Asheville Citizen-Times Publishing Co.

National Labor Relations Board - Board Decisions

Jun 28, 1990

298 N.L.R.B. 949 (N.L.R.B. 1990)

ASHEVILLE PUBLISHING CO.
Asheville Citizen-Times Publishing Company and
Drivers Local Union No. 61 , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO, Petitioner . Case 1 1-RC-5602
June 28, 1990
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 1, 1989, the Acting Regional Director
for Region 11 issued a Decision and Order, perti-
nent portions of which are attached. On August 18,
1989, the National Labor Relations Board granted
the Union's request for review.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On review and consideration of the entire
record, the Board has decided to affirm the Acting
Regional Director's fmdings that the home deliv-
ery, single issue (rack), and combination home de-
livery and single issue (rack) carriers are independ-
ent contractors2 and that, accordingly, the petition
raises no question concerning representation.3
i The Employer filed a brief in opposition to the Petitioner's request
for review
2 This case is distinguishable from Roadway Package System, 288
NLRB 196 (1988), in which the Board found that the employer's pickup
and delivery drivers were employees. In Roadway, the employer's control
over the manner of performing work was more extensive than in the
present case In contrast to the Employer here, the employer in Roadway
required, for example, that drivers wear uniforms and carry the company
logo on their vehicles, that drivers use vehicles of certain colors, and that
drivers maintain detailed records for the employer's own use In addition,
the Roadway drivers had less control over the amount of profit they
could realize from their work and took less financial risk than the carriers
in this case. Nearly all drivers in Roadway purchased and financed or
leased their vehicles through an employer-sponsored program and when
a driver was terminated the employer assumed the liability on the vehi-
cle; the employer made start-up loans to guarantee a minimum level of
gross income during the early weeks of employment, and the employer
controlled the cost to all customers In this case, carriers independently
locate, purchase, and finance their own vehicles, which are strictly of
their own choosing, receive no "start-up" money, and are relieved of no
financial obligations if terminated Further, among those factors relied on
by the Acting Regional Director, we note that the carriers bear the risk
of loss for stolen or damaged papers, are responsible for collecting pay-
ment from customers, can contract for more than one route, and, al-
though the record indicates that their freedom to set prices to customers
is not unlimited , in some cases they have altered the prices charged to
customers or imposed extra fees for personal service.
2 After the hearing closed, the Union filed a motion to reopen the
record for purposes of receiving evidence that the Employer limited the
right of rack carriers to alter the price charged customers for newspa-
pers The Acting Regional Director denied the motion As the Acting
Regional Director found, even assuming the facts alleged by the Petition-
er, the weight of the evidence supports the result he reached Therefore,
we affirm the Acting Regional Director' s denial of the motion.
ORDER
949
It is ordered that the Acting Regional Director's
Decision and Order is affirmed and the petition is
dismissed.
APPENDIX
The Employer is a South Carolina corporation with a
facility located in Asheville, North Carolina, where it is
engaged in the business of newspaper publication. The
Employer utilizes the services of approximately ninety-
eight home delivery carriers, twenty-eight single issue
(rack) carriers, and seventy-six combination of home de-
livery and rack carriers in the distribution of its newspa-
per. The Employer maintains that home delivery and
rack carriers are independent contractors while the Peti-
tioner, on the other hand, contends that all the carriers
are employees and should be granted a representation
election. Both parties have filed briefs which have been
carefully considered.
The evidence indicates that the Employer advertises in
its newspaper for both home delivery and rack carriers,
who upon being hired, sign a contract with the Employ-
er, which states that the carrier is an independent con-
tractor whose contract can be terminated by either party
provided that the terminating party gives thirty days
notice. All the carriers are given a primary area of re-
sponsibility by the Employer who reserves the right to
alter that area at will. A District Manager trains a new
carrier, but after a short period of time the carrier is no
longer supervised on a daily basis. Carriers purchase
newspapers from the Employer on a weekly basis at a
wholesale price established by the Employer.
Home delivery carriers can purchase any amount of
newspapers they desire, but must pay for any unsold
newspapers, while rack carriers, on the other hand, re-
ceive a credit for unsold newspapers provided that the
number of unsold newspapers does not exceed fifteen
percent of the number purchased. In addition, carriers
must absorb the cost of lost or damaged newspapers after
they have been delivered to the carrier at an Employer
designated drop off point.
Home delivery carriers collect money on a monthly
basis from their customers, who are not participating in a
pay in advance subscription. The evidence indicates that
some carriers charge a higher rate than that set by the
Employer as well as being required to absorb the cost of
customers' bounced checks. Rack carriers lease racks
from the Employer with the agreement that they will be
left at certain Employer designated locations and collect
money from them everyday. However, the record re-
flects that rack carriers can and have leased additional
racks and placed them wherever they choose without
consulting the Employer, and some carriers have
charged a higher rate than the Employer's price.
The record shows that from the checks the Employer
gives to the carriers it does not withhold any income
taxes, social security taxes, or workman's compensation
taxes, nor does it provide any fringe benefits for the car-
riers. The evidence further indicates that carriers are al-
lowed to and have hired and trained substitutes and/or
298 NLRB No. 136
950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
helpers without consulting with the Employer as well as
having engaged in other employment while under con-
tract to deliver newspapers for the Employer. The Em-
ployer requires carriers to purchase, maintain, and insure
at their own expense, a vehicle to deliver newspapers
while the Employer waives any liability for damage
caused by the driver while delivering newspapers. The
Employer prohibits the use of its logo on the carriers'
delivery vehicles.
The evidence indicates that the carriers are not subject
to a dress code and can purchase supplies such as rubber
bands, plastic bags, and ledger books from any source;
but most carriers purchase them from the Employer
through the District Manager whom they generally meet
with for such purposes. The Employer requires each car-
rier to submit a list of customers or rack locations as
well as sales from each source. In addition, the Employ-
er prohibits its carriers from inserting any unauthorized
material with the newspapers.
The home delivery carriers and rack carriers in the in-
stant matter hold positions which are similar to those of
the newspaper distributors in Fort Wayne Newspapers
Inc., 263 NLRB 854 (1982), in which the Board conclud-
ed that the distributors were independent contractors
based upon a right to control test where the results
rather than the means are controlled by the Employer.
See The Daily Mining Gazette, A Division of Thomson
Newspaper, Inc., 273 NLRB 350, 351-52 (1984); Donrey,
Inc., 223 NLRB 744, 746-47 (1976).
In Fort Wayne Newspapers, supra at 855, the newspaper
distributors, who delivered newspapers to dealers, stores,
and coin operated newsracks, worked without day-to-
day performance supervision by the employer; purchased
papers directly from the employer at its set rate and re-
ceived a credit for unsold papers while absorbing the
loss for any lost or stolen newspapers; hired, trained, and
fired helpers and substitutes as well as having the permis-
sion to and holding outside employment; were required
to purchase, maintain, and insure their own vehicles for
newspaper delivery; and had no taxes what-so-ever with-
held or fringe benefits provided for them by the employ-
er. The Board held that such distributors were independ-
ent contractors even though there were factors that indi-
cated that the distributors were employees rather than in-
dependent contractors, such as that: the employer con-
trolled the wholesale and retail price of newspapers sold,
had a terminable at will contract with the distributors,
minimized the distributors entrepreneurial risk by allow-
ing unsold papers to be returned for credit, and owned
and determined the location of the racks as well as grant-
ed no proprietary interest in the racks to the distributors.
The facts supporting the Board's decision in Fort
Wayne Newspapers, supra, are present in the instant case
inasmuch as the carriers are not under the daily supervi-
sion of their District Manager; purchase newspapers in
advance at rates set by the Employer, but can and do sell
the newspapers at higher rates; can and do hire and train
helpers and substitutes without consulting the Employer;
are required to purchase, maintain and insure their deliv-
ery vehicles as well as being prohibited from using the
Employer's logo on their vehicle; can and do have other
outside employment; have not taxes whatsoever withheld
nor do they receive any fringe benefits from the Em-
ployer; and, unlike in Fort Wayne Newspapers, supra, the
rack carriers in the instant matter can and have leased
additional racks.
The Petitioner contends in its brief that the Employer
controls the means by which the carriers deliver newspa-
pers and thus the Board's decision in The Herald Star,
Canton Division, Thomson Newspapers, Inc., 227 NLRB
505 (1976), should control the instant case. However, the
instant matter is distinguishable from The Herald Star,
supra, inasmuch as the carriers can and do charge higher
prices for newspapers than the Employer recommends,
and the Employer does not assist carriers with their de-
liveries which indicates that the Employer does not con-
trol the means by which the carriers deliver their news-
papers. In light of the forgoing and the record as a
whole, I find the home delivery carriers and rack carri-
ers are independent contractors. Accordingly, as the Pe-
titioner seeks to represent only newspaper carriers, the
petition is hereby dismissed inasmuch as Section 2(3) of
the National Labor Relations Act prohibits the assertion
of jurisidiction over independent contractors.
With regard to the Petitioner's Motion to Reopen the
Record, even assuming arguendo, that the Employer re-
moved a rack carrier from a particular customer because
that customer had complained to the Employer about the
rack carrier increasing the newspaper prices, the record
evidence indicates that the aforementioned event is an
isolated one. Specifically, the evidence adduced at hear-
ing reflects that, contrary to the Petitioner' s assertions in
its Motion, other carriers have similarly raised their
newspaper prices and the Employer has not interfered in
such actions. Thus despite the contentions of the Peti-
tioner in its post hearing motion, I find that the weight
of the record evidence clearly supports my findings in
this matter; and therefore, I hereby deny in its entirety
the Petitioner's Motion to Reopen the Record.