P. G. Publishing Co.

National Labor Relations Board - Board Decisions

Sep 13, 1955

114 N.L.R.B. 60 (N.L.R.B. 1955)

60 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
P." G.- Publishing Company and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Newspaper, Newsprint, Magazine & Film Delivery Drivers,
Helpers & Handlers of Allegheny County, Local 211, AFL,
Petitioner . Case No. 6-RC-1544. September 13, 1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Emil E. Narick, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The petitioning labor organization claims to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks 'a unit of distributors of the Pittsburgh Post-
Gazette newspaper who distribute that paper exclusively in the so-
called "ABC_ city zone limits." The Employer contends that these
distributors are independent contractors and not employees, hence not
entitled to collective bargaining under the. Act. The group sought by
the Petitioner consists of 29 distributors. It does not include 20 dis-
tributors in the suburban and country area outside the "ABC city
zone limits"-a geographical designation of circulation recognized
by newspapers, magazine dealers, and advertisers in the Pittsburgh
area . It also does not include eight newspaper dealers within the zone
who handle competing newspapers and are known as "combination
dealers."
In support of its position that distributors are independent con-
tractors, the Employer emphasizes the following testimony : Written
contracts, terminable at will by it, provide for the sale of newspapers
to each distributor. These contracts may be terminated by the dis-
tributor after notice as specified in the contract. If the territory is
allotted to 'the distributor by the Employer, the contract provides that
the list of subscribers is not the property. of the distributor; however,
a distributor may buy a territory from another distributor, in which
case he does "own" the subscription list. Papers are sold to distrib-,
utors at a fixed wholesale price for distribution at a fixed retail price,
the difference representing the profit to the distributor for his efforts
114 NLRB No. 14.
P. G. PUBLISHING COMPANY 61
after deducting carrier-boy remuneration. Additional sums are paid
by the Employer to some- distributors to cover ,a variable distribution
expense or rate adjustment. These payments vary from $30 to $80
a week and cover car expense and extra compensation dependent upon
the characteristics of the distribution territory involved. The dis-
tributor selects his own carrier boys and stands the loss if they fail
to collect for papers delivered. The Employer requires from each
distributor a cash deposit equivalent to approximately 4 weeks' sup-
ply of papers, which deposit draws interest and is returned if the dis-
tribution agreement is terminated. Distributors pay the Employer on
a weekly or monthly basis for the papers purchased; they receive credit
for unsold papers. Trucks owned by the Employer deliver the papers
to distributors at places designated by them, and they in turn see that
their carrier boys get the papers. Except in emergencies, distributors
arrange and pay for their own substitutes during absence, including
vacation and sickness. Distributors are not subject to benefits under
social security, workmen's compensation or unemployment insurance,
nor do they receive group life or hospital insurance benefits provided
by the Employer for employees. Many distributors have additional
employment.
The Petitioner, in support of its position that distributors are em-
ployees, emphasizes the similarities in duties and supervision of dis-
tributors with those of branch "managers" and district "managers."
These "managers" are admittedly employees and represented for bar-
gaining by Pittsburgh Newspaper Alliance, A. F. L. Branch mana-
gers and district managers distribute papers within the city zone, the
former on the day shift and the latter on the night shift, under the
supervision of the city circulation manager. They are paid a salary,
auto expense, and incentive pay, and admittedly have the usual em-
ployee benefits which the distributors do not have. They collect from
the carrier boys, just as distributors do, and are bonded. The Peti-
tioner stresses evidence that the city circulation manager sends direc-
tives to distributors as well as to managers, and adds papers to their
routes without consulting them. It appears that distributors also call
in several times daily for subscriber complaints, report by phone to
the main office when they are finished each day in the territory, and
that many may call in when starting each day as managers are required
to do. Distributors also collect through the carrier boys from sub-
scribers for insurance policies provided by the Employer as a promo-
tional scheme.
The Petitioner introduced numerous exhibits, including a list of
"Circulation Department Employees" [emphasis supplied] prepared
by the Employer as a telephone list for convenience aid including dis-
tributors among those listed, various joint memoranda to distribu-
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tors and managers concerning distribution problems, as well as memo-
randa to individual distributors from the city circulation manager in
the nature of directives on handling complaints and collections, start-
ing subscriptions, how and when to make delivery, and including re-
quests for reports concerning carrier boys.
The Petitioner also contends that distributors are required to attend
sales meetings. It argues that the profit margin and expense allow-
ances of distributors is calculated to insure a reasonable return for the
work involved in a particular territory, and closely parallels the salary,
car expense, and incentive pay to managers. The Employer admits
that the "work" is "comparable," but contends that there is a funda-
mental difference in the relationships, emphasizing the overtime pay
that managers are entitled to, the fact that their bond is paid for by
the Employer, the fact that managers are not held financially respon-
sible if a carrier fails to collect, and their eligibility for customary
employee benefits, as well as the tax withholding by the Employer in
their behalf. The Employer also stresses its testimony that distribu-
tors are not required to attend promotional meetings, nor to call in
when they start delivery on their route each day, and that papers are
added by it to a , distributor's route only on holidays and credit is
always given for unsold papers. In general, the Employer contends
that it does not control the method of distribution employed by dis-
tributors, even though it necessarily makes suggestions concerning the
methods used.
- It is our considered opinion that the Board's decision and rationale
in Carter Publications, Inc., 100 NLRB 599, is determinative here.
We there found that the employer's lack of control over the "dealers"'
activities coupled with the numerous entrepreneurial aspects of the
relationship demonstrated that the "dealers" were independent con-
tractors. Except that the publishing company in that case had only
a verbal agreement with its dealers and required them to pickup papers
at its city dock, the incidents of dealerships there outlined are almost
identical to those of the distributorships here involved. We note also
the reference in the Carter case to the fact that there were employees
paid a salary who had duties similar to those of the dealers, just as in
this case there are managers paid a salary but with duties similar to
distributors. Nor do we see any substantial distinction between the
distributors here involved and the "city dealers" whom we found to
be independent contractors in The Times Herald Printing Company,
94 NLRB 1785, 1787. Accordingly, we find that the distributors here
concerned are independent contractors, and shall dismiss the petition.
. [The Board dismissed the petition.]