Plainfield Courier-News Co.

National Labor Relations Board - Board Decisions

Jul 25, 1951

95 N.L.R.B. 532 (N.L.R.B. 1951)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
castings principally for railroad cars. In addition thereto, the Em-
ployer is about to begin the production of armor plate in the South
Plant which it began to operate for the Federal Government on
January 1, 1951.$ Both the North Plant and the South Plant are
conducted as a single integrated enterprise.9
The IBEW's contention that the electricians at the Employer's
plant constitute an appropriate unit is based on craft considerations.
We find it unnecessary to determine whether the employees whom the
IBEW seeks to represent constitute a recognized craft group, because
the record clearly indicates that the Employer's operations place it
within the basic steel industry, where the Board has declined to sever
craft employees from an industrial unit.,,, We shall, therefore, order
that the petition of the IBEW be dismissed and shall find appropriate
the plant-wide unit sought by the Steelworkers.
We find that all production and maintenance employees at the
Employer's St. Louis, Missouri, plant, including lead men," but ex-
cluding bricklayers, their helpers and apprentices, office and clerical
employees, guards, professional employees, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
Order
IT IS HEREBY ORDERED that the petition filed in Case No. 14-RC-1361
be, and it hereby is, dismissed.
[Text of Direction of Election omitted from publication in this
volume.]
8 The record discloses that the South Plant was previously operated by the Employer for
the Federal Government from August 1943 to August 1945 and from October 1948 to
August 1949.
P The term , Employer 's plant , is used throughout to indicate both the North Plant and the
South Plant.
10 National Tube Company, 76 NLRB 1199 ; Baldwin Locomotive Works, 78 NLRB 803
11 Lead men are included in accordance with the stipulation of the parties.
PLAINFIELD COURIER-NEWS CO. a'nd ELIZABETH NEWSPAPER GUILD,
AFFILIATED WITH AMERICAN NEWSPAPER GUILD, CIO, PETITIONER,
Case No. 2-RC-2911. July 25, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Jerome A. Reiner, hearing
95 NLRB No. 65.
PLAINFIELD COURIER-NEWS CO . 533
officer. 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 labor organization involved claims to represent certain em-
ployees of the Employer.
3. The question concerning representation :
Petitioner seeks to represent eight full-time correspondents,' who
are engaged in gathering, reporting, and presenting news from desig-
nated suburban territories for the Employer's daily newspaper. The.
Employer contends that the petition should be dismissed on the
ground that these correspondents are independent contractors and not,
employees within the meaning of the Act; and furthermore that there
is no difference between the so-called full-time and part-time or
"stringer" correspondents whom the Petitioner does not seek to
represent.
The Employer publishes a daily newspaper, part of the Gannett
newspaper chain, in the city of Plainfield, New Jersey. It employs
a regular staff of editors and reporters who report to the newspaper
office every day at definite hours, work a 40-hour week, and are hourly
paid, with higher rates for overtime. These staff reporters generally
do their work at their desks in the daytime, from 7 or 8 a. m. to 4: Po
or 5 p. m. under the supervision of the city editor. For more than 1.6
years, the Petitioner has been the collective bargaining agent for thccrt
editorial staff reporters. In addition to his regular staff of reporters,
the Employer utilizes the services of some 35 persons, referred to n.u
space or suburban correspondents,' because they are paid on the basic
of copy published, and who generally supply news from suburban or
outlying districts. Of these, the Petitioner seeks to represent only
8 who are full-time suburban correspondents. The remaining 27 are
part-time correspondents to whom Petitioner refers in the language of
the trade as "stringers" and whom it does not seek to represent.'
The full-time suburban correspondent is usually accepted after an
interview with the managing or city editor who inquires into his
background, education, and experience. He is advised of the geo-
1 These are Carter, Coulbourn, Hegeman, Lawrence , Mahoney, McFadden , Reynolds,
Ungerleider , or individuals who have been hired to replace them.
3 On November 1, 1950, the Petitioner and the Employer executed their latest contract
from which , as was customary , all space correspondents including those who are the subject
of this petition were excluded . During the hearing, the Employer indicated, that there
might be a question of a contract bar. However , as the petition was filed before the con-
tract was executed and the space correspondents , Including the persons subject of this
petition , were specifically excluded from the contract, there is no merit to the contention of
a possible contract bar issue.
3 See footnote 14, infra.
534 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
graphical territory that is available for him to cover, the kind of
news the publication requires, and the style in which copy should be
presented. He is then given a schedule of events which are covered
as a routine matter, such as police courts, other local courts, school
board and health board meetings, political meetings of all kinds,
social, political, or literary clubs, news of churches, hospitals, under-
takers, fires, etc. He is given a list of names and telephone numbers
to use as contacts and a style book, containing rules of spelling, gram-
mar, punctuation, special newspaper style of writing, and a resume
of the law of libel for the correspondent's guidance. If "spot" news
develops in a given correspondent's territory, the night or suburban
editor will usually give the correspondent the first opportunity to
cover it, or he may assign a staff reporter to do it. The correspondent
must meet deadlines or risk the rejection of the story with a conse-
quent reduction in earnings. As a group, the correspondents are now
paid twice a month at the rate of 15 cents per'inch for copy published,
a rate which, apart from any bonus paid at the discretion of the
Employer, forms the basis of the compensation relied upon by these
correspondents as a major source of their income 4 There is no writ-
ten employment or other agreement under which the Employer's right
to discharge is limited for a definite period of time.5
. Although, other than indicated above, the correspondent is not spec
cifically told how to get his news, the Employer requires that news or
stories submitted to it by the correspondents must not have been pre-
viously submitted to other newspapers. The Employer concedes, as
a further limitation, that the editor in charge is the sole judge of what
kind and how much of a given story will be published. In practice,
correspondents have submitted copy to the editor in charge, who edited
it as he saw fit and either prepared copy for the composing room or
returned it to the correspondent with his suggestions. When he came
to the office, the correspondent would find suggestions, leads, tips, and
4 Of the eight correspondents involved, one, McFadden, receives a substantial part of his
income from other sources. McFadden's income from this newspaper for. the past 3 years
was about $2,200 a year. He stated that this constituted 40 percent of his total income,
the remaining 60 percent being derived from various free lance work which amounts to about
$900 a year and from a regular job as editor of a weekly newspaper, where he works during
the day, 5 days a week. The editor stated that he knew McFadden had this job and that
it was convenient for him to gather ne'6s while working there for the Courier-News.
McFadden came to the Courier-News regularly every night to type up his work.
Correspondent Lawrence stated that he helps out in the office of another newspaper a
:number of hours amounting to about 1 day's work a week. Another testified that he has
done publicity work for the Republican National Committee, which is not a regular assign-
ment. There is no evidence that the others receive any income or do any work for any
-other employer, and several correspondents testified that their territories require full time
of 40 hours or more a week in order to do the job adequately. These correspondents have
-worked for this newspaper from 2 to 10 years.
5 The Employer stated at the hearing that no one has the right to discharge a correspond-
aent, but conceded that the editor may refuse to accept copy from a given correspondent at
any time and that the effect of such action would be the same as a discharge. The record
shows that when two of the suburban correspondents involved herein decided to leave the
newspaper, they sent in their "resignations" effective as of a definite date.
PLAINFIELD COURIER-NEWS CO. 535
follow-ups placed in a special bin by the editor to assist him in develop-
ing certain news of particular interest in his territory. In addition
to working on news in his own territory, the correspondent would also
be directed to do "re-write" work of stories written by staff reporters
or taken from other newspapers which was not necessarily limited to
his particular territory, and for which the correspondent received
credit.6
Until February 1951,' during the course of the hearings in this
proceeding, it was customary for most of the correspondents herein
involved to come to the newspaper office every night, 6 nights a week,
from the hours of 6 p. m. to 12 p. m. or later," and there type up their
stories at one of the typewriters available. In addition to the type-
writers they also used the stationery, telephones, library, morgue, and
all other facilities of the newspaper. While in the office, they discussed
their problems with the night or suburban editor, answered telephone
calls, interviewed the public, and generally made the office their regu-
lar headquarters. The correspondents were also permitted the serv-
ices of a photographer who was supplied by the Employer after
approval of the editor.
The territory available to a correspondent is assigned by the Em-
ployer. The evidence indicates that as some territories are larger
and contain greater potentialities for news than others, the corre-
spondents assigned to the former have greater earning power. The
editors stated that one of the reasons for giving the correspondents
rewrite work was to supplement the income for the correspondents
from the less desirable territories.
The rate of pay is set by the publisher. Until recently it had been
10 cents per inch, now it is 15 cents. Besides the regular space rates
for copy published, there is added to the correspondent's pay check
certain reimbursements a and a bonus, which is either a flat rate per
6In 7uly 1950, when the negotiations for the current contract took place, the Guild
called the publisher's attention to the fact that the rewrite work should be done by the
salaried employees. The publisher agreed that in the future the space correspondents
would not be required to do this work. The evidence shows that since that date, the
correspondents have not done rewrite work on news outside their own territory.
On February 14, 1951, while the hearing in this proceeding was in progress, the
managing editor issued a rule to the effect that the suburban correspondents would not be
permitted to.use the newspaper office facilities in the future.
s The night editor denied that any correspondent was ever required to come into the
office. Several of the correspondents testified they were required to come in early in order
that their stories might be received before the deadline and the editor might have some
Idea of the amount of copy to be submitted. One correspondent testified that she was,
admonished for coming in late. The record is uncontradicted that six of the eight corre-
spondents came in regularly every night but one to do their work and that the other two
came in regularly but less frequently,'
O Most of the correspondents are reimbursed for the use of their automobiles in their-
work. The rate allowed is 51/ cents per mile. In one case, a correspondent is not allowed'
mileage, but he is paid a higher space rate, namely, 25 cents an inch instead of 15 cents.
The practice is for the correspondent to send in a memorandum twice a month indicating
mileage made . The correspondents are also reimbursed for telephone calls, postage etc.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
story or an arbitrary amount set by the publisher. This is done be-
cause frequently the amount of copy published does not reflect the
work which goes into a given story. The bonus payments are made
entirely at the discretion of the editor.'°
It is apparent from the foregoing that the Employer retains con-
trol over the earnings of these correspondents by determining the rate
of pay per inch, the amount of copy to be published, and by the pay-
inent of a regular bonus as extra compensation, which is entirely in
the Employer's discretion. The Employer also controls the earnings
in that it may, if it chooses, reimburse the correspondents for certain
expenses in connection with their work. The correspondents, as a
group, depend on this work as a major source of income for their liveli-
hood. They are not engaged in this work as a business for profit."
Although correspondents are not accorded certain employee bene-
fits,12 the work of the correspondents is the same and is interchangeable
with the work of the staff reporters. Furthermore, the correspondents
-ire frequently appointed to the regular staff of reporters. The work
they do is closely integrated with and constitutes an essential part of
the Employer's business in that the Employer is dependent upon their
work in order to cover the news required by its suburban subscribers.
The Employer contends there is no difference between these cor-
respondents and the part-time' correspondents or stringers, whom the
Petitioner does not seek to represent, and that all space correspondents
are independent contractors. We do not agree. The record amply
supports the contention that these suburban correspondents spend a
substantial amount of time getting news and preparing copy for the
Employer. The stringers, on the other hand, usually service a string
of newspapers, sending in news occasionally 13 from small communi-
ties where it would not pay the newspaper to engage the services of
10 These bonus payments are substantial and considerably increase the earnings of the
correspondent. They are not uniform as between different correspondents and not uniform
for the same correspondent. No explanation was offered by the editors how these bonus
payments are determined.
11 This is indicated by the fact that the right to offer their product to third parties is
limited by the Employer's prior claim thereto. Moreover, the conclusion that correspondents
are not independent contractors is strengthened by.the fact that reimbursement for such
expenses as may constitute an item in the determination of their profits lies entirely
within the discretion of the Employer. See The Dispatch Printing Company, Incorporated,
Ohio State Journal Division, 93 NLRB 1282.
12 A correspondent receives no paid vacations and gets no sick leave. When he is away
on vacation or is sick, the practice is for him to inform the editor in advance when he
goes on vacation or telephone him when he is ill, in which case he either makes an arrange-
ment for someone else to cover the news or the editor will appoint a staff reporter as
his substitute. The correspondent receives no other benefits, such as holiday pay, sever-
ance pay, military leave pay, etc. No social security taxes are deducted. However, in one
case, a former correspondent was considered an employee, and the Employer furnished
him with a car and deducted the usual taxes from his pay, although he was paid on a
space basis and worked under the same conditions as the other suburban correspondents.
13 An indication of the occasional character of the work of the stringers is evidenced by
their earnings. The record shows that the stringers earn from $300 a year or less to $900,
the latter representing an unusual situation, as compared to the full -time correspondents
whose earnings range from $2 ,200 to $2,800 a year for this newspaper.
PLAINFIELD COURIER-NEWS CO. 537
a full-time person. The stringers are usually housewives or people
engaged in other full-time pursuits, and are not generally expected to
retain a permanent or continuous position with any one newspaper 14
The Employer further contends that it does not control the earnings
of the correspondents because these depend primarily on the corre-
spondent's skill, initiative, and ability and that the bonuses paid are
merely extra compensation for a job well done; that the Employer
has no control over the manner of getting news or over the hours the
correspondent spends for the Employer; that the correspondent is
free to engage in other gainful occupations; and that the large turn-
over is an indication that the relationship is not intended to be per-
manent or continuous; and finally that the correspondent is not en-
titled to the benefits of or subject to any tax deductions as are the
regular employees.
We find no merit in these contentions. The record, on the whole,
supports the finding that the Employer exercises a high degree of con-
trol over the detailed work of these correspondents 15 As noted above,
the Employer not only sets the basic rate of pay for copy published
but is also the sole judge as to how much copy will be accepted for
publication. The regularity with which the bonuses are paid indi-
cates that these are in the nature of a salary intended as a supplement
to the correspondent's income rather than as a reward for good work.
Although, because of the nature of the work, it is not possible to super-
vise the correspondents while they are out gathering their news," the
Employer, in addition to setting certain standards and limitations in
the product to be submitted by the correspondents, exercises final
supervision by accepting for publication only what it wishes and re-
turning to the correspondent copy for conformity with the editor's
requirements.
Moreover, unlike the situation involving the relationship of an inde-
pendent contractor, the Employer here, may, if it is not satisfied with
the kind of copy presented, terminate at any time without liability its
relationship with the correspondent in the same manner as it would
discharge any other employee not otherwise under contract for a defi-
nite period.17 Notwithstanding the Employer's contention to the
14 The Board has, in the past, not considered "stringers" In the same class as reporters
or other regular newspaper employees . Greensboro News Company , Inc., 85 NLRB 54;
Worcester Telegram Publishing Co., 61 NLRB 1118; Register & Tribune Co., 73 NLRB 728;
Springfield Union Publishing Co., 64 NLRB 869; see also Columbia Reporting Company, 88
NLRB 168, where the Board distinguished staff reporters from free lance reporters, in that
the latter used their own offices and do work for many employers without giving the
particular employer the first call on their services.
15 Toledo Scale Company, 82 NLRB 826.
11 See Columbia Reporting Company, supra , where despite obstacles to supervision,
the individuals concerned were found to be employees within the meaning of the Act.
17 See Phillips Chemical Company, 90 NLRB No. 76, where the Board held such elements
as actual control and the power to terminate the employment relationship are of paramount
significance in determining the existence of an employer -employee relationship.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contrary, the practice of the correspondents of using this experience
as a training period and the fact that the turnover among correspond-
ents is high are not sufficient reasons. for denying the employee rela-
tionship 18 The additional facts that the correspondents are not paid
on the same basis and have not been subjected by the Employer to
income or other tax deductions is not in itself sufficient to establish
an independent contractor relationship.19 We therefore find, upon
the record as a whole, that the full-time correspondents are employees
within the meaning of the Act.
4. The appropriate unit :
The Petitioner seeks to represent the suburban correspondents
either in a separate unit or as part of the existing unit of editorial
employees currently represented by it. The Employer takes no posi-
tion.
The work of the correspondents and the staff reporters is similar
in many respects. Both are subject to the same kind of supervision.
Staff reporters and correspondents are assigned to cover the same
kind of news. Staff reporters are frequently directed to substitute
for a correspondent and the latter have been promoted to the regular
reporter's staff. Although the staff reporters are hourly paid and
correspondents are paid on basis of space, the Board has held that a
difference in the mode of payment is not a reliable criterion for deter-
mining how employees should be grouped.20
In view of the foregoing, and as the Petitioner has expressed its
willingness to accept these employees as part of the existing unit of
editorial employees, we believe that the correspondents may, if they
so desire, be represented as part of the existing bargaining unit.-
We shall, therefore, direct an election among the suburban correspond- .
ents, excluding stringers, supervisors, and employees allied with
management.22 If a majority of the employees in the voting group
cast their ballots for the Petitioner, they will be taken to have indicated
their desire to be a part of the existing editorial unit and the Peti-
tioner may bargain for such employees as part of the existing unit. 23
[Text of Direction of Election omitted from publication in this
volume.]
Js A.S. Abell Company, 81 NLRB 82.
R. C. Brooks , d/b/a Beechwood Lumber Company, 72 NLRB 940, where the Board
held that it will not distinguish between employees solely on the ground of difference in
the mode of payment ; Roy C. Martin Lumber Company, Inc., 83 NLRB 691, where the
Board held that payment by employer of workmen's compensation and social security taxes
is not decisive in determining the employee or the independent contractor relationship.
21 Port Arthur College, 92 NLRB 152.
21 Great Lakes Pipe Line Company, 88 NLRB 1370.
22 As the, evidence shows that Mahoney is a nephew by marriage of the president of the
Employer, he is excluded from the voting group in accordance with established Board
practice. Stan islaus .Implement t Hardware Company, 92 NLRB 897; Rosedale Passenger
Lines, Inc., 85 NLRB 527.
20 The Post Printing ct Publishing Company, 91 NLRB No. 4.
GENERAL PAINT CORPORATION 539
MEMBERS MuRDocK and STYLES took no part in the consideration of
the above Decision and Direction of Election.
GENERAL PAINT CORPORATION , PETITIONER and STEEL, PAPER-HOUSE
AND CHEMICAL WORKERS UNION, LOCAL 578, A. F. OF L.
GENERAL PAINT CORPORATION, PETITIONER and PAINT MAKERS UNION,
LOCAL 1232, A. F. OF L. Cases Nos. 11-KM-183 and 21-ISM-184.
July 25, 1951
Decision and Order
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before Jerome
A. Reiner, hearing officer. 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 Act.
2. No .:question affecting commerce exists concerning the repre-
sentation of employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
On March 2, 1951, the Steel, Paper House and Chemical Workers
Union, Local 578, A. F. of L., hereinafter called Local 578, and Paint
Makers Union, Local 1232, A. F. of L., hereinafter called Local 1232,
requested the Employer to give them a letter providing for recognition
of the Unions as representatives of the Employer's employees and
agreeing to negotiate a contract.' Local 578 sought to represent
employees engaged in truck driving, shipping, receiving, and ware-
housing; Local 1232 sought to represent production and maintenance
employees, excluding truck drivers, shipping, receiving, and ware-
housing employees. m
Representatives of Local 578 and Local 1232, acting jointly, advised
the Employer on March 2 that they did not represent a majority
of the Employer's employees and that they did not propose to make
further attempts to solicit members from among the Employer's em-
ployees. Efforts to secure recognition through the medium of a letter
were continued at that time, however, and thereafter on about March
' Local 1232 had filed a petition (21-RC-1775) on January 26, 1951, alleging that it
represented a majority of the Employer 's employees in a production and maintenance unit.
After the Employer had agreed to a consent election , Local 1232 withdrew its petition
February 14, 1951.
95 NLRB No. 68.