Las Vegas Review-Journal

National Labor Relations Board - Board Decisions

Apr 7, 1976

223 N.L.R.B. 744 (N.L.R.B. 1976)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donrey , Inc., d /b/a Las Vegas Review-Journal and
General Sales Drivers, Delivery Drivers & Helpers
Local No. 14, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, Petitioner. Case 31-RC-3153
April 7, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Julius N.
Draznin of the National Labor Relations Board. On
June 6, 1975, the Regional Director for Region 31
transferred this case to the Board for decision and
thereafter the Employer and the Petitioner filed
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
Donrey, Inc., an Arkansas corporation, owns and
operates the Review-Journal newspapers in Las Ve-
gas, Nevada. The Review-Journal publishes morning
and afternoon editions and distributes them through
a- circulation department comprised of a circulation
manager, 2 home delivery managers, 6 dealer service
advisors (DCA's), and 97 home delivery, street sales,
and country dealers.
The unit sought by Petitioner includes the 56 home
delivery dealers and II street sales dealers but ex-
cludes the 30 country dealers. The principal issue,
and the one on which we dispose of the case, is
whether any of the individuals in the unit sought are
employees within the meaning of the Act.
Each of the home delivery dealers contracts with
the Review-Journal for a specific district in which he
is responsible for delivering the paper and soliciting
new subscriptions. The Review-Journal sets the dis-
trict boundaries. Occasionally, however, dealers have
requested and received changes in their districts. In
at least two instances, the Review-Journal has asked
dealers to give up parts of their districts. Dealers are
free to solicit and receive "start credit" for new sub-
scriptions outside their districts, but any such sub-
scription is then transferred to the appropriate local
dealer.
The home delivery dealers buy and maintain their
own vehicles, which carry no Review-Journal insig-
nia. Three dealers with large districts receive mileage
allowances from the Review-Journal to defray the
cost of delivery to widely separated subscribers.
Otherwise, the Review-Journal does not pay directly
for any delivery expenses. The Review-Journal sells
delivery supplies, but dealers remain free to buy
them elsewhere.
The dealers employ carriers, who deliver the paper
to subscribers' doors, following routes prescribed by
the dealers. While the Review-Journal circulation of-
ficers occasionally recommend hiring or firing a car-
rier, the dealers make their own decisions about hir-
ing and firing carriers and assigning them to routes.
The Review-Journal furnishes free carrier contract
forms (titled "Independent Newspaper Carrier
Agreement"), including provisions for bonding the
carrier, but the dealers are free to make any contrac-
tual arrangements they choose, and the Review-Jour-
nal formerly gave dealers free advertising for news
carriers but since 1973 the dealers have had to pay
for their own advertising space.
The Review-Journal covers carriers (but not deal-
ers) under its workmen's compensation insurance
and offers accident insurance to the carriers at their
own expense.
Each dealer buys his papers from the Review-Jour-
nal at a wholesale rate intended to reflect the profita-
bility of the particular district. The present dealer
contract form, which governs 35 of the 56 home deal-
erships,' provides for mutual agreement on the
wholesale rate. Several dealers have successfully ne-
gotiated reductions in their rates. Older dealer con-
tracts, however, provide for a rate fixed by the Re-
view-Journal, and the process of mutual agreement
on price often begins with a contract, or a "Price
Change Rider," on which the price has been filled in
before the dealer sees it. Some dealers regard it as
futile to negotiate on the wholesale rate.
Each home delivery dealer sets his own draw
(number of newspapers) and may adjust it daily.'
Dealers receive no credit for unsold papers. Any loss-
es from customer defaults or from property damage
must be borne by the dealer or the carrier but not by
the Review-Journal.
1 The Employer offered testimony that all 56 should have executed the
1972 "Independent Newspaper Dealer Agreement," and that the continua-
tion of the 21 pre-1972 contracts was an oversight.
2 Several witnesses testified about the Review-Journal's practice of freez-
ing the draw. The testimony shows only that the Newspaper imposes dead-
lines after which dealers may not reduce their draws for the day, and that
every month the draw is fixed for several days so that the Review-Journal
can verify its circulation figures to comply with requirements of the Audit
Bureau of Circulation.
223 NLRB No. I l 1
LAS VEGAS REVIEW-JOURNAL
Dealers are encouraged to gain new subscriptions,
and the Review-Journal, through the DSA's, runs
weekly "crew nights" which involve the DSA's deal-
ers and carriers in door-to-door solicitation of sub-
scriptions? While the DSA's sometime urge a dealer
to continue delivery to a particular subscriber, the
dealers generally have the right to refuse service to
remote or nonpaying customers.
Prior to 1972, their contract required home deliv-
ery dealers to sell the paper at retail prices estab-
lished by the Review-Journal. The 1972 contract
form contains no retail price clause. In compliance
with postal regulations, however, the Newspaper
prints its price, and some of its subscription forms
and advertisements list monthly prices as well. While
the circulation manager testified that dealers may set
their own retail prices, he conceded that he knew of
no dealer who charged more than the suggested
price.
Dealers make their own arrangements for billing
or collecting from subscribers. The Review-Journal
bills the dealers monthly for the papers and supplies
they have purchased. When a subscriber pays his bill
by check made out to the Review-Journal, the dealer
deposits the check in a Review-Journal account and
receives credit on his own account with the Newspa-
per.
Dealers must furnish either a cash bond or a surety
bond. Until recently the Review-Journal required
surety bonds procured through one company, and
dealers were billed for the premium on their regular
accounts. At a meeting 4 to 8 months before the
hearing, a circulation officer told some dealers that
they were free to provide a cash bond or a surety
bond purchased from any reliable company.'
The contract also required that dealers carry liabil-
ity insurance, in specified amounts, on their delivery
vehicles , naming the Review-Journal as coassured.
The Review-Journal withholds no taxes and pays
neither social security nor workmen's compensation
for the dealers. Nor does the Newspaper give dealers
paid vacations or holidays, pensions, or profit shar-
ing. It does offer the dealers health and accident in-
surance at their own expense.
The Review-Journal imposes deadlines for the de-
livery of its morning and afternoon editions. To
avoid crowding at the loading dock, the Review-
3 The circulation manager described the crew night activities as optional.
Two dealers testified that they regarded crew night as mandatory , but one
of these two , Richard McClure, acknowledged that he missed some crew
nights without being required to make them up.
The circulation manager and one dealer both testified that dealers had
no choice of bonding companies . Melvin L . Wagner, circulation director
and consultant to the Donrey Media Group, testified that he had explained
the bonding policy at the meeting ; when asked how many dealers were
present , he answered , " it would be more than fifteen."
745
Journal prepares a loading order specifying times for
the dealers to collect their papers. Dealers suffer no
penalty, however, if they arrive late, and they can
arrange to change their positions in the order.
Dealers or their designates must call in at specified
times to receive any complaints. The dealers then
bear responsiblity for correcting the problems. Com-
plaints, however, are closely monitored by the
DSA's, whose earnings depend partly on the number
of complaints in their districts. Persistent complaints
draw attention from the circulation manager and
may become cause for termination of the dealer's
contract.
The circulation manager holds meetings with
home delivery dealers every 2 weeks, and the DSA's
hold occasional meetings with the dealers in their
districts. The circulation manager called these meet-
ings informal and optional; several dealers testified
that they regarded them as mandatory. Witnesses for
both sides testified that roughly 60 percent of the
dealers attend any given meeting.
Dealers may distribute other publications, even
competing publications, or hold other outside jobs.
Several dealers do hold outside jobs, with the circula-
tion manager's knowledge. Dealers dress as they
choose and set their own work schedules, within the
constraints of the Newspaper's delivery deadlines.
Each dealer finds his own substitutes to handle the
work in his absence. Prior to 1972 the dealer contract
prohibited assignment without the Newspaper's per-
mission. The present contract omits this general pro-
hibition but provides for automatic termination of
the contract in the event that either party assigns it
for the benefit of creditors. Otherwise, either party
may terminate at any time upon 30 days' written no-
tice.
The 11 street sales dealers, who sell through news-
stands and vending racks, have contracts which are
nearly identical with the current contract form the
Employer uses for its home delivery dealers. These
contracts include bonding and insurance require-
ments, fixed territories, dealer responsibility for lost
papers, and 30-day termination notice, and contain
blank spaces for the wholesale price per copy. The
only substantive difference is that the street dealers'
contracts allow credit for unsold copies.
Although both contract forms state that the dealer
may purchase as many copies as he wants, the Em-
ployer controls the number of Sunday papers the
street dealers may draw, and perhaps exercises some
control on other days.5
The contract forms also indicate that the wholesale
The principal record reference to this subject is as follows:
Q. Is a street dealer able to govern his draw as well as a home deliv-
Continued
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prices to the dealers are mutually agreed upon. There
appears to be an opportunity for negotiation if the
dealer is unsatisfied with the Employer's price pro-
posals (at least when prices are raised for existing
dealers) though some dealer witnesses characterized
these proposals as "take it or leave it" affairs. The
same opportunity for negotiation appears to exist for
the street dealers as for the home dealers.
Concerning the price street dealers receive on re-
sale, they may establish their own prices or consign-
ment arrangements with newsstands and other out-
lets, and theoretically may set their own prices for
sale in the vending racks. They rent the racks from
the Employer,6 and would have to replace the coin
mechanism in order to vary from the standard retail
price. There is no evidence as to how much of their
business is with newsstands and how much in racks.
Maintenance of the racks is the street dealers' re-
sponsibility and any complaints from customers are
referred to them. The Company says it is up to the
dealer whether to reimburse a customer for money
lost in the machine.
Street dealers may rent as many racks as they de-
sire and determine where to place them. Like the
home delivery dealers, they may hire helpers or sub-
stitutes. There is no evidence as to whether any of
them do so.
It is the nature of the street dealers ' operations that
they have less "supervision" from the Employer than
do the home dealers. One district service advisor
(DSA) is responsible for the 11 street dealers and 30
country dealers, while 5 other DSA's are responsible
for a total of 56 home dealers, or 11 each. Unlike the
home dealers, there is apparently no requirement
that the street dealers call in regularly to check on
customer complaints , and there is no evidence that
they are requested to attend sale promotion meetings
and events . Home dealers must submit monthly re-
ports on circulation and unsold papers . Street dealers
report on this quarterly.
cry dealer? Or is the draw in some cases governed for a street dealer by
the newspaper?
A. In some cases it is governed by the Review-Journal, yes.
Q. For street dealers only?
A. Yes. Street dealers only, yes.
Q. In what cases?
A. An example would be our Sunday street sales.
Q. The Review-Journal for Sunday sales controls the draw, then-
A. Yes.
Q. -for street sales?
A. Yes, we do. We feel that because we are giving back full returns
for any of the unsold papers.
Elsewhere , a company official testified that home delivery dealers are dis-
couraged from accepting Sunday -only subscriptions "because of the cost of
putting together the Sunday newspaper."
6 The dealers own their own locks for the racks, and keep all the keys.
In the Board's recent decision in Las Vegas Sun,
Inc., 219 NLRB 889 (1975), it found the home deliv-
ery dealers petitioned for in that case to be indepen-
dent contractors and therefore not employees within
the meaning of Section 2(3) of the Act. That decision
is undisputably controlling as to the home delivery
dealers in the instant case , whose position not only is
virtually identical to that of those in Las Vegas Sun,
but exhibits no aspect that even arguably distin-
guishes it from the Sun in a manner supporting em-
ployee status.
As for the street sales dealers, we do not find such
significant differences between them and the home
delivery dealers as would warrant treating them
otherwise. One difference which, viewed in isolation,
appears to reduce the entrepreneurial aspect of the
street dealers' operations is that they receive credit
for unsold papers and are correspondingly limited to
some extent in the number of papers that are made
available to them. The Board has relied in part on
such matters in the past. But, at least in the instant
case, the difference in this respect between the home
and the street dealers may be more formal than sub-
stantial. In the nature of the home dealers' opera-
tions they can reasonably be expected to know near-
ly how many copies they need from day to day to
supply their subscribers. The street dealers cannot.
Were the street dealers not given credit for returns
their risk of loss would be much greater than it is for
the home dealers. As it is, their reduced opportunity
for profit or loss because of this difference is mini-
mal. On the other hand, it is arguable that the street
dealers are more independent of the Review-Journal
than are the home dealers because the performance
of the street dealers' function is reviewed more spo-
radically.
In San Antonio Light Division, The Hearst Corpora-
tion,' the Board found street vendors, whose opera-
tions were very similar to the street dealers here, to
be employees. However, whereas we have found here
that there is some opportunity for negotiation of the
price the dealers pay per copy, such a contention was
specifically rejected in San Antonio Light.8 On con-
sideration of all the similarities and differences
among the dealers of the Review-Journal and of the
Light, we are persuaded that the precendential
weight of the Light decisions is less than that of the
considerations which point us toward the conclusion
167 NLRB 689 (1967); 174 NLRB 934 (1969).
It is also worthy of note that prior to the decisions finding the street
vendors to be employees, the Board had found newspapers' home dealers to
be employees . San Antonio Light Division, Hearst Consolidated Publications,
Inc., 130 NLRB 619 (1961).
LAS VEGAS REVIEW-JOURNAL 747
that the street dealers as well as the home dealers of ORDER
the Review-Journal are independent contractors.
As we have concluded that the dealers sought It is hereby ordered that the petition herein be, and
herein are independent contractors, we shall dismiss it hereby is, dismissed.
the petition.