Newsday, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1968

171 N.L.R.B. 1456 (N.L.R.B. 1968)

1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newsday, Inc. and Nassau County Printing Press-
men and Assistants Union Local 406, Interna-
tional Printing Pressmen and Assistants' Union of
North America , AFL-CIO, Petitioner. Case
29-RC-909
June 17, 1968
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Richard J.
Roth. After the hearing was closed, the Regional
Director transferred the case to the National Labor
Relations Board in accordance with Section
102.67(h) of the Board's National Labor Relations
Board Rules and Regulations, Series 8, as amended.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
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
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent employees of the Employer.
3. The Employer is engaged , at Garden City,
Long Island , New York, in publishing a newspaper.
The Petitioner requests an election in a unit of 260
"District Circulation Managers," herein called
managers , employed by the Employer. The Em-
ployer questions whether the managers are super-
visors of the carrier newsboys, whom it concedes it
has always considered to be independent contrac-
tors. The Petitioner contends the carrier boys are
independent contractors or, in any event, not em-
ployees of the Employer.
Managers are responsible for the distribution and
sale of the newspapers. They are hired by manage-
ment and are carried on the Employer's payroll.
They are paid salaries , which average $95 a week,
from which the Employer withholds income tax, so-
cial security, and other deductions. They are
required to have an automobile, for which they
receive a car allowance. They work 7 hours a day,
as do other employees of the Employer, are as-
signed to offices rented by the Employer, and are
provided with all necessary materials. They receive
a guidebook detailing their duties and report to
their supervisor twice daily. They may not sell or
distribute other periodicals.
Managers recruit, train, and direct carrier
newsboys, whom they assign to routes and may ter-
minate at their discretion. The average carrier boy
is 13 years old, and works from 6 months to a year.
Boys are required by New York State statute to
have written permission from their parents and cer-
tification of good standing in school. They provide
their own substitutes and may not distribute other
publications.
Carriers are not on the Employer's payroll, and
although they are, under state law, covered by
workmen's compensation insurance, no deductions
are made from their income. Their compensation
consists of the difference between the wholesale
price of their newspapers and the amount of money
they collect from their customers at the retail price.
Various plans are suggested by the Employer for in-
creasing profits by solicitation, and incentives are
offered toward this objective. Out of his profits, a
carrier buys his own Newsday carrier bag, collec-
tion book, and any additional equipment desired
such as a wagon or bicycle. He must pay his bill to
the manager every week regardless of his collec-
tions and no credit is advanced. The carrier is not
credited for unsold papers and bears the loss when
his customers fail to pay or he fails to collect. He
must post a bond in an amount equivalent to an
average week's remittance, or a minimum of $10;
amounts over $20 receive 6 percent interest paya-
ble, along with unforfeited principal, upon sur-
render of his route.
We find, on the basis of the facts set forth above,
that the district circulation managers, although em-
ployees of the Employer, are not supervisors within
the meaning of the Act. As noted above, the Em-
ployer, in line with the Petitioner's contention, con-
cedes it has always considered the carriers to be in-
dependent contractors. We accordingly find that
the carrier boys are not employees of the Em-
ployer. As the managers therefore do not exercise
supervisory authority over any employees of the
Employer, we find that, in their employment rela-
tionship with the Employer which is the only rela-
tionship relevant here, the managers are not super-
visors within the meaning of the Act.'
Accordingly, we find that a question affecting
commerce exists concerning the representation of
certain employees of the Employer within the
' El Mundo , Inc., 167 NLRB 760, News Syndicate Co, Inc., 164 NLRB
422; Eureka Newspapers, Inc, 154 NLRB 1 181
171 NLRB No. 184
NEWSDAY, INC.
meaning of Sections 9(c)(1) and 2 ( 6) and (7) of
the Act.
4. We find that the following employees of the
Employer constitute an appropriate unit for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act: All district circula-
tion managers , excluding all other employees and
f An election eligibility list , containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 29 within 7 days after the date of this Decision and Direction of
Election . The Regional Director shall make the list available to all parties
to the election . No extension of time to file this list shall be granted by the
1457
supervisors within the meaning of the Act.
The name of the Petitioner will appear on the
ballot as it requested at the hearing, in the absence
of objection.
[Direction of Election omitted from publica-
tion. ]2
Regional Director except in extraordinary circumstances. Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed . Excelsior Underwear Inc., 156 NLRB
1236.