Houston Chronicle Publishing Co.

National Labor Relations Board - Board Decisions

Jan 7, 1941

28 N.L.R.B. 1043 (N.L.R.B. 1941)

In the Matter of HOUSTON CHRONICLE PUBLISHING COMPANY and
HOUSTON NEWSBOYS UNION, LOCAL 456
Case No. R40241-Decided January 7, 1941
Jurisdiction : newspaper publishing industry.
Definitions
Newsboys held not'employees of a newspaper company within the mean-
ing of the Act where the Company exercises no supervision over their activities
on the street with respect to the manner and methods used in news vending.
Practice and Procedure : petition dismissed where no question has arisen con-
cerning the representation of employees of the Company.
Mr. V. Lee McMahon, for the Board.
Kyser, Liddell, Benbow cC Butler, by Mr. Frank A. Liddell and Mr.
W. 0. Huggins, Jr., of Houston, Tex., for the Company.
Mr. Fred A. Verhines, of Houston, Tex., for the Union.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On June 27, 1940, Houston Newsboys Union, Local 456, herein called
the Union, filed with the Regional Director for the Sixteenth Region
(Forth Worth, Texas) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of Hous-
ton Chronicle 'Publishing Company, Houston, Texas, herein called
the Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49;Stat. 449; .Herein- called the Act. On August 10, 1940, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9, (c) of the Act and Article III, Section 3, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
ordered an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon clue notice.
On August 20, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the Union.
Pursuant to the notice, a hearing was held on August 26, 27, 28, and
28 N L It Il No 155
c 1043
41 t. 9T-42-vol 1S--CT
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
29, 1940, at Houston, Texas, before Charles E. 'Persons, the Trial
Examiner duly designated by the Board. The Board and the Company
were represented by counsel, the Union by its representative; all par-
ticipated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the commencement of the hearing,
counsel for the Company filed a motion to dismiss the petition on the
ground that the Company is not engaged in interstate commerce. The
Trial Examiner reserved ruling thereon. The motion is hereby denied.
At the same time counsel for the Company "moved to dismiss the peti-
tion on the ground that the persons herein involved are not employees,
within the meaning of the Act. The Trial Examiner reserved ruling
thereon. The motion is hereby granted for the reasons stated in Sec-
tion III, below. During the course of the hearing, the Trial Examiner
made several rulings on motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. On September 23, 1940, the Company filed a brief
which the Board has considered.
Upon the entire record in the.case, the Board makes the following:
FINDINGS OF FACT
1. THE -BUSINESS OF THE COMPANY
Houston Chronicle Publishing Company is a Texas corporation pub-
lishing a newspaper in the City of Houston, Texas, called the Houston
Chronicle. The Houston Chronicle is a daily and Sunday newspaper
and has an average daily circulation of approximately 99,000 and a
Sunday circulation of approximately 107,000 copies. The Company
uses approximately 10,000 tons of news-print annually, approximately
80 per cent of which is obtained by it from the Dominion of Canada.
The Company uses news and feature services which collect their mate-
rial in all parts of the country and transmit it to the Company in Hous-
ton, Texas. The Company, on the other hand, supplies material to
national news services for distribution throughout the country. Dur-
ing the first 6 months of 1940, the Company published approximately
7,000,000 lines of advertising, approximately 14 per cent of which
originated from points outside the State of Texas. The Company
employs approximately 578 full-time and part-time employees.
H. THE ORGANIZATION INVOLVED
Houston Newsboys Union, Local 456, , ofi International Printing
Pressmen and Assistants Union, is a labor organization affiliated with
HOUSTON CHRONICLE PUBLISHING COMPANY 1045,
the American Federation of Labor. It admits to membership all per-
sons engaged in selling newspapers in the downtown area of Houston,
Texas.
III. THE RELATIONSHIP OF THE COMPANY TO THE NEWSBOYS
The Union alleges in its petition that all the newsboys selling the
Houston Chronicle in the downtown area of Houston, Texas, constitute
an appropriate unit. The Company contends that these newsboys are
not "employees" within the meaning of the Act and that the Board is,
therefore, without jurisdiction.
The Company's newspaper sales in the downtown area of Houston
are under the supervision of Walter Golden, assistant circulation
manager. The Company keeps a board in its offices that contains 43
hooks, one for each downtown selling station. There are four checks
on each hook, representing the four daily editions of the Houston
Chronicle. The newsboys come to the Company's offices every morn-
ing and remove the checks from the hooks corresponding to their down-
town location. The newsboys themselves are alone responsible for the
location they select to sell newspapers. As each edition is issued by
the Company, the newsboys write the number of papers they desire for
that edition on one of the checks and hand it to an employee of the
Company who then issues to thc,m the desired number of papers. The
Company in no way regulates the number of papers issued to the
newsboys. The newsboys return to the Company's offices every night,
tell Golden how many papers have been issued to them that day,
return their unsold papers, and pay Golden for the niiniber of papers
actually sold by them during that day.
Any person may secure newspapers at wholesale from the Company
to sell on the streets of Houston. Several newsboys testified that they
have repeatedly complained to the Company about other newsboys
selling papers on their corners, but that the Company has consistently
refused to refrain from selling papers to newsboys other than those
who have regular stations in the downtown area.' Although several
newsboys testified that they had been "fired"' by Golden, it appears
that in fact all that had happened is that their papers were given to
other newsboys when they had gotten into trouble and had been unable
to sell them. The record discloses that Golden maintains a paternalistic
attitude toward the newsboys and that on many occasions he has inter-
vened with the police to secure the release of various newsboys from
-jail for minor offenses. Although the Company has received numerous
complaints from various business establishments of Houston about the
1 These stations are "regular" only in the sense that they have been acquired by the
newsboys themselves , who appear there regularly to sell the papers.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct of newsboys selling the Houston Chronicle, the Company has
always replied that it has no control over these newsboys and that it
can take n+o action.
The Company does not keep the names of the newsboys selling its
newspaper on any pay-roll list and Golden testified that he did not
know many of the newsboys by their right names.2 Since the passage
of the Texas Workmen's Compensation Act 15 years ago, the general
manager of the Company has issued orders to its supervisory officials
to be painstakingly careful not. to exercise any, supervision whatsoever
over newsboys selling the Houston Chronicle. Thus, the Company in
practice exercises no supervision or control over the newsboys' activities
on the street with respect to the manner and methods used in news vend-
ing. The Company does not pay Social Security or Workmen's
Compensation taxes on these newsboys.
The newsboys take the risk of loss of papers while in their possession,
have no delivery or location routes, and are not furnished with caps or
other advertising material by the Company.. It' appears from the
record that the chief reason for the newsboys joining the Union is to
have the Company agree to give them exclusive jurisdiction over' their
selling locations and to prevent the sale of papers to other newsboys or
"floaters" who may compete with them.
The majority of the newsboys selling the Houston Chronicle also
sell other newspapers published in Houston, periodicals, and articles
such as chewing gum, candy, and sandwiches. The evidence is clear
that the Company has in no way restricted the right of the newsboys to
sell such articles, periodicals, or newspapers other than the'-Houston
Chronicle. The newsboys have stands at their various locations owned
solely by them or in conjunction with other newsboys on that location.
On this record we find that the newsboys selling the Houston
Chronicle in the downtown area of Houston, Texas, are not "employees"
within the meaning of the Act.3
Upon the basis of the foregoing findings of fact and the entire-record
iii the case, the Board makes the following : -
CONCLUSIONS OF LAW
1. The newsboys selling the Houston Chronicle in the downtown
area of Houston, Texas, are not "employees " of Houston Chronicle
Publishing Company, Houston, Texas , within the meaning of Section 2
(3) of the Act.
2 It appears that the newsboys are known by nicknames such as "Yick-Yack," "Yo-Yo,"
and "The Mule."
8 Cf Matter of Stockholders Publishing Company, Inc. and Los Angeles Newsboys Local
Industrial Union No. 75, C. I. 0.; et al.; Cases Nos. R-1923-6; decided this date.
HOUSTON CHRONICLE PUBLISHING COMPANY _ ,1047
2. No question affecting commerce has arisen concerning the repre-
sentation of employees of the Company.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, the National Labor Relations Board hereby orders that the peti-
tion for investigation and certification filed by Houston Newsboys
Union, Local 456, be, and it hereby is, dismissed.