Northwestern Publishing Co.

National Labor Relations Board - Board Decisions

Oct 14, 1963

144 N.L.R.B. 1069 (N.L.R.B. 1963)

NORTHWESTERN PUBLISHING COMPANY 1069
may be affected by an agreement executed in conformity with Section 8 (a) (3) of the
Act.
ONTARIO FOODS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from date of posting,
and must not be altered, defaced , or covered by any other,material.
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone No. Dunbar 1-1420,
if they have any question concerning this notice or compliance with its provisions.
Northwestern Publishing Company and Chauffeurs , Teamsters
and Helpers , Local No. 26, affiliated with the International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Case No. 13-CA-5083. October 14, 1963
DECISION AND ORDER
On February 14, 1963, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief and the General Coun-
sel filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case,' and adopts the findings, conclusions, and recommendations
of the Trial Examiner to the extent consistent herewith.2
Northwestern Publishing Company, the Respondent herein, is a
publisher of a newspaper in Danville, Illinois. In January 1962,3
Chauffeurs, Teamsters and Helpers, Local No. 26, the Union herein,
petitioned for an election in a unit of the Respondent's newspaper
delivery drivers .4 Following a hearing, the Regional Director, in April,
1 The Respondent's request for oral argument is denied , as the record , the exceptions,
and the briefs adequately present the Issues and the positions of the parties.
ewe hereby correct the following inadvertent error in the Intermediate Report: the
election in the prior representation proceeding , Case No. 13-RC-8319, was held on May 9,
not May 19, 1962.
8 All dates herein are in 1962, unless otherwise stated.
d Case No. 13-RC-8319, not published in NLRB volumes
144 NLRB No. 98.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued his Decision and Direction of Election, finding appropriate a
unit of all the Respondent's bundle and tube drivers,5 and rejecting
the Respondent's contention that its drivers were independent contrac-
tors. On May 3, the Board denied the Respondent's request for review
of the Regional Director's decision. On May 17, after an election, the
Regional Director certified the Union as representative of employees
in the above unit. Between June 8 and August 30 the Respondent and
the Union met approximately 11 times for the purpose of negotiating a
contract, but reached no agreement. In August the Respondent an-
nounced that it was changing its bundle delivery system and terminat-
ing 10 bundle drivers. In September the Respondent terminated 10
drivers and instituted the new bundle delivery system.' On October 5,,
the complaint, alleging that the Respondent had violated Section_
8(a) (1), (3), and (5) of the Act, was issued.
1. The Trial Examiner found, and we agree, that since May 17,.
1962, the Union has been the duly certified bargaining representative
of all bundle drivers and tube drivers engaged in the distribution of
the Respondent's newspapers. We agree with the Trial Examiner, for
the reasons set forth in the Intermediate Report, that the Responednt
was precluded from relitigating in this proceeding the determination
by the Regional Director that these drivers were employees and not,
independent contractors.
2. We further find, in agreement with the Trial Examiner, that the
Respondent violated Section 8(a) (5) and (1) of the Act by refusing
to bargain in good faith with the Union. As described more fully in
the Intermediate Report, on May 17 the Union was certified as rep-
resentative of employees in a unit of all the Respondent's bundle and
tube drivers, the Regional Director having rejected the Respondent's
contention that these drivers were independent contractors. Between
June 8 and August 30 the Respondent and the Union met approxi-
mately 11 times and discussed various matters relating to a proposed
collective-bargaining -agreement. Early in this series of meetings,
the Respondent took the position that it had individual contracts with
its drivers and that until such time as the Respondent terminated these
contracts its drivers would remain independent contractors. The Re-
spondent took the further position that since its drivers were independ-
ent contractors, it was free to make changes in the drivers' status and
6 Bundle drivers deliver bundles of newspapers to newsboys in the city ( city bundle
drivers ) and in the nearby areas ( country bundle drivers) These newsboys in turn de-
liver the newspapers to the subscribers on their routes Tube drivers deliver newspapers
by motor vehicle in the more distant rural areas , placing the subscriber 's paper in a metal
tube provided for that purpose.
6 The Respondent consolidated its country bundle delivery routes and assigned most of
the city bundle delivery work to persons on its payroll who theretofore had not been
bundle drivers As a result of these changes , fewer bundle drivers were needed , and the
10 bundle drivers were terminated.
NORTHWESTERN PUBLISHING COMPANY 1071
-working conditions. Consistent with this view, in June the Respond-
ent informed the Union that it would probably set up a new system of
distribution; in July the Respondent stated that some of the bundle
routes would be consolidated, that some of the bundle drivers would
be laid off, that the tube routes were unprofitable, and that some, if not
.all, of these routes would be discontinued; and in August the Respond-
,ent outlined a new system of bundle delivery to the Union and notified
the 10 dischargees that their services would be terminated as of
September 3. Significantly, as late as August 1, when the Union asked
the Respondent to consider seniority in deciding which of its drivers
to retain, the Respondent insisted that the drivers' years of service with
the Company would mean nothing until they were hired as employees.
,On September 4 the Respondent formally instituted its new system of
bundle delivery.
The Trial Examiner found, and we agree, that the Respondent
violated Section 8 (a) (5) and (1) of the Act. Like the Trial Examiner
and for the reasons set forth by him, we find separate violations
thereof by : (1) the Respondent's maintaining its position during
,the meetings with the Union, contrary to the determination of the
Regional Director as affirmed by the Board,' that its drivers were
independent contractors and not employees; 8 (2) its refusal to furnish
-the Union with certain wage data concerning its tube drivers; 9 and
(3) its conduct in unilaterally instituting changes in its bundle
delivery system and in discharging the 10 drivers. As to (3), the
Board, with court approval, has long held that an employer must
afford the exclusive bargaining representative of its employees an
opportunity to bargain respecting contemplated changes in the wages,
hours, and working conditions of its employees.1o In the instant case,
the Respondent, pursuant to its decision to 'consolidate routes and
make other changes in its bundle delivery system and in furtherance
.of its position that the affected drivers were not then its employees,
established and adopted new routes, hourly rates, and mileage reim-
bursement rates and selected for discharge and terminated 10 em-
ployees, all without bargaining collectively in good faith about these
matters. In fact, all were presented to the Union as a final determina
7 Section 102.67 ( f) of the Board ' s Rules and Regulations , Series 8, as amended
8 Contrary to the Respondent's adamant position , the drivers were found to be em-
ployees as of that time , and no action was required by the Company to convert them to
the status of employees
8 Like the Trial Examiner, we find no merit in the Respondent 's contention that its re-
fusal to supply this information was not unlawful since the Union could have obtained
the information from the drivers themselves J H Allison & Company, 70 NLRB 377,
^enfd. 165 F . 2d 766 ( CA. 6), cert . denied 335 U.S. 814; rehearing denied 335 U.S. 905;
Stowe-Woodward, Inc, 123 NLRB 287, footnote 6.
16 N.L R.B. v. Benne Katz, d /b/a Williamsburg Steel Produ cts Co., 369 U.S. 736;
Smith's Van & Transport Company, 126 NLRB 1059 ; Rapid Bindery, Inc., 127 NLRB
212, 220, enfd. in relevant part, 293 F . 2d 170 (CA. 2).
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. The Respondent thereby unilaterally effected changes in the
wages, hours, and working conditions of both the employees retained
as well as those who were terminated. Such effectuation was itself
tantamount to a rejection by Respondent of its collective-bargaining
obligation and was thus a refusal to bargain with the Union.
The Trial Examiner further found, and we agree, that each of
the above violations constituted evidence of the Respondent's lack
of good faith in its bargaining with the Union and that, based on
the totality of the Respondent's conduct, the Respondent did not
bargain in good faith on and after July 3, 1962.
3. We also find, as did the Trial Examiner, that the Respondent
discharged 10 bundle drivers for discriminatory reasons in violation
of Section 8(a) (3) and (1) of the Act. The Trial Examiner, in find-
ing that the Respondent selected the 10 bundle drivers for discharge
on discriminatory grounds, relied principally on the facts that 3 of
the 10 terminated bundle drivers were members of the Union's ne-
gotiating committee ; that 6 of them, including 2 of the aforementioned
committee members, were seen by the Respondent's circulation man-
ager in a tavern with the union business agent after a union meeting;
and that the Respondent did not in fact make its selections on the
basis of its claimed criteria. In adopting the finding by the Trial
Examiner that the Respondent discharged the drivers for discrim-
inatory reasons, we also rely on the following considerations : On
July 3, when the Respondent first announced to the Union the pro-
posed changes in its distribution system, it stated that the tube
delivery system was unprofitable and that some or all of the tube
routes should be discontinued. The Respondent at that time said
nothing about making changes in its bundle delivery system. How-
ever, ultimately the Respondent made changes only in the bundle
delivery operation, which it never claimed to be unprofitable, but
not in the allegedly unprofitable tube delivery system." In this con-
nection, we view as particularly significant the fact that the Respond-
ent knew of the large concentration of union adherents among the
bundle drivers; 12 that all the bundle drivers who the Respondent
knew were union members were discharged; and that the Respond-
ent's decision to make the changes in its distribution system was made
shortly after the Union became the drivers' certified representative.13
u As of the time of the hearing herein , November 27 , 28, and 29, no changes had been
made regarding the status of the tube drivers.
12 Thus, three of the four employee members of the union negotiating committee and
six of the seven drivers who were seen by the Respondent 's circulation manager in the
tavern with the union business agent after a union meeting were bundle drivers. While
the fourth member of the negotiating committee and the seventh driver at the tavern
were tube drivers, the Respondent had knowledge that seven of its bundle drivers were
union sympathizers but that only two of its tube drivers were union sympathizers.
13 On May 9 the representation election was held in the related representation case. In
late June , the Respondent informed the Union that it would probably be forced to set up
a new system of delivery and announced its tentative changes at the July 3 meeting.
NORTHWESTERN PUBLISHING COMPANY 1073
In view of these circumstances, we reject the Respondent's contention
that it instituted the new bundle delivery system for economic reasons.
We find, rather, that the Respondent's discharge of its drivers in con-
nection with its decision to change its bundle delivery system was moti-
vated by its desire to dissipate the Union's majority. Accordingly,
the discharges and Respondent's failure and refusal thereafter to
reinstate such drivers violated Section 8(a) (3) of the Act.14
THE REMEDY
We have found that the Respondent violated Section 8(a) (5) and
(1) of the Act by, among other things, unilaterally making changes in
its bundle delivery system, including the consequent discharge of 10
of its bundle drivers. We have also found that the Respondent's deci-
sion to change its bundle distribution system and its discharge of the
10 drivers was violative of Section 8 (a) (3) and (1) of the Act. Ac-
cordingly, in order to remedy these violations of the said section
of the Act, and to prevent the Respondent from enjoying the fruits
of its unlawful action, we shall adopt the Trial Examiner's recom-
mended order that the Respondent reinstate its bundle delivery sys-
tem as it existed prior to September 4, the date upon which the new
system was put into effect, by restoring its drivers to the positions
which they previously had held or to substantially equivalent positions,
and by making the drivers whole for any loss which they may have suf-
fered by reason of the Respondent 's unlawful actions, and , further,
that the Respondent bargain collectively with the Union as the rep-
resentative of the employees in the appropriate unit. In the present
circumstances , moreover , we would order resumption of the bundle
operations as they existed prior to September 4 and reinstatement
of the drivers with backpay even absent a finding of unlawful
discrimination.
ORDER Is
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications : Paragraph 2(c) of the
Trial Examiner's Recommended Order is amended by addition of the
14 Although, as noted, the Trial Examiner found that the Respondent had knowledge of
the union sympathies of only 7 of the 10 discharged bundle drivers, the Board has held
that where, as here, an employer lays off a group of employees for discriminatory reasons,
such conduct is unlawful as to all employees in that group, even as to those employees
who are nonunion or to those whose union sympathies are unknown to the employer
Ellis and Watts Products, Inc, 130 NLRB 1216, 1220; Arnoldware, Inc, 129 NLRB 228
15 The notice is hereby amended by replacing the present last paragraph immediately
below the signature line by the following paragraph:
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following clause at the end thereof : "in the manner and to the extent set
forth in the section of the Intermediate Report entitled `The Remedy'
as modified by this Decision and Order."
MEMBER LEEDOM, concurring in part and dissenting in part :
I 'agree with my colleagues that the Respondent violated Section
8 (a) (1) and (3) of the Act, as set forth in the majority opinion. I
also agree that the Respondent violated Section 8(a) (5), but do
not agree with all of their subsidiary findings with respect to that
violation ; nor do I agree entirely with their Order.
Thus, as to the violation of Section 8(a) (5), I agree that the Re-
spondent is precluded from relitigating the Regional Director's de-
terminations underlying the Union's certification as the representative
of the Respondent's bundle drivers and tube drivers. I also agree
that the Respondent violated Section 8(a) (5) when it maintained
its position in bargaining negotiations that its drivers were not em-
ployees, thereby effectively foreclosing a full discharge of its bargain-
ing obligation concerning these drivers; and also when it refused to
furnish certain wage information.
However, I disagree with the majority insofar as they hold that
the Respondent violated Section 8 (a) (5) by failing to bargain with
the Union concerning an economically motivated decision to make
structural changes in its business by consolidating routes and by mak-
ing other modifications in its methods of operations. Such matters
are the type of basic management decisions as to which the Act, in
my opinion, does not require bargaining.16 I agree, however, that the
Act requires the Respondent to bargain with the Union regarding
the effects of such economic decisions on employees." Thus, since
the majority found, and I agree, that the Respondent unilaterally
modified hourly rates and mileage reimbursement rates for employees
and it unilaterally decided which of its drivers it would retain and
which it would discharge, I would find that by this conduct the Re-
spondent violated Section 8 (a) (5).
As I would not find that the Respondent violated Section 8(a) (5)
by failing to bargain with the Union concerning an economically
motivated decision to make structural changes in its bundle delivery
system, unlike the majority, I do not agree that the order to resume
the bundle delivery system as it existed prior to September 4, 1962,
could be supported in the absence of the finding of discrimination
in violation of Section 8(a) (3). However, since the majority found,
19 Fibreboard Paper Products Corp., 130 NLRB 1558.
17 See my concurring opinion in Adams Dairy, Inc., 137 NLRB 815, and the decision of
the Circuit Court for the Eighth Circuit denying enforcement in pertinent part to that
Board decision , N.L.R.B. v. Adams Dairy, Inc , 322 F. 2d 553 (C.A 8). The court held
that an employer was not obligated by Section 8(a) (5) of the Act to bargain with a
union over the economic decision to subcontract a portion of its business but that it was
,obligated to bargain regarding the effect of such decision on employees.
NORTHWESTERN PUBLISHING COMPANY 1075
and I agree, that the Respondent's decision to modify the bundle
system and to discharge certain bundle drivers was motivated by
antiunion considerations, in violation of Section 8(a) (3), in order
to remedy such violation, I would adopt the Trial Examiner's rec-
ommendation that the Respondent reinstate its bundle delivery system.
Further, without reaching the question whether the Respondent
should be required to reinstate its bundle drivers with backpay in
order to remedy its unlawful failure to bargain with the Union con-
cerning the effects on employees of its decision to modify its delivery
routes, I would, in view of my agreement with the majority that the
Respondent violated Section 8(a) (3) by discharging its bundle de-
livery drivers for discriminatory reasons, predicate the reinstatement
and backpay remedy on such violation. I agree that the Order which
the majority enters is otherwise appropriate.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations Act
as amended (61 Stat. 136; 73 Stat. 519), was heard before Trial Examiner George A.
Downing in Danville, Illinois, on November 27, 28, and 29, 1962, pursuant to due
notice. The complaint, issued on October 5, 1962, by the General Counsel of the
National Labor Relations Board, on a charge and an amended charge dated August 20
and 27, respectively, alleged in substance (as amended during the hearing) that
Respondent, Northwestern Publishing Company,' engaged in unfair labor practices
proscribed by Section 8(a) (1), (3), and (5) of the Act by (1) engaging in surveil-
lance of a union meeting on May 7, 9162; 2 (2) discharging 10 employees on Septem-
ber 3 because of their union membership and activities or other concerted activities;
and (3) refusing to bargain with the Union as the duly certified bargaining representa-
tive of its employees in an appropriate unit
Respondent filed an answer and an amended ,answer in which it denied the alleged
unfair labor practices and in which it attacked as error the Regional Director's hold-
ing in the prior representation proceeding (Case No. 13-RC-8319) that certain
bundle drivers and tube drivers were properly includible in the certified unit as em-
ployees, rather than independent contractors as claimed by Respondent.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent, an Illinois corporation with its principal office at Danville, is the
publisher of the Danville Commercial News, a newspaper with a circulation of ap-
proximately 35,000 in the city of Danville and the surrounding area, including 5
counties of nearby Indiana. Respondent's gross annual business exceeds $1,000,000
and it derives annually revenues in excess of $50,000 from advertising nationally sold
products.
I find that Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Party, herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
1 Respondent's correct name, as amended at the hearing
2 All events occurred in 1962, unless otherwise specified.
727-083-64-vol. 144-69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the representation proceeding; the issues
This case arises from a prior representation proceeding conducted by the Regional
Director under Board Rules and Regulations Section 102.67 in Case No. 13-RC-8319,
which began on January 2 when the Union petitioned for an election in a unit of bundle
drivers and tube drivers engaged in the distribution of Respondent's newspapers.
Following a hearing on January 29, the Regional Director issued his Decision and Di-
rection of Election on April 9, finding the following unit to be appropriate for the
purposes of collective bargaining within Section 9(b) of the Act:
All out-of-town and city bundle-delivery drivers, including bundle drivers who
operate from substations, and all tube or mounted motor distributors employed
at the Employer's Danville, Illinois, plant; but excluding all other employees
and supervisors as defined in the Act.
The Regional Director appended a footnote (see Appendix A) in which he fully
explicated the basis of his decision that the drivers were employees.
Respondent uses bundle drivers in the city and in the nearby areas to deliver to
newsboy carriers in bundles the newspapers which the carriers in turn deliver to sub-
scribers on their routes. Respondent had formerly served the more distant rural
areas by mail, but in September 1961 it began to convert to a tube route delivery
system, under which Respondent's tube drivers placed the subscriber's paper in a
metal tube provided for that purpose. At the time of the election there was a total
of 38 bundle and tube drivers in the above unit, all of whose names appeared upon an
agreed eligibility list.3
On April 19 Respondent filed with the Board, pursuant to Rules and Regulations
Section 102.67(b), its request for review of the Regional Director's decision in
which it attacked the holding that the drivers were employees. The Board denied
the request on May 3 on the ground that it raised no substantial issues of fact or law
warranting review.
At the election held on May 19 the Union received 19 of the total of 37 votes
cast; there were no challenged ballots and no objections were filed. On May 17 the
Union was certified by the Regional Director.
When negotiations opened on June 8, the bundle drivers numbered approximately
21, with 9 in the city and 12 in the adjoining area. In the meantime the tube drivers
had increased to 22 and were serving some 2,500 subscribers formerly reached by
mail delivery. Negotiations continued until August 30, but no agreement was
reached.
On September 3, Respondent terminated 10 of its bundle drivers. On September 4,
Respondent effected certain changes in its delivery system as to bundle drivers,
consisting mainly of the consolidation of routes, the use of five district men (claimed
by the General Counsel to be supervisors) as the regular city drivers, and the use
of five "swing" drivers in the city, including two part-time employees, Larry Black and
John Dyar, Jr. Neither the latter nor the district men had formerly been within the
unit.
Aside from a single instance of alleged surveillance , all issues herein stem directly
from the alleged refusal to bargain, which is claimed specifically to have occurred in
the following respects: (1) The refusal to negotiate on wages, hours, seniority, delivery
routes, the hiring and replacement, and other conditions of employment of certain of
the drivers; (2) the refusal to furnish relevant data concerning the compensation of
the tube drivers; and (3) unilateral action by Respondent in determining which
bundle drivers to retain and which to terminate, in discharging 10 bundle drivers,
in replacing the bundle drivers with district men and other employees who were not
formerly in the unit, and in changing the wages, hours, delivery routes, and other
conditions of employment of the bundle drivers.
By answer, Respondent defended the alleged refusal to bargain in part on the
ground that the Regional Director erroneously decided that the drivers were em-
ployees, and by averring further that in any event it fully met its obligation to bargain
during the course of the negotiations but that agreement was forestalled or prevented
by the Union's submission of demands which were exorbitant and ridiculous and
which forced it to make a change in its methods of distribution. The latter defense is
restated in Respondent's brief as follows: "[T]he Company, in the exercise of business
3 Neither the specified unit nor the eligibility list included certain part-time employees
such as Larry Black and John Dyar, Jr, nor were such part-time employees covered by
the collective-bargaining agreements which Respondent has had for many years with ITU
and with the Pressmen's Union covering employees in its mechanical departments, its
mailroom, and its press and stereotype departments.
NORTHWESTERN PUBLISHING COMPANY 1077
judgment and motivated by financial and economic reasons, instituted a new system
of newspaper distribution which involved the termination of certain persons'
relationships with the Company , be they employees or independent contractors."
The main issues herein concern Respondent 's refusal to bargain as alleged and the
extent to which Respondent was free, independently and unilaterally , to effect changes
in its distribution system and in various aspects of the employment relationship with
the drivers.
I shall dispose first of the alleged surveillance and next of the question of the
finality of the Regional Director 's determination , before turning to the major issues
surrounding the negotiations and Respondent 's subsequent conduct.
B. The alleged surveillance
The evidence does not establish that Respondent engaged in surveillance as alleged.
The only incident occurred after a meeting of employees on May 7 at the Teamsters
hall on Main Street in downtown Danville ( population 42,000). Winifred Young-
blood, bundle driver, testified that after the meeting she and some of the other
employees went to Dan's Tavern (which was separated by a vacant lot from the
union hall ) for a drink , and there she saw Circulation Manager George Evans
sitting in a booth talking with a Mr. Wooddrove (Woodrow), who had introduced
himself at the union meeting as a tube driver Clarence Frees, a bartender at the
tavern, testified that that was the only occasion on which he had ever seen Evans
in the tavern and that Evans was there for 11/2 to 2 hours.
Though Evans' presence at the tavern was certainly suspicious under the circum-
stances, the evidence falls short of establishing that Evans was engaged in surveil-
lance of a union meeting or of other concerted activities. The meeting was concluded
at the union hall before the employees repaired to the tavern for refreshments, and
there was no suggestion that it was continued at the tavern, that any concerted
activities within the meaning of Section 7 occurred at the tavern , or that Evans
was there for the purpose of spying upon the employees or for the purpose of
creating the impression of surveillance . Though Wooddrove's testimony might
well have thrown much illumination on the purpose of Evans' presence on the
occasion, he was not called as a witness , nor was other light offered.
Though I conclude that surveillance was not established , the incident served
to establish Respondent 's knowledge of the union activities of some of the drivers
who were present at the time with DePratt ( the Union 's business agent).
C. The attempt to relitigate the Regional Director 's decision
Respondent 's primary defense to the alleged refusal to bargain is that the
Regional Director erroneously held that Respondent 's drivers were employees , rather
than independent contractors . Though that issue was squarely litigated in the
representation hearing, Respondent sought to relitigate it herein . Objections were
sustained to much of the proffered evidence (incorporated in offers of proof),
though other portions were received because of their incidental connection with
the negotiations . Much of the proffered evidence was plainly available to Respond-
ent at the time of the representation hearing; and though Respondent asserted that
some portions became known to it during the negotiations , those portions were of
a purely cumulative nature. Indeed , Respondent 's formal request for review as
submitted to the Board cited record references to evidence on each point concerning
which cumulative evidence was later offered herein, e.g ., that some of the drivers
have other employment and haul for others, including other newspapers ; that they
sometimes use substitute drivers; and that Respondent does not know the person
who actually does the hauling for the drivers.
By brief Respondent concedes that under Board Rules and Regulations Section
102.67( f) (if valid ) the denial by the Board of its request for review precluded
it from relitigating herein any issue which was raised in the representation proceed-
ing, and that the Trial Examiner , bound by that regulation , properly rejected the
evidence by which it sought to relitigate the status of the drivers as independent
contractors . It will suffice , therefore , to note here that the effect of the regulation
is to clothe the Regional Director's decision , where a request for review is denied,
with the same status and degree of finality as were possessed by Board decisions
prior to the delegation . The Mountain States Telephone and Telegraph Company,
136 NLRB 1612, and cases there cited in footnote 3. And the prior law was, of
course, long since settled by such familiar cases as Pittsburgh Plate Glass Company v.
NL.R.B., 313 U.S. 146, 158, 161 , 162; Allis-Chalmers Manufacturing Company v.
N.L.R It., 162 F. 2d 435, 440-441 (C.A. 7); N.L.R.B. v. Worcester Woolen Mills,
170 F. 2d 13 (C.A. 1).
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The refusal to bargain
1. The negotiations
Negotiation meetings were held on June 8, 12, and 22 , July 3, 18, 20 , and 25,
and August 1, 17, 27, and 30. The Union was represented by its business agent,
Robert DePratt , and by an employee committee consisting of tube driver Russell
Johnson and bundle drivers Eulah Swift, Flossie Frazee , and Eugene Hurley. Re-
spondent was represented by Robert Burow, general manager, George Evans, cir-
culation manager , Martin Gagie , executive editor, and Frank Meyer , attorney.
Burow and DePratt acted as chief spokesmen . The August meetings, except the
final one, were attended by Harold Beck, a Federal mediator , who was called in
by the Union. The principal witnesses were DePratt, Swift , and Frazee for the
General Counsel and Burow and Evans for Respondent.
A union proposal submitted to Respondent prior to the first meeting served as the
basis of discussions during the June meetings . Respondent submitted a counter-
proposal on July 18, and its provisions were discussed in ensuing meetings . Though
agreement was reached on minor and peripheral matters in both proposals, no
progress was made on the major points and the parties were never near an agreement.
As there is no serious conflict in the testimony concerning the matters which are
controlling of the decision herein and as both parties reached positions early in
the negotiations which were thereafter maintained without substantial change, it
would be unrewarding to summarize in detail the discussions at each meeting, par-
ticularly since such a treatment would entail endless repetition . I shall therefore
outline briefly the aspects of the negotiations which more directly concerned the
matters which prevented the reaching of an agreement , omitting matters which
were without bearing on the ultimate failure to agree.4
Though at the outset Burow expressed awareness that Respondent would have
to bargain for the drivers as employees and that it could not , under the Board
decision , continue its independent contractor system of distribution , it was soon
apparent that Respondent did not in fact accept or acquiesce in the Board's ruling.
Thus in later June meetings Burow took the position , thereafter consistently main-
tained throughout the negotiations , that the drivers continued to be independent
contractors and would not become employees until Respondent terminated the
existing contracts and hired the drivers as employees . Though Burow denied that
he continued to insist , after the third or fourth meeting, that the drivers were
independent contractors, his testimony was overborne by the mutually corroborative
testimony of DePratt , Swift, and Frazee . Furthermore , Evans testified that neither
the bundle drivers nor the tube drivers were treated as employees during the
course of the negotiations , that Respondent has continued in full force the lease
agreements with the tube drivers , and that it has not yet "gotten around to" hiring
the tube drivers as employees.
Respondent 's rejection of the Union's seniority demands was based in part also
on its assertion that , until the drivers ' contracts were terminated and they were hired
as employees , the drivers were not entitled to seniority . DePratt's testimony to
that effect was corroborated by both Swift and Frazee. Indeed Swift testified, without
denial , that during a discussion of seniority as late as August 1 Frazee inquired
of Burow whether her 7 years of work for the Company meant nothing and that
Burow replied , "[N]o, not until you are lured."
Respondent's other objections to seniority were based on the fact that it had
selected its drivers because of the geographical areas in which they lived and in
which their routes were located and that the very nature of their work would make
it impracticable for a tube driver to transfer to a bundle drivers' territory or vice
versa. Both Burow and Evans conceded that DePratt suggested the possibility of
maintaining separate seniority lists for bundle drivers and tube drivers , but Re-
spondent objected that this was no more feasible on an overall basis. At some points
Respondent also made the contention that none of its part-time employees had
seniority or received any of the other fringe benefits which the Union was seeking
for the drivers.
There was no budging from those positions . Though the Union later prepared
and presented a tentative seniority list, and though it later repeatedly sought to
persuade Respondent to give consideration to seniority by laying off newer employees
4 At one point , for example , the General Counsel temporarily injected a claim that
Respondent' s position in rejecting a union - shop demand constituted a refusal to bargain,
but he soon abandoned and withdrew that claim.
NORTHWESTERN PUBLISHING COMPANY 1079
in the event the proposed new delivery system made a layoff necessary , Respondent
refused either to make seniority a part of a contract or to consider it in making
layoffs.
We turn now to the aspects of the negotiations which led ultimately to the uni-
lateral actions of which the General Counsel complams.5 Those actions all took
place as a direct result of Respondent's decision to effect a change in its system of
distribution , and that decision in turn resulted directly from the nature of the Union's
proposals , particularly as concerned its wage and fringe benefits demands.
On wages, the Union's proposal provided for a flat weekly increase of $ 30 per driver
and for a similar increase in each driver's allowance for car expense . The Union
also sought pensions and health and welfare benefits which aggregated another $8
a week. Coupling those items with the Union's position that the drivers were
full-time employees and were to be considered as such, regardless of the number of
hours they worked , Respondent argued that the Union's proposal would cost it more
than $300,000 a year for distribution , that it could not afford such an "astronomical"
figure, and that the Union's demands were unrealistic , ridiculous , and completely out-
rageous. Respondent contended further that the Union 's proposal (which it assumed
initially was a typical Teamsters contract ) was wholly unsuited to Respondent's
operations.
When DePratt refuted the latter claim by informing Respondent that in drafting
the Union's proposal he had in fact followed a contract which another Teamsters
local had with a newspaper in nearby Terre Haute (Indiana), there was discussion
and dispute concerning the respects in which the operations of the two newspapers
were comparable and were different.
DePratt acknowledged that his wage proposal was unrealistic , but explained that
he had inserted an overall figure to insure that all drivers would receive an increase
whether they made more or less than others , that his approach was due to the fact
that the Union had no idea how some of the drivers were being paid, and he stated
that if Respondent would furnish a list of the drivers and the amounts of their wages,
the Union could revise and adjust its wage proposal . DePratt also suggested that
because the bundle drivers and tube drivers were actually doing different types of work,
it might be necessary to negotiate for the drivers on an individual basis so as to
arrive at a fair increase in wages, and that such an approach would augment the
necessity for having the wage information.
Burow contended initially that he was not aware of what the drivers were being
paid , because Respondent had kept no records of them as independent contract haul-
ers because they were not employees and were not on the payroll . On July 18,
however, Respondent furnished a statement of the total weekly compensation of all
drivers. On July 25, DePratt informed Respondent that while the information as to
bundle drivers was sufficient to enable the Union intelligently to formulate wage
proposals , that was not true as to the tube drivers because Respondent had lumped
in a single figure both the driver 's commissions ( 12 cents a week on each subscriber)
and his car allowance. DePratt requested that Respondent break down the informa-
tion into the two separate items, but Burow refused , stating that the Union had asked
for wages and that he had given it wages. Though Evans, who had prepared the
information , admitted that his records showed, and that he knew , the amounts which
Respondent paid each week under each item , the information has not yet been
furnished, nor has Respondent indicated willingness to furnish it. The only defense it
suggests is that the Union could have obtained the information from the tube drivers
themselves.
We turn now to the discussions which related directly to the proposed change in
Respondent's delivery system. Before the end of the June meetings Respondent had
informed the Union that it would probably be forced to set up a new system of
delivery because the Union's contract demands would make it impossible for it to
continue with the existing system. Prior to the July 3 meeting , Evans made, at
Burow's request , a survey of Respondent 's distribution methods and incorporated
his findings and tentative suggestions in a memorandum to Burow. The memorandum
was read in full by Burow at the July 3 meeting . In brief, it suggested the probability
of consolidation of some of the bundle drivers' routes , with a probable layoff of
some of the drivers, and that the tube routes were unprofitable and that some six or
seven , or possibly all of them, should be discontinued , and that Respondent should go
back to the less expensive mail delivery system.
In the ensuing discussions there was reference to the number of hours which the
drivers currently worked and which they might work under a new system, with the
5 Enmeshed here is the evidence concerning the refusal to furnish certain information
requested by the Union.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union contending that they should be considered full-time employees whether they
worked 1 hour a day or 7, and whether or not they were given 37Th hours of work
per week (which Respondent contended was a full workweek under its contracts
with the printing crafts ). Burow asserted that once the drivers ' contracts were termi-
nated and they were hired ( as employees ), the drivers would be only part-time
employees , though it was possible that under a consolidation of routes some of the
drivers might work a full workweek by being given other work assignments in the
circulation department.
Burow also mentioned the possibility that the district men (Harold Gorman, Russell
Thornton , Robert Funk, Donald Baumgart , and Basil Logsdon ) might be used to make
deliveries under a new system. DePratt voiced immediate and emphatic opposition
on the ground that the district men were in fact district managers and supervisors,8
that Evans had so testified at the representation hearing , that they were excluded from
the Union 's petition and from the appropriate unit , that they had riot voted or
attempted to vote, and that if Respondent were to use the district men to make
deliveries , it would violate the Board's decision Burow insisted that he had the
authority and the right to use them as drivers because they were in the circulation
department.
The Evans memorandum was not submitted as a specific proposal but to acquaint
the Union with the problems which Respondent faced in meeting the Union's demands
and to suggest a possible solution . Discussions were resumed of a probable new sys-
tem at the meeting on July 20.7 Burow testified that although DePratt objected to a
consolidation of routes in the manner which Respondent proposed and to the use
of district men as bundle drivers, DePratt remarked further that he could see that
Respondent would have to consolidate and maybe use fewer employees , though he
still maintained that the drivers were to be considered as full-time employees , whether
they worked 1 hour a day or 7 hours.
Further discussions on July 25 and during the August meetings with the mediator
brought about no change of positions . Prior contentions were repeated periodically,
with the positions of the parties becoming more and more emphatic . The Union stated
it would never agree to Respondent's use of the district men and would not bargain
for them as employees within the certified unit . Respondent insisted that it was
free, upon termination of the drivers ' contracts and the institution of its new system,
to employ whomever it chose and to use whomever it wished in driver delivery work.
Indeed, Burow testified that he told DePratt that "We were going to conduct our
business the way we wanted to on this "
On August 17, Burow outlined Respondent 's proposed new system , and announced
that it would be installed in some 2 or 3 weeks after the termination of the contracts
with the bundle drivers . In brief the plan (which was put into effect on September 4)
was, by consolidation , to reduce the bundle routes outside the city from l1 to 6,
and to divide the city area into 5 districts , with one of the district men delivering
in each for 5 days a week and with 5 " swing" drivers making deliveries on the
other 2 days .8 There was repetition of earlier positions and objections concerning
6I find on undisputed evidence that the district managers were supervisors prior to
September 4 Burow admitted that they were supervisors of the carriers in their particu-
lar district; Evans admitted that they "contracted" and discharged the carriers, and
there was undenied testimony also that two of them hired a number of bundle haulers
Though their status was somewhat more doubtful in the period subsequent to Septem-
ber 4, the district men continued to exercise the same supervision as before over the
carriers Evans was unable to suggest any difference in their responsibility over the
carriers save that they now receive collections by mail instead of through personal con-
tact, and he testified, in the present tense, that they "contract and discharge the news-
boys " Though the point is not crucial to the refusal-to-bargain issue, I conclude and
find that the district men still occupy the status of supervisors
I In the meantime Respondent had submitted Its own proposal on July 18 On July 18
and 20 there were discussions of its provisions, with the Union objecting generally to its
"emptiness" and to the fact that it contained nothing on wages of on fringe benefits
Those criticisms were as valid as Burow's criticism of the Union's original wage proposal
'There was some conflict in the testimony whether it was on the 17th or the 27th on
which Burow presented a list of the drivels whom Respondent proposed to retain Burow's
own testimony reflected some uncertainty whether the 17th was the correct date as lie
claimed, though lie agreed at one point that "No one was chosen until after we mailed
out the notice cancelling the contract [on August 21] " DePratt, Swift, and Frazee all
fixed the date at the 27th, which date I find on all the evidence to be the correct one.
NORTHWESTERN PUBLISHING COMPANY 1081
the use of the district men, concerning seniority, the claimed lack of employee
status until the drivers' contracts were terminated, and Respondent's claimed right
to choose whom it wished to make deliveries under the new system.
There followed a brief interlude of developments away from the bargaining table.
On August 20 the Union filed its charge 9 alleging a refusal to bargain since July 1.
On August 21, Respondent formally notified 10 of the bundle drivers (Frances
Arrasmith, James Frye, Flossie Frazee, Eugene Hurley, Bernice Pollitt, Don Reed,
Eulah Swift, Loretta Turner, Harold Youngblood, and Winifred Youngblood) that
their contracts would be terminated on September 3, and that on September 4 it
planned to change its method of distribution by hiring "several part-time employees
from among the haulers who have been performing delivery work." On August 22,
Respondent wrote the mediator informing him of its actions and intentions as above,
and concluded as follows:
We have requested that the Union bargain with us concerning these people
for whom we necessarily must establish wages and working conditions. As
you know, the Union has indicated no desire to meet again.
This is to ask your assistance in arranging with the teamsters to meet again
with us immediately so that we can negotiate on these matters.
When negotiations resumed on August 27, Burow presented a list of the employees
through whom Respondent was going to make deliveries. It contained the names
of six drivers and five swing drivers, with two of the latter also being listed as relay
route drivers. All but two of them were serving as bundle drivers at the time.
Burow stated that the six who were listed as drivers would receive $1.25 an hour
for the hours they worked and 6 cents a mile, and that the others would receive
$1.50 an hour and 10 cents a mile. Though the district men were not listed, Burow
stated they would also be used.
DePratt inquired about John Dyar, Jr., and Larry Black, who were listed as swing
drivers and whom he had not heard of before. Burow stated that they were circula-
tion employees 10 and that he was going to use them just as he was the district
managers DePratt inquired what wages the Company proposed to pay the district
men, and Burow replied that there was no point in discussing their wages as they
were on salary, but he inquired whether DePratt was proposing to bargain for
them. DePratt responded that he was not bargaining either for the district men
or for Black or Dyar, Junior, because they were not appropriately in the unit (see
footnote 3, supra), and that the Company could not properly use them to do the
work for driver employees who were entitled to it but who were being laid off.
There was also discussion of each of the drivers whom Respondent was retaining,
with the Union objecting that Respondent had ignored seniority. Specifically, it
pointed out that Ardel Thomason and Nancy Wakeland, who were on the retention
list, were two of the most junior employees, at the bottom of any seniority list,
but that Burow was terminating employees with from 5 to 20 years of service.
Burow refused again to heed the Union's urging that it apply seniority in retaining
drivers and that it refrain from using the district men and the complaint boys, stating
that those were the people he was going to use.
The same positions were adhered to in the final meeting on August 30 Burow
announced, however, that a further survey indicated that Respondent's first wage
proposal was insufficient, and that it was increasing the hourly rates of those
previously listed at $1.25 to $1.50 an hour, with a mileage increase from 6 to 7 cents
a mile, and was increasing those previously listed at $1.50 an hour to $1.75, with
a mileage increase from 10 to 12 cents.
In neither of the two final meetings did DePratt make any comment concerning
Respondent's wage proposals, but simply took down the proposals without comment
or objection.
9 No other explanation appearing from the record, this was presumably the action which
DePratt had in mind on August 17 when (according to Burow's testimony) he stated he
proposed to stop Respondent from using the district men from making deliveries
10 Black and Dyar, Junior, were termed "complaint boys" prior to September 4 Though
Burow testified he believed that they had helped the bundle drivers in making deliveries,
he admitted that was not a regular routine part of their duties and suggested that Evans
would be a more accurate source of information Evans testified that they alternated on
the switchboard and delivered shortages in the city as complaints were received , either
under his supervision or one of the district men, and that they had no connection at all
with the bundle drivers.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the Union's renewed insistence that Respondent give consideration to seniority,
Burow's final word was that he had selected the people he was going to use, but that
if he needed additional haulers, he would use those who had been discharged.
After the first day of operation under the new system, Respondent created an
additional route and employed Ruth Elder, another of the junior bundle drivers, to
drive it. The Union was not consulted. Some time later Respondent hired Larry
McMaster as a swing driver in place of Larry Black, without offering the position
to any of the discharged drivers and without consulting with the Union."
Burow testified that Evans made the selections for termination and retention in
consultation with him, that there was no consultation with the Union, that the
drivers within the original unit who were retained lived either in or near the ter-
ritory in which they delivered, and that they were selected for that reason and on
the basis of their capabilities for doing the work and the equipment which they had.
His further testimony that he informed the Union of the basis of the selection is
credited over DePratt's denials.
Of further relevance were the following facts: Six city drivers who were terminated
all resided in the city of Danville, the area covered by the district men and the
complaint boys. Respondent offered no evidence which bore upon the capabilities as
drivers of the complaint boys or the district men or the adequacy of their equipment,
and it suggested no basis on which it could have determined how any of those seven
persons (none of whom was engaged in driver delivery work) was somehow better
qualified in capability, experience, and equipment than the bundle drivers whom it
terminated and who had served it for from 5 to 20 years, without fault or criticism
so far as the evidence showed. Respondent never offered, either directly to the
terminated drivers or through the Union as their certified bargaining representative,
the delivery jobs which it assigned to the district managers and to the complaint boys.
Pursued specifically as to his failure to offer to the bundle drivers the jobs given to the
complaint boys, Evans' only explanation was, "Well, we just figured we would use
the two employees we had."
Additional facts which Respondent assigns in support of its position are the
following:
The Union never changed its position that the drivers should be treated as full-
time employees and that they were entitled to all the benefits which full-time employees
receive, nor did it propose any constructive plan by which Respondent could provide
them with full-time employment.
After Respondent furnished the wage information on July 18, the Union submitted
no modified wage proposal, and after Respondent submitted its wage offers on
August 27 and 30, DePratt, though indicating disgust, otherwise expressed neither
satisfaction nor dissatisfaction and made no counteroffer.
The Union never changed or altered its demands for fringe benefits, nor did it
change its demands for paid vacations or paid holidays.
The Union never suggested any alternative method of distribution. Though Burow
admitted that DePratt conceded that Respondent would have to consolidate and maybe
use fewer employees, he testified that DePratt continually objected to the method by
which Respondent proposed to consolidate the routes and select the drivers.
The negotiations were concluded on August 30 with Burow stating he would wait
until he heard further from DePratt. He has heard nothing.
2. Concluding findings
Preliminarily I conclude and find that the appropriate unit herein is as found
by the Regional Director (see section A, supra), and that since May 17, 1962, the
Union has been the duly certified bargaining representative of Respondent's employees
in said unit.
Turning to the Respondent's conduct of which the General Counsel complains, we
begin with the refusal to furnish wage information, which stands on a different footing
from the remainder of the conduct. As found in the preceding section, the Union,
conceding the validity of Respondent's view that its wage proposal was unrealistic
and recognizing that the situation among the drivers was such that rates might have
to be negotiated on an individual basis, requested that Respondent furnish it with
wage data which would enable it more intelligently to negotiate and to formulate
11 What McMaster's status was prior to September 4 was left uncertain by the evidence.
Though Evans testified that McMaster was at some time in bundle driving , either as an
employee or contractor, his name did not appear on the agreed eligibility list, nor was he
among bundle drivers who were either terminated or retained under the new system.
NORTHWESTERN PUBLISHING COMPANY 1083
wage proposals. When the information as furnished on the tube drivers proved to be
inadequate , Respondent refused to break down the figures as requested , though Evans
admitted that his records contained the information.
The only defense which Respondent suggests is that the Union could have obtained
the information from the drivers themselves , who knew how they were being com-
pensated . That defense is one which has long been rejected . It was raised both in
Aluminum Ore Company, 39 NLRB 1286, enfd. 131 F. 2d 485 (C.A. 7); and J. H.
Allison & Company, 70 NLRB 377 enfd. 165 F. 2d 766 (C.A. 6), cert. denied 335
U.S. 814, and was rejected in both . The language of the Allison case is particularily
applicable here (70 NLRB supra at 385) :
Nor is it any answer for the respondent to urge, as it does here, that the
Union might have obtained this information from its own members Since it is
a proper subject for collective bargaining, it is the responsibility of the re-
spondent to furnish this information and it cannot urge that the Union seek some
other recourse which may under the circumstances prove impossible , or at least
inconvenient and embarrassing.
See also The Electric Auto-Lite Company , 89 NLRB 1192, 1198-1199 ; Hekman
Furniture Company, 101 NLRB 631, 640, enfd. 207 F. 2d 561 (C.A. 6); and
Dixie Corporation , 105 NLRB 390, 396.
There was not, nor could there be, any claim that the compiling of the data would
be burdensome or time consuming . There were only 22 tube drivers involved, and
Evans admitted that the information was readily available in his records.
I therefore conclude and find that by refusing to furnish the information as re-
quested, Respondent refused to bargain within the meaning of Section 8(a)(5) of
the Act.
As is apparent from the summary of the negotiations above, Respondent 's remain-
ing conduct was rooted in, and sprung from, its view that the Regional Director erred
in holding that its drivers were employees rather than independent contractors.
Respondent could, of course , have easily obtained court review of that decision
by flatly refusing Ito bargain and by thus precipitating the usual formal or "technical"
refusal-to-bargain case . It chose instead to enter upon bargaining negotiations.
Though purporting at the outset to recognize its obligation to bargain concerning
the drivers as employees as found by the Regional Director, Respondent's real position,
thereafter consistently maintained , was that the Regional Director was in error, that
the status of the drivers would continue to be that of independent contractors until
Respondent should act to terminate their contracts or lease agreements , that the
drivers would not become employees until such termination and until they were hired
by Respondent , and that until so hired the principle of seniority and other normal
concomitants of an employment relationship could have no application So insisting,
Respondent further precluded bargaining about the drivers as employees by with-
holding the termination of any of the driver contracts until after it prefected uni-
laterally its new system of distribution and. selected unilaterally the drivers who would
be terminated and those whom it would "employ " (retain).12
By denying the employee status of the drivers Respondent was also enabled to
support more colorably its claims not only that it was free to choose among the
drivers to be terminated and to be retained, but that it was likewise free to replace
discharged drivers with other employees and supervisors who were neither within
the unit nor who had formerly done driver delivery work. Thus, Respondent's
position amounted in fact to denying that it had any "employees" within the unit
and to maintaining that there would be none until it should get around to hiring
some-those whom it would choose. Its basic position was therefore plainly one
of rejection , not of acceptance , of the Regional Director's ruling , and it effectually
foreclosed bargaining in any real sense by denying the fact which was basic to the
Union 's standing in the negotiations as the statutory bargaining representative of
the drivers.
Any foundation for good-faith bargaining would necessarily presuppose acceptance
of the drivers ' employee status , a status which Respondent contended throughout
the negotiations it was able to withhold at will. Respondent could not, in good faith,
enter upon negotiations pretending acquiescence in the Regional Director's ruling
12 Evans admitted that Respondent did not treat the drivers as employees at any time
during the negotiations and that , so far as tube drivers are concerned, Respondent has
continued their contracts in effect to date without bothering to go through the motions
of employing them, as it did with some of the bundle drivers.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while it -maintained to the end bargaining positions which were rooted in denial
that the drivers were its employees. To purport to bargain on such a basis was not
to bargain at all.13
On the disputed point of seniority, it is to be noted that Respondent could properly
urge, as it did, objections which were based on such considerations as the geographical
areas assigned to the driver and the necessity or desirability that they live in or near
the areas which they served. It was plain, however, that Respondent's rejection of
seniority was also based in substantial and indivisible part on the ground that the
drivers were not employees and that seniority would not begin until such time as
Respondent should terminate their contracts and hire them as employees (Vide
Swift's undenied testimony that when Frazee asked Burow whether her 7 years of
work meant nothing, Burow replied, "[N]o, not until you are hired.")
We turn now to the main defense which Respondent asserts (other than the
alleged error in the Regional Director's ruling). Tracking the language of Jays
Foods, Inc. v. N.L.R.B., 292 F. 2d 317 (C.A. 7), Respondent argues broadly that it
had the right to consider objectively and independently the economic impact of the
unionization of the drivers and of the Union's demands and accordingly to institute
a change in its distribution system motivated by financial and economic reasons
resulting from the Union's demands. Respondent also cites as supporting its posi-
tion such cases as N.L.R.B. v. Lassing, et al., d/b/a Consumers Gasoline Stations,
284 F. 2d 781 (C.A. 6); N.L.R.B. v. R. C. Mahon Company, 269 F. 2d 44 (C.A.
6); N.L.R.B. v. Houston Chronicle Publishing Company, 211 F. 2d 848 (C.A. 5);
and Fibreboard Paper Products Corporation, 130 NLRB 1558.
Initially, it is to be noted that the Board overruled the last case in Town & Country
Manufacturing Company, Inc., 136 NLRB 1022, and subsequently reversed it by
its supplemental decision, on reconsideration, at 138 NLRB 550. It is to be noted
further that the Board has expressed its disagreement with Jays Foods, pointing
out in its brief on review and enforcement proceedings in Town & Country, supra,
that the court in Jays Foods had relied on the Board's rationale in the original
Fibreboard decision, which the Board had overruled and reversed.
The Board's decision in Town & Country and its supplemental decision in Fibre-
board plainly require rejection of Respondent's broad contention that it was free
independently and unilaterally to institute the changes in the delivery system which
it effected here. Aside from that, and assuming arguendo Respondent's right to
effect independently consolidations and changes to meet the impact reasonably to
be expected from the Union's demands, Respondent could not foreclose the Union
from bargaining concerning such matters as selections for retention, for discharge,
and for replacement by denying the employee status of the drivers for whom the
Union was the statutory bargaining representative. Indeed, it has long been held
that an employer is required to bargain with such a representative about who is
to be affected by a reduction in force of employees for economic reasons of any
sort, and about the distribution of the work among the employees
The foregoing findings effectually dispose also of Respondent's contention that
it was the Union's tactics which caused the failure to bargain with which the General
Counsel charges Respondent. The Union, readily conceding that its wage proposal
was unrealistic, was blocked from submitting modified proposals by Respondent's
refusal to furnish essential information. It was plainly justified in opposing Re-
spondent's use of the district men and the complaint boys, and though not agreeing
to the manner by which Respondent proposed to change its system, it conceded
that some reductions, both in routes and drivers, seemed justified. Its attempts to
bargain concerning the selection of the drivers to be retained and discharged and
the use of replacements were foreclosed by Respondent's refusal to acknowledge
the employee status of the drivers and its insistence on complete unilateral control
over such selections. The Union's position on seniority and its other economic
demands plainly constituted mandatory subjects of bargaining.
I conclude and find on the record as a whole that Respondent's unilateral actions,
over the Union's protests, in discharging 10 of its bundle drivers, in retaining or
rehiring those whom it selected, and in replacing the discharged drivers by the
district men and the complaint boys who were not within the certification unit, con-
stituted a refusal to bargain within the meaning of Section 8(a)(5). I conclude
and find further from the totality of Respondent's conduct, including those unilateral
actions, that Respondent did not bargain in good faith on and after July 3, 1962.
is Lack of good faith was further evidence after the negotiations ended by Respondent's
unilateral hiring of another employee outside the unit to replace Larry Black instead of
offering the job to one of the discharged drivers, as promised by Burow at the final negotia-
tion meeting.
NORTHWESTERN PUBLISHING COMPANY 1085
E. Discrimination
All evidence which is relevant to the issue of discrimination has been summarized
under section D, 1, supra, except for the question of knowledge of union membership
or adherence.
Respondent knew that at least 7 of the 10 discharged drivers were union supporters.
Swift, Frazee, and Hurley were members of the Union's negotiating committee, and
Respondent knew of the union sentiments of Loretta Turner, Bernice Pollitt,
Winifred Youngblood, and Harold Youngblood through their presence with DePratt
during Evans ' visit to the tavern on May 7. See section B, supra.
Respondent contends that the General Counsel offered no evidence of antiunion
action, animus, or background, and points to its long history of collective bargaining
with ITU and the Pressmen 's Union. It argues that as it was fully justified in insti-
tuting a change in its delivery system , the making of the change did not constitute
discrimination against the drivers who were terminated and did not discourage
membership in the Union.
In resolving the present issue, we start with the finding that Respondent was justified
in considering and proposing some consolidation of routes and other changes in
its system to meet the impact reasonably to be anticipated from the Union's demands.
And though it has been found that Respondent failed to bargain concerning the
manner by which it effected the changes , particularly in its selections for termina-
tion, for retention, and for replacement , that does not establish , of course, that
Respondent was discriminatorily motivated in making the selections which it did.
It is also to be noted that, though there was no direct evidence of discriminatory
motivation , that fact is neither conclusive nor unusual , for direct proof of such
motivation is rarely obtainable . N.L.R.B . v. Southland Manufacturing Company,
201 F. 2d 244, 245-246 (C.A. 4), and cases there cited. The question is whether
the General Counsel established by a preponderance of the evidence on the record
as a whole that Respondent 's real reason for selecting for discharge those whom
it did was their union activities and adherence . For the following reasons, I con-
clude and find that he did.
While denying employee status to the drivers, Respondent set about terminating
drivers of long experience while retaining others of little experience and by employ-
ing other persons who were without experience and were not within the unit of cer-
tification . The basis of its alleged selection ( i.e., capability , equipment , and residence
in the area) did not stand up under scrutiny. The geographical claim was exposed
by the fact that six of the discharged drivers resided in the city of Danville, the
area which was covered by the district men and the complaint boys Respondent
offered no evidence which bore upon the capabilities as drivers of the complaint
boys or of the district men or the adequacy of their equipment, and it suggested no
basis on which it could have determined how any of those persons was somehow
better qualified in capability, experience, or equipment than the drivers whom it
terminated and who had served it from 5 to 20 years, without fault or criticism
Thus, under all the circumstances disclosed by the record, the union sentiments and
adherence of Swift, Frazee, Hurley, Turner, Pollitt, and the Youngbloods furnishes
the only evidence which provides a motive for Respondent's selection and the only
plausible and substantial explanation Cf. The Cross Company, 119 NLRB 699.
Indeed, Evans' lame explanation of the hiring of the complaint boys without offering
the jobs to bundle drivers, and Respondent's failure to honor Burrow's commitment
to hire from among the discharged drivers as other drivers were needed, completed
the exposure of Respondent's claims as counterfeit and demonstrated that its basic
motivation was in fact to rid itself of union adherents
That the layoff did not reach all union adherents or that it may have included some
who were not for the Union does not avail Respondent as a defense. N L R B. v
W. C. Nabors Company, 196 F. 2d 272, 276 (C.A. 5), cert denied 344 U.S 865
Respondent's actions , being unlawfully motivated. constituted discrimination to dis-
courage membership in the Union, and consequently all of the dischargees were
discriminated against within the meaning of the Act Gus Canales, Inc, 131
NLRB 571, 585.
I conclude and find on the entire evidence that by terminating the 10 bundle drivers
on September 3 and by thereafter failing and refusing to reinstate them, Respondent
engaged in discrimination within the meaning of Section 8(a) (3) of the Act
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, T make the following-
CONCLUSIONS OF LAW
1. All out-of-town and city bundle delivery drivers, including bundle drivers who
operate from substations and all tube or mounted motor distributors employed at
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's Danville, Illinois, plant, but excluding all other employees and su-
pervisors as defined in the Act, constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
2. At all times since May 17, 1962, the Union has been the exclusive representative
of all the employees in said unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions of employment.
3. By refusing to bargain collectively with the Union in the respects found in sec-
tion D, 2, supra, Respondent has engaged in unfair labor practices within the mean-
ing of Section 8 (a) (5) and (1) of the Act.
4. By discharging Frances Arrasmith, James Frye, Flossie Frazee, Eugene Hurley,
Bernice Pollitt, Don Reed, Eulah Swift, Loretta Turner, Harold Youngblood, and
Winifred Youngblood on September 3, 1962, and by thereater failing and refusing
to reinstate them, Respondent discriminated in regard to hire and tenure of em-
ployment to discourage membership in the Union, and thereby engaged in unfair
labor practices proscribed by Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent did not engage in surveillance as alleged in the complaint.
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases, as provided in the
Recommended Order below, which I find necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the policies of the Act. For
reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases
there cited, I shall recommend a broad cease-and-desist order.
Effectuation of the policies of the Act in the situation found herein plainly re-
quires, both for an effective order to bargain and for reinstatement of the discrimi-
natorily discharged drivers, that Respondent restore the status quo ante as it existed
prior to September 3, that it restore its discharged drivers to the positions which
they held before or to substantially equivalent positions, and that it resume bar-
gaining negotiations with the Union in the situation as so re-created.14 Only in
such manner can the situation created by Respondent's labor practices be fully
redressed, for it would be futile to order bargaining if Respondent's unlawful
unilateral actions are permitted to stand. Fibreboard Paper Products Corp., (Sup-
plemental Decision), 138 NLRB 550; Town & Country Manufacturing Company,
136 NLRB 1022.
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Northwestern Publishing Company, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the exclusive representative
of all its employees in the certified unit.
(b) Refusing to bargain with the Union by deciding unilaterally which drivers
are to be discharged and which retained or rehired or by unilaterally discharging
drivers and unilaterally replacing them with persons whom it alone selects, includ-
ing persons not in the certified unit.
(c) Refusing to bargain with the Union by failing and refusing to furnish to it,
upon request, wage data for the drivers within the certified unit.
(d) Discouraging membership in the Union or in any other labor organization of
its employees by discharging or failing to reinstate them, or in any other manner
discriminating in regard to their hire or tenure of employment or any term or con-
dition of employment.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join or assist the Union,
or any other labor organization, to bargain collectively through representatives of
their own choosing or to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
14 Such an order will, of course, leave Respondent free to bargain anew with the Union
both on consolidation of routes, on reduction In the number of drivers, and on any other
change In its distribution system which may be necessary or desirable.
NORTHWESTERN PUBLISHING COMPANY 1087
such activities except to the extent that such right may be affected by an agreement
authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action:
(a) Bargain collectively upon request with the Union as the exclusive representa-
tive of its employees in the appropriate unit herein found.
(b) Bargain collectively by furnishing to the Union, upon request , information
as to wages and other allowances to drivers in order to enable the Union properly
to discharge its functions as the collective-bargaining representative of said employees.
(c) Reinstitute its delivery system as it existed prior to September 4, 1962, and
offer to Frances Arrasmith, James Frye, Flossie Frazee , Eugene Hurley, Bernice
Pollitt, Don Reed, Eulah Swift, Loretta Turner, Harold Youngblood, and Winifred
Youngblood immediate and full reinstatement to their former or substantially equiv-
alent positions , without prejudice to their seniority or other rights and privileges,
and make each of them whole for any loss of pay he may have suffered by payment
to him of a sum of money equal to that which he normally would have earned from
September 3, 1962, to the date of the offer of reinstatement less his net earnings
during said period (Crossett Lumber Company, Inc., 8 NLRB 440), said backpay
to be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Co., 90 NLRB 289, with interest thereon at the rate of 6 percent
per annum (Isis Plumbing & Heating Company, 130 NLRB 716).
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under these recommendations.
(e) Post at its plant and offices copies of the attached notice marked "Appendix
B." 15 Copies of said notice, to be furnished by the Regional Director for the Thir-
teenth Region , shall, after being signed by Respondent's representative , be posted
by Respondent immediately upon receipt thereof and maintained by it for 60 con-
secutive days thereafter in conspicuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, what steps Re-
spondent has taken to comply herewith.16
"In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "A Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
161u the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
EXCERPT FROM REGIONAL DIRECTOR 'S DECISION
The Employer contends that all individuals involved herein are independent con-
tractors and not employees . In these situations , the Board has set forth the policy
that where the person for whom the services are performed retains the right to
control the manner and means by which the result is to be accomplished , the relation-
ship is one of employment , but on the other hand, where control is reserved
only as to the result sought, the relationship is that of independent contractor.
(Pure Seal Dairy Company, 135 NLRB 76.)
So far as both the tube haulers and bundle haulers are concerned , they select,
operate, and maintain , without company control, compensation , or identification,
the vehicles used in carrying out their functions . The Company does not pay social
security contributions, unemployment contributions , nor does it withhold moneys
for income-tax purposes . Further, the contract states that the haulers are independ-
ent contractors . Each hauler may hire and determine the amount of pay for helpers
or substitutes (though the Company would have the hauler report the names and
addresses of such substitute ), without any regulation by the Company.
The bundle carriers are paid a fixed sum per week for delivering a stated number
of papers , and if the number of papers varies substantially , 'a new rate must be
negotiated . Four out of nineteen bundle haulers are paid a bonus because of the
difficult route on which they work. Some of them haul material for other employers.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The bundle haulers receive, at the Employer's premises, a bundle of papers, in bulk,
which they break down in appropriate lots for the newsboys to whom they deliver,
the number for each being determined by the Employer. The Company determines
the time of pickup of the papers, and the order in which the haulers line up to
receive the bundles. The Company receives and relays complaints, by the newsboys,
of improper or late deliveries. One bundle hauler testified, without contrary testi-
mony, that when she requested permission to change the order of certain deliveries
on her route, such permission was denied, because the newsboys would question
the comparative time of delivery of papers. The Employer restricts the time at
which Sunday supplements are delivered. Bundle haulers have been reprimanded
for making late pickups.
As to the tube drivers (or haulers), who, snice October of 1961, make deliveries
of papers to customers previously served by mail, they receive a flat fee based on a
predesignated route plus the difference between the cost of the paper to them and
the price charged the subscriber, both being fixed by the Employer. No returns
are permitted. The area served and the original customers (and later additions)
are established by the Employer, though the tube drivers later may make their own
solicitations for new subscribers within the fixed area. They are responsible for
collections and stand the losses of delinquent subscribers. They erect tubes for new
customers and collect weekly insurance premiums from subscribers covered by
policies sold through the Employer. They are responsible to the circulation manager.
From the foregoing, and upon the entire record, the undersigned is of the opinion
that the Employer herein has retained control over more than "only the result to
be accomplished." Clearly, each hauler is restricted as to the area he serves, the
bundles haulers are required to report at a specified time and are served, in loading,
in a fixed order, and break the bundles down in accordance with company-determined
directions. The tube haulers cannot encroach upon a territory (fixed by the Com-
pany) of another tube hauler, and the Company may add to the roster of customers.
Other factors, such as the order and time of delivery, are the concern of the
Employer, who, at the very least, discusses and suggests solutions to problems arising
out of the order and time of delivery. The drivers are left little room to make
decisions which govern his profit and loss. Accordingly, I find them to be employees,
and the unit as set out above, to be appropriate. (Keystone Universal Carpet Co.,
130 NLRB 4, 9; Buffalo Courier-Express, Inc., 129 NLRB 932; Lindsay Newspapers,
Inc., 130 NLRB 680; Servette, Inc., 133 NLRB 132.)
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT refuse to bargain collectively with Chauffeurs, Teamsters and
Helpers, Local No. 26, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America as the exclusive
representative of all our employees in the certified unit.
WE WILL NOT discourage membership in Chauffeurs, Teamsters and Helpers,
Local No. 26, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any her labor or-
ganization of our employees, by discharging or failing to reinstate or in any
other manner discriminating in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist Chauffeurs, Teamsters and Helpers, Local No. 26, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to bargain collectively
through representatives of their own choosing, or to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities except to the extent that
such right may be affected by an agreement authorized by Section 8(a)(3) of
the Act.
WE WILL bargain collectively upon request with the said Union as the ex-
clusive representative of our employees in the appropriate unit, and will furnish
to said Union, upon request, information as to wages and other allowances to
drivers in order to enable the Union properly to discharge its functions as the
collective-bargaining representative of our employees in said unit.
LOCAL 3, INT'L BROTHERHOOD OF ELECTRICAL WORKERS 1089
The bargaining unit is:
All out-of-town and city bundle-delivery drivers, including bundle drivers
who operate from substations and all tube or mounted motor distributors
employed at our Danville , Illinois, plant, but excluding all other employees
and supervisors as defined in the Act.
WE WILL reinstitute our delivery system as it existed prior to September 4,
1962, and will offer to Frances Arrasmith, James Frye, Flossie Frazee, Eugene
Hurley, Bernice Pollitt, Don Reed, Eulah Swift, Loretta Turner, Harold Young-
blood, and Winifred Youngblood immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make each of them whole in the manner
provided in the Trial Examiner's report for any loss of pay he may have suf-
fered as a result of our discrimination against him.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of the above-named or any other labor organization.
NORTHWESTERN PUBLISHING COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative (Title)
NOTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago 3, Illinois, Telephone No. Central 6-9660,
if they have any questions concerning this notice or compliance with its provisions.
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO and New Power Wire and Electric Corp . and P & L Serv-
ices, Inc. Cases Nos. O-CC-703 and 2-CB-3417. October 14,1963
DECISION AND ORDER
On October 10, 1962, Trial Examiner Sidney Sherman issued his
Intermediate Report in the above-entitled proceedings finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermediate
Report. Thereafter, the General Counsel and the Respondent filed
exceptions and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Intermediate Report, exceptions,
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
The Company, an electrical contractor, is engaged in the business
of electrical rewiring of residential apartment buildings throughout
144 NLRB No. 100.