Act, that the Union was chosen by a majority of the

employees in the unit found appropriate to be their exclu-

sive collective-bargaining representative, that the Union

was certified by the Board thereafter, and that Respondent

has refused to bargain with the Union. Respondent denied,

however, the remaining parts of the complaint which alleged

that the Union was the representative of an appropriate

unit of Respondent’s newspaper deliverers and that the

Union has requested, and is requesting, Respondent to

bargain with the Union; Respondent contends in its answer

that the newspaper deliverers who comprise the appropri-

ate unit are independent contractors, not employees within

the meaning of the Act, and thus not entitled to repre-

sentation.

On May 28, 1970, the General Counsel filed with the

Board a Motion for Summary Judgment.

On June 2, 1970, the Board issued an Order transferring

the proceeding to the Board and requesting Respondent to

show cause why the General Counsel's Motion for Summary

Judgment should not be granted.

On June 10, 1970, Respondent filed a Cross-Motion for

Summary Judgment requesting the Board to dismiss the

complaint and set aside the election and certification.’

Pursuant to the provisions of Section 3(b) of the Act, the

Board has delegated its powers in connection with this case

to a three-member panel.

23a

Upon the entire record in this case, tt Board makes the

following:

Ruling on the Motion for Summary Judgment

The record before us establishes that on February 27,

1969, the Union filed ¢ petition in Case 4-RC-8171, seeking

to represent all newspaper deliverers at Respondent's Wil-

mington, Delaware, location. After a hearing, the Regional!

Director for Region 4 transferred the case to the Board for

decision. In its Decision and Direction of Election dated

January 21, 1970, the Board found appropriate for

collective bargaining the following unit of employees:

All newspaper deliverers employed in the circulation

department of the Employer’s [Respondent] Wilming-

ton, Delaware, newspaper business, excluding all other

employes, and all supervisors as defined in the Act.

(180 NLRB No. 137)

On February 17, 1970, pursuant to the Decision and Di-

rection of Election, an election was held in which a majority

of the employees of Respondent in the unit described above

designated and selected the Union as their representative

for the purposes of collective bargaining with Respondent.

There were no challenged ballots or objections to the con-

duet of the election, and, on February 26, 1970, the Regional

Director for Region 4 issued his Certificate of Repre-

sentative. )

Respondent thereafter admittedly refused to bargain with

the Union upon the latter’s request, and the instant refusal

to bargain charge was filed on April 10, 1970.

In its statement in opposition to the General Counsel’s

Motion, and in support of its Motion, Respondent contends

that the Union's certification in the underlying representa-

tion proceeding is invalid because the newspaper deliverers

represented by the Union are independent contractors, not

employees within the meaning of the Act, and, thus, not en-

titled to representation. It appears, however, that Respond-

24a

ent is attempting to do no more than relitigate in the in-

stant proceeding issues which were previously decided by

the Board in the underlying representation case. It is well

established that in the absence of newly discovered or pre-

viously unavailable evidence, an employer is not entitled

to relitigate in a Section 8(a)(5) proceeding issues which

were, or could have been, raised in the underlying repre-

sentation proceeding. Accordingly, as no such evidence

bearing on the status of the newspaper deliverers has been

presented, we find without merit Respondent’s claim that

the election conducted in the representation proceeding is

invalid because the unit was not comprised of ‘‘employees’’

within the meaning of the Act.’

In its answer, Respondent contends that a recent Ninth

Cirenit Court of Appeals decision, Carnation Co. v.

NLRB. F.2d (C.A. 9; April 30, 1970), in which

the court denied enforcement of our order that, inter alia,

invalidated certain individual agreements entered into be-

tween Carnation and its wholesale and retail dairy product

deliverers because the deliverers were then represented by

a union and covered by a valid collective-bargaining agree-

ment, requires reversal of our unit determination herein.

in Carnation, we found that because the deliverers were

employees, not independent contractors, and entitled to

representation by the union involved therein, Carnation

could not lawfully negotiate separate contracts with them.

The court disagreed with this finding and concluded that

since the deliverers were independent contractors, Carna-

tion did not violate the Act by dealing with them

2 The only new evidence which Respondent offered to present to the Board

imvolved the fact that several of the deliverers threatened to sue Respondent

to enforce their indi-idual contractor status. We are of the opinion that this

factor, when weighed against the other factors which support a finding that

the newspaper deliverers are not independent contractors, is not sufficient

te warrant reversal of our prior unit determination.

25a

In the underlying representation proceeding herein we

found that the newspaper deliverers were employees, not

independent contractors, within the meaning of the Act

because, inter alia, the services rendered consisted of the

routine manual work of loading and driving trucks over

predetermined routes and dropping off bundles of news-

papers in a prearranged order at designated drop spots;

the drop spots are changed without prior consultation with

the deliverers; the deliverers are closely supervised to in-

sure proper and timely delivery of the newspaper; and the

opportunity to realize any meaningful additional profit by

cutting costs or changing methods of operation appears to

be limited. The deliverers emaployed by Carnation, how-

ever, set their own hours of work and sequence of deliveries

and, most importantly, can increase their profit by enlarg-

ing the difference between their costs, including the cost for

Carnation dairy products, and the price they charge their

wholesale or retai) customers.

While we do not necessarily agree with the court’s deci-

sion in Carnation, we find that it does not warrant reversal

of our unit determination herein because Respondent clearly

retains much greater control of the manner and means of

accomplishing the result (newspaper delivery) than did

Carnation, whose distributors were free to vary their

methods of operation or raise the price in order to increase

profitability.

All material issues having been either decided by the

Board, admitted in the answer to the complaint, or estab-

lished by the uncontested documents attached to the

General Counsel’s Motion for Summary Judgment, there

are no factual issues requiring a hearing before a Trial

Examiner. Accordingly, the General Counsel’s Motion for

Summary Judgment is granted and Respondent’s Cross-

Motion for Summary Judgment is denied. On the basis of

the record before it, the Board makes the following:

— es

26a

Findings of Fact

I. The Business of Respondent

Respondent, The News-Journal Company, is engaged at

Wilmington, Delaware, in the business of publishing and

distributing newspapers in and around Wilmington, Dela-

ware. During the past year, Respondent had a dollar

volume of sales from its Wilmington facilities directly to

customers outside the State of Delaware in excess of

$50,000 and purchased materials from outside the State

of Delaware valued in excess of $50,000.

Respondent admits, and we find, that Respondent is, and

at all material times herein has been, an employer engaged

in commerce within the meaning of Section 2(6) and (7) of

the Act.

Il. The Labor Organization Involved

Newspaper Guild of Greater Philadelphia, Local 10,

AFL-CIO, is a labor organization within the meaning of

Section 2(5) of the Act.

Ill. The Unfair Labor Practices

A. The Representation Proceeding

1. The Unit

At all times material herein, the following employees

have constituted and now constitute a unit appropriate for

purposes of collective bergaining within the meaning of the

Act:

All newspaper deliverers employed in the circulation

department of the Employer’s Wilmington, Delaware,

newspaper business, excluding all other employees, and

all supervisors as defined in the Act.

2. The Certification

On February 17, 1970, a majority of the employees in said

unit, voting in a secret ballot election conducted under the

supervision of the Regional Director for Region 4 of the

acerca

2’a

National Labor Relations Board, designated the Union as

their representative for the purposes of collective bargain-

ing with Respondent, and on February 26, 1970, the

Regional Director for Region 4 certified the Union as the

exclusive collective-bargaining representative of all the

employees in said unit, and the Union continues to be such

representative.

B. The Request to Bargain and Respondent’s Refusal

On or about March 10, 1970, the Union requested and con-

| tinues to request that Respondent bargain collectively with

it as the exclusive collective-bargaining representative of

all the employees in the above-described unit. Commencing

on or about March 10, 1970, Respondent refused, and con-

tinues to refuse, to bargain collectively with the union

as exclusive bargaining representative of the employees in

said unit.

Accordingly, we find that the Union was duly certified as

the collective-bargaining representative of the employees of

Respondent in the appropriate unit described above; that

the Union at all times since February 26, 1970, has been

and now is the exclusive bargaining representative of all

the employees in the aforesaid unit, within the meaning of

Section 9(a) of the Act; and that Respondent has since

March 10, 1970, refused to bargain collectively with the

Union as the exclusive bargaining representative of its em-

| ployees in the appropriate unit. By such refusal, Respond-

| ent has engaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(5) and (1) of the Act.

IV. The Effect of the Unfair Labor Practices

Upon Commerce

The acts of Respondent set forth in section III, above,

occurring in connection with the operations as described

in section I, above, have a close, intimate, and substantial

relation to trade, traffic, and commerce among the several

States, and tend to lead to labor disputes burdening and

obstructing commerce and the free flow of commerce.

28a

V. The Remedy

Having found that Respondent has engaged in unfair

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

(1) of the Act, we shall order that it cease and desist

therefrom and, upon request, bargain colléctively with the

Union as the exclusive representative of all employees in

the appropriate unit, and, if an understanding is reached,

embody such understanding in a signed agreement.

In order to insure that the employees in the appropriate

unit will be accorded the services of their elected bargain-

ing agent for the period provided by law, we shall construe

the initial year of certification as beginning on the date

Respondent commences to bargain in good faith with the

Union as the recognized bargaining representative in the

appropriate unit. See: Mar-Jac Poultry Company, Inc.,

126 NLRB 785; Commerce Company d/b/a Lamar Hotel,

140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert.

denied 379 U.S. 817; Burnett Construction Company, 149

NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10).

Conclusions of Law

1. Respondent is, and has been at all material times

herein, an employer engaged in commerce within the

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

2. Newspaper Guild of Greater Philadelphia, Local 10,

AFL-CIO, is a labor organization within the meaning of

Section 2(5) of the Act.

3. All newspaper deliverers employed in the circulation

department of Respondent’s Wilmington, Delaware, news-

paper business, excluding all other employees, and all

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.

4. Since February 26, 1970, the above-named labor

organization has been and now is the certified and exclusive

i)

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PRED E DG POD OD

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29a

representative of all employees in the aforesaid appropriate

unit for the purposes of collective bargaining within the

meaning of Section 9(a) of the Act.

5. By refusing on or about March 10, 1970, and at all

times thereafter, to bargain collectively with the above-

named labor organization as the exclusive bargaining

representative of all the employees of Respondent in the

aforesaid appropriate unit, Respondent has engaged in

and is engaging in unfair labor practices within the mean-

ing of Section 8(a)(5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has

interfered with, restrained, and coerced, and is interfering

with, restraining, and coercing, its employees in the exer-

cise of the rights guaranteed to them in Section 7 of the

Act, and has thereby engaged in and is engaging in unfair

labor practices within the meaning of Section 8(a)(1) of

the Act.

7. The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of Section

2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(¢c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

hereby orders that Respondent, The News-Journal Com-

pany, Wilmington, Delaware, its officers, agents, successors,

and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of

pay, wages, hours, and other terms and conditions of em-

ployment with Newspaper Guild of Greater Philadelphia,

Local 10, AFL-CIO, as the exclusive bargaining representa-

tive of its employees in the following appropriate unit:

All newspaper deliverers employed in the circulation

department of its Wilmnigton, Delaware, newspaper

30a

business, excluding all other employees, and all super-

visors as defined in the Act.

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

restraining, or coercing employees in the exercise of the

rights guaranted to the.n by Section 7 of the Act.

2. Take the following affirmative action which the Board

finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named labor

organization as the exclusive representative of all employees

in the aforesaid appropriate unit with respect to rates

of pay, wages, hours, and other terms and conditions of

employment, and, if an understanding is reached, embody

such understanding in a signed agreement.

(b) Post at its Wilmington, Delaware, place of business,

copies of the attached notice marked ‘‘ Appendix’’.* Copies

of said notice, on forms provided by the Regional Director

for Region 4, shail, after being duly signed by Respondent’s

represntative, be posted by Respondent immediately upon

receipt thereof, and be maintained by it for 60 consecutive

days thereafter, ir conspicuous places, including all

places where notices to employees are customarily posted.

Reasonable steps shall be taken by Respondent to insure

that said notice is not altered, defaced, or covered by any

other material.

3 In the event that this Order is enforced by a judgment of a United States

Court of Appeals, the words in the notice reading ‘‘ Posted by Order of the

National Labor Relations Board’’ shall read ‘‘ Posted pursuant to a Judgment

of the United States Court of Appeals enforeing an Order of the National

Labor Relations Board.’’

(c) Notify said Regional Director for Region 4, in

writing, within 10 days from the date of this Decision and

Order, what steps Respondent has taken to comply herewith.

Dated, Washington, D. C., Aug. 27, 1970.

ee

oeereeereeeceeeeeeeeeeeeeeeeee eee

Howsrp JENKINS, Jz., Member

Natrona Lasor REtatTions Boarp

(SEAL)