A. S. Abell Co.

National Labor Relations Board - Board Decisions

Aug 26, 1970

185 N.L.R.B. 144 (N.L.R.B. 1970)

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. S. Abell Company and Truckdrivers and Helpers
Local Union 355 , affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Petitioner . Case 5-
RC-6878
August 26, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
MCCULLOCH AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Harvey A.
Holzman . Following the hearing and pursuant to
Section 102 . 67 of the National Labor Relations Board
Rules and Regulations and Statements of Procedure,
Series 8, as amended, and by direction of the Regional
Director for Region 5, this case was transferred to
the National Labor Relations Board for decision.
Both the Employer and the Petitioner filed briefs.
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.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds no prejudicial
error . The rulings are hereby affirmed.
Upon the entire record in this case , the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. No question affecting commerce exists concerning
the representation of certain employees of the Employ-
er within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act, for the following reasons.
The Employer , in distributing its newspapers to
customers ' homes, utilizes , inter alia, the services of
approximately 77 city home circulation employees,
called district advisors , and of about 800 carrier
newsboys . The Petitioner seeks a unit of district
advisors. The Employer contends and the Petitioner
denies that the district advisors are supervisors of the
newsboys. i
The district advisors and newsboys work through
seven service centers in various parts of the city,
operated by six admitted supervisors who supervise
the district advisors. Operating through these service
' The Employer asserts that if the carrier newsboys are employees,
they should be included in the appropriate unit The Petitioner does
centers, the Employer utilizes four methods of
distribution, all four of these methods involve the
services of district advisors, but only two involve the
use of carrier newsboys.
First, the Employer uses conceded independent con-
tractors for rural noncity deliveries and certain city
routes. There are six district advisors who coordinate
work with them and who the parties agree are not
supervisors.
The second system consists of approximately 400
company route newsboys and 57 district advisors
who work with them.
The district advisors are on straight salary; receive
life insurance, medical insurance, workmen's compen-
sation, sick leave, and vacation and holiday benefits;
have company cars or receive a vehicle allowance;
and have a pension plan. Their starting salaries are
the same; they receive promotions based on time
and merit and are interviewed and hired at the main
office by the Employer's circulation manager. Each
district advisor is assigned a territory and a specific
number of boys. He assigns the work, recruits, hires,
fires, trains, adjusts grievances, and disciplines the
boys, and adjusts customer complaints.
The company route boys are assigned a specific
number of customers and must accept them. They
are paid by the district advisors, the amount depending
on the number of papers they deliver. The boys
collect money from customers and give it to the
district advisors. The boys when paid give a receipt
with their names on it to the district advisor who
turns it in to the service center. In addition, the
boys receive a bonus for securing new subscribers
and for speedy collection and good service. The district
advisor gives one voucher covering all his boys to
the company treasury department, which in turn pays
the district advisor.
In case a boy is sick he must get a replacement.
The manner of delivery, including time of day and
method of delivery, as well as method and manner
of collection, is set by the district advisor. If some
customer fails to pay the boy, the Employer absorbs
the losses. The boys do not receive any social security,
workmen's compensation,' vacation, sick leave, holi-
days, or pensions. However, the record reveals that
if they are injured on the job the Employer pays
for medical and hospital care.
The third system consists of approximately 400
junior route newssboys and 14 district advisors who
work with them. These district advisors have
basically the same duties, authorities, responsibilities,
and working conditions as the company route district
advisors. However, when they recruit a boy for a
route they sign him to a contract
not seek carrier newsboys and, in any event, has an insufficient showing ' By statute they are not covered by social security, workmen's compen-
of interest for any unit which includes carrier newsboys sation, or minimum wage laws
185 NLRB No. 24
A S ABELL CO
The boys post a bond and sign a contract, and
their parents fill out a form which is returned to
the Employer . The boys are given a list of customers
in a specific area and must accept all customers.
They do not have a choice of areas and cannot
service anyone outside their area . They are required
to keep a customer collection book furnished by the
district advisor and to return it to him when they
leave the Company. Further , they must maintain
a subscriber list at all times and prepare one on
a special form for the Employer. They buy the papers
from the Employer and sell them to subscribers at
prices set by the Employer, keeping the difference
as compensation . Any losses are assumed by the
boys. However , they are not permitted to allow cus-
tomers to accumulate credit . In addition , if the route
is small , the district advisor gives the boy a territorial
allowance as additional compensation . The boys
receive a bonus for new subscribers as well as for
speedy collection and good service. If one of their
routes in the judgment of the district advisor is too
large, part of it is switched to another boy. The
boys are not allowed to sell papers in the streets.
Further , the boys have no proprietary interest in
their routes , and on termination of the contract the
route reverts to the Employer . The boys are forbidden
to engage in any other business or distribute publica-
tions other than the Employer's newspapers, and,
if they breach any terms of the agreement, the Employ-
er has the right to terminate the contract immediately
upon notification .' As with the company route boys,
they are trained by the district advisor, and the
means and method of delivery and collection are
set by the district advisor . In case of injury on the
job the Employer pays for hospital and medical care.
Both company route boys and junior route boys are
issued company I . D. cards.
The last method of delivery is direct service. The
Petitioner claims that 20 of the 57 company route
carrier district advisors , supra, are part -time direct
service people who, assertedly , are paid the same
as other district advisors and are supervised by either
another district advisor or by someone in the service
centers. These people are, assertedly, usually newly
hired , deliver papers , and have no one working under
them . The total number of direct service people cannot
be determined from the record ; nor is it clear whether
they work only part -time for the Employer or work
full-time for the Employer , spending part of such
time delivering papers and part as district advisors
for company route boys . In view of our determination
herein , however , we do not have to reach these issues.
145
Finally, there are six other employees who fill
in for district advisors when they are sick or on
vacation.
From the facts recited above, it is clear beyond
doubt that if the newsboys are employees of the
Employer, the district advisors who work with them
are supervisors . The Petitioner contends that the news-
boys are not employees of the Employer either because
they are independent contractors , or because their
relationship to the Employer is too casual to warrant
a finding that an employment relationship exists.
In determining the status of persons alleged to
be independent contractors , the Board applies the
"right of control" test , which turns essentially on
whether the person for whom the services are per-
formed retains the right to control the manner and
means by which the result is to be accomplished,
or whether he controls only the result . In the latter
situation , the status is that of independent contractor.
The resolution of this question depends on the facts
in each case. No one factor is determinative. Here,
as seems typical in cases of this kind, there are
present factors supporting the position taken by both
parties with respect to the carrier boys status.
In the instant case, we are satisfied that both groups
of carrier boys are employees of the Employer.' We
are aware that the evidence reveals several factors
usually present in independent contractor relation-
ships. However , these factois are not peculiar to
such status and are not uncommon in employment
relationships . Thus, we are not persuaded and do
not regard as controlling the facts that the Employer
does not place the carrier boys on its payroll or
make the usual payroll deductions for them; that
they do not receive paid vacations , holidays, or sever-
ence pay; that the carrier boys make their own collec-
tions and obtain replacements when they are unable
to service their routes; or that the district advisors
do not regularly accompany the carrier boys on their
routes. The result to be accomplished is, of course,
the circulation of the Employer's newspapers. In
accomplishing this result , the carrier boys bear slight
resemblance to the independent businessman whose
earnings are controlled by self-determined policies
and personal investment , for the record shows that
the carrier boys must sell the newspapers at a price
determined by the Employer within territories defined
and controlled by the Employer. Moreover , the carrier
boys' risk of loss and capacity to draw on personal
initiative to increase their earnings are minimized
Although the junior route newsboys sign a contract and the company
route newsboys do not, there is in fact no meaningful distinction between
In addition , the Employer may terminate the contract by giving the two groups of newsboys with respect to their relationships to the
2 weeks ' notice Employer and the district advisors
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a significant extent by the Employer's practices
and policies which are calculated to prevent competi-
tion between carrier boys ; its practice of territorial
allowance to compensate for small routes ; its right
to change unilaterally the size of the routes; and
its control over the number of newspapers which
carrier boys may receive. Further, the carrier boys
have no proprietary interest in their routes.
On these facts , and the record as a whole, we
find that the carrier boys' opportunities for profits
are limited by the Employer 's regulation and control
of important aspects of the carrier boys' work. Conse-
quently, as the Employer has to a large extent reserved
the right to control the manner and means , in addition
to the result, of a carrier boy's work, we conclude
that the carrier boys are not independent contractors
but employees within the meaning of the Act.'
It is true , as the Petitioner asserts, that the Board
has generally held that carrier boys are not employees
of the newspaper for whom they make deliveries.
Such findings have, however, been predicated on the
evidence adduced and the parties ' positions in the
specific cases; ' and when as here the evidence prepon-
derates in favor of finding that the newsboys are
employees , the Board has made such finding.'
Having found that the carrier boys are employees
of the Employer, and because the district advisors
who direct them possess inter alia authority to hire,
discharge, and responsibly direct the carrier boys
under them, we find that such district advisors are
supervisors within the meaning of Section 2(11) of
the Act.
As noted above, there are six district advisors who
the parties agree are not supervisors ; in addition
there are approximately 20 part-time direct service
people who may fall into the same category as the
six district advisors . The record is, however , inconclu-
sive with respect to their status or to the question
whether other employees perform "direct service"
work similar to that apparently performed by those
latter district advisors. The Petitioner, although
requested at the hearing , did not take a clear position
on any other unit except one encompassing the approx-
imately 77 district advisors. Taking these factors into
consideration, we find that the evidence in the record
is insufficient to permit determination concerning the
appropriateness of any unit other than the one peti-
tioned for.
Accordingly, in view of the foregoing and on the
record as a whole , we shall dismiss the petition herein.
ORDER
It is hereby ordered that the petition in this case
be, and it hereby is, dismissed.
See Citizen News Company, Inc, 97 NLRB 428
See e g , Buffa lo Courier Express, Inc, 129 NLRB 932, San Antonio
Light Division , Hearst Publications , 130 NLRB 619, Eureka Newspaper,
Inc, 154 NLRB 1181, News Syndicate Co, Inc, 164 NLRB 422
' Citizen News Company, Inc, 97 NLRB 428 Nor is there merit
to the contention that the newsboys are in effect casual employees
Although there may be substantial turnover , the newsboys ' work is neither
irregular, intermittent , sporadic , nor occasional