Pulitzer Publishing Co.

National Labor Relations Board - Board Decisions

May 7, 1979

242 N.L.R.B. 35 (N.L.R.B. 1979)

THE PULITZER PUBLISHING COMPANY
The Pulitzer Publishing Company and Miscellaneous
Drivers and Helpers Union, Local 610, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 14-CA-11019
May 7, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On December 19, 1978, Administrative Law Judge
Bruce C. Nasdor issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge as
modified herein and to adopt his recommended Or-
der.
The Administrative Law Judge found that Respon-
dent and Berberich's Delivery Company (herein Ber-
berich) 2 were joint employers and, therefore, that Re-
spondent violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and participate in collective-
bargaining negotiations with the Union which repre-
sents certain of Berberich's employees. We agree, for
the reasons set forth below, with the Administrative
Law Judge's conclusion that Respondent and Berbe-
rich are joint employers and that a violation of Sec-
tion 8(a)(5) of the Act has been established in this
proceeding.
The essential facts are not in dispute. Respondent
publishes "The St. Louis Post-Dispatch." Berberich,
pursuant to a cost-plus contract, delivers Respon-
dent's newspaper throughout metropolitan St. Louis.3
Under the contract, Respondent reimburses Berbe-
rich for all salaries, fringe benefits, medicare, and
health and welfare contributions, as well as social se-
curity and other taxes. It also pays Berberich's legal
fees. In fulfilling the contract, as explained in greater
i Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Producrs, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir, 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 Elsie Berberich and Wilbert W. Berberich d/b/a Berberich's Delivery
Co., a Partnership, appeared at the hearing as Party in Interest.
I Berberich also delivers Respondent's competitor, "The St. Louis Globe-
Democrat." Berberich has a total of 114 employees, including dnvers and
mechanics. Approximately 55 of these employees are assigned exclusively to
the delivery of Respondent's competitor, while the remainder are assigned
exclusively to the delivery of the Post-Dispatch. Thus, we do not agree with
the Administrative Law Judge that Respondent is the "raison d'erre" for
Berberich.
detail by the Administrative Law Judge. Berberich's
drivers are supervised in part by Respondent's dis-
patchers and "recovery men." The dispatchers have
in the past assigned routes and authorized overtime,
although, since July 1977, the dispatchers have usu-
ally given these directions through the intermediary
of an assistant manager, who is employed by Berbe-
rich. The record shows no instance, however, where
the Berberich manager has, in any manner, refused or
failed to transmit a dispatcher's instruction.
Berberich's drivers and mechanics are represented
in two separate collective-bargaining agreements by
the Union-one for Post-Dispatch drivers and me-
chanics and one for Globe-Democrat drivers and me-
chanics. 4 The Union has represented the drivers since
1947 and has negotiated with Berberich since 1961.
Prior to 1961, the drivers were working for a prede-
cessor company that delivered Respondent's newspa-
per.
The Union herein, in addition to representing Ber-
berich's employees, also represents a unit of dockmen
who work for Respondent. Until 1967, the dockmen
and Berberich's drivers were covered by one agree-
ment signed by both Respondent and Berberich.
Since 1967. however, the agreements have been sepa-
rate. Nevertheless, the record shows, and Respondent
admits, that, at least from 1961 until 1974, Respon-
dent negotiated terms and conditions of employment
for Berberich's employees. Respondent also partici-
pated in resolving grievances involving Berberich un-
til early 1977.
Respondent contends, however, that since early
1977 its relationship with Berberich has changed so
that it is no longer involved in supervising Berberich's
drivers on a daily basis or in establishing their terms
and conditions of employment either by negotiating
the contract or by resolving grievances. In support of
this contention, it notes that Berberich's supervisors
now work at the loading dock at Respondent's plant,5
and that Berberich is now solely responsible for set-
tling grievances. It also excepts to the Administrative
Law Judge's finding that at a meeting on October 4,
1976, it participated in negotiations which resulted in
the current collective-bargaining agreement between
Berberich and the Union. Moveover, it argues that it
is not a joint employer with Berberich since neither
party has any ownership interest in the other, and
4 Only the Post-Dispatch drivers and mechanics are at issue here.
5 Respondent was consulted by Berberich in the hiring of these supervisors
pursuant to the cost-plus contract. We note that there are six supervisors.
Three of the new supevisors supervise the drivers who deliver Respondent's
newpaper, while the other three supervise the drivers who deliver Respon-
dent's competitor. Thus, the Administrative Law Judge erred in concluding
that Respondent paid 90,000 for the salaries of the six supervisors. Respon-
dent only paid its pro rata share, or $45,000.
242 NLRB No. 11
35
I).('ISIONS 0() NATIONAI. i.ABOR RI.A'I IONS BOARD
because the cost-plus contract, as ound by the Board
in Cabot ('orportiion,6 does not, in and of itself, estab-
lish joint employer status.7
As stated earlier, we have decided to adopt the con-
clusion of' the Administrative Law Judge that Re-
spondent is a joint employer with Berberich. Unlike
the Administrative aw Judge, however, we do not
place as heavy reliance on Respondent's cost-plus ar-
rangement with Berberich in so concluding. Rather,
in finding that Respondent is a joint employer with
Berberich, we rely on the totality of evidence and
note significantly Respondent's demonstrated author-
ity to determine labor relations policies and terms
and conditions of employment for Berberich's drivers.
In this latter regard, the Administrative Law Judge
credited the testimony of Union Representatives liar-
land Horn and John Metz (and the record amply sup-
ports his findings) that, at the final negotiating session
on October 4, 1976, for the 1976 78 agreement be-
tween the Union and Berberich. Respondent's direc-
tor of labor relations, Marvin Kanne. negotiated with
representatives of the Union on the issues which were
holding up a final agreement. The most important
topic was a productivity bonus for Berberich's driv-
ers. In addition, Kanne also discussed better coopera-
tion from the drivers, and he proposed changes in the
system by which drivers bid on routes, ias well its
changes in scheduling to eliminate part-time work on
Saturday nights. Berberich did not send a representa-
tive to this meeting, rather, it allowed Respondent.
through Kanne, to handle these final negotiations.'
As a result of the October 4 meeting, agreement was
reached on a new contract. That contract, with ac-
companying letters from Respondent, was ratified on
October 18, 1976. and remained in effect until August
31, 1978.9
Respondent's negotiation of important terms, like
fringe benefits and scheduling in the context of' the
cost-plus arrangement and Respondent's supervisory
control over Berberich's drivers establishes Respon-
dent as a joint employer with Berberich. Its participa-
tion in negotiations also distinguishes the instant case
from ('uabo, s.vupra. and the other cost-plus cases cited
by Respondent, 0 for, in those cases, the respondent
corporations had no such role.T
Finally. Respondent argues that the unfair labor
practice charge, filed on December 23, 1977, was
barred by Section 10(b) of the Act because Respon-
dent allegedly first announced to the Union it would
not bargain about Berberich's employees in 1976. We
find no merit to this argument, however, because it is
clear that, whenever Respondent first allegedly an-
nounced a purported refusal to bargain,.2 Respondent
unequivocally stated a refusal to bargain within the 6-
month period preceding the filing of the instant
charge.' In sum, we conclude that Respondent's re-
fusal to bargain with the Union when requested to do
so violated Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended. the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent. The Pulitzer Publishing
Company, St. Louis, Missouri. its officers, agents, suc-
cessors, and assigns. shall take the action set forth in
the said recommended Order.
( it. ('hcnt/[u and I.4 ol( f'rA cr, Interntwntt I num .I F (O, and
i[i I.s al l1 nion Vr 4 23 (Fireslntth n'rtI1ii Ruhhoer & latex (rapunt,.
[)nIion ,l r/ the I rtinne Ttnr and Ruhh(er (lnplnp t. 173 N.RB 1244 ( 1968)1
1oht il (',r/prltuin. 219 NL.RB 511 1975).
In Ruimm . e.r. Ri,elln A ind ( , 558 F.2d 439 (1977), afg. 415 F1
Supp 792 (t).('.Mo 1976). cert denied 434 .S 955 1
97
7). the ighth
(ircuit recenlls recogilized the Importance of this factor in establishing joint
employer status. Thus, in allirming a dislrict court finding that Sears was not
a joint emploer. it staled:
Most significanltI the reoerd reteclts that Sears did not sign an) con-
tract between I)AS and l.ical 61() ad that Sears did not participate in
an) labor nlegtlatllion, which precedcd tormalion oi such a contract
I he paricpatioln of Respondent IT1 negtiatitrls In the intant case weighs
heavlN Ir the tpposile finidig which we make here.
12 While Respondent appairently argues that it told the Union in August
1976 that t would not bargain about Brberlch's emphloees, we note the
credited testinton ? . upra, that its director l lahbor relations engaged in such
bargainting i ()ctober 1976.
Pitrthureg/ n i :cfi , .mne Sl/ ( ' ,mlltn. 202 Nl RB 88). 891 (1973).
l)I('ISION
SIAI IMIN I t()I 111 CASI
' ('ht ('Corpiorali' intld Pintc tea clr i,/ 1 liwal, In. , 223 Nl Ri3
1388 (1976), enifd 561 1:.2d 253 ().('itr. 1977).
'We note that the Admillstr.ltie l.a Judge ialvldcrtentlk statel that
there were no Board )Decisions (11 joint enilpioyer sItIs ss .1flch sls1e c)st-
plus con tracts. I he relevant decisions are noted ahoe and below,
8'lhus, the Administrative aw Judge mistakenl concluded that Berhe-
rich was represented by attorneys Siegle and Speohrer at fie tiletilng Siegle
was not present at the negotiatling session. Spoehrer was there. but he was
representing the (ilobe-l)emnocrat
' By separate letters of October 18. 1976, Ka;nne also aissured Berherch.
inter alia. that Respondent would continue to discuss s baet pro lems with
the U'nion and that Rcspondent would Install it molorized convesor helt, as
requested by the I niton
BRIt( I: C. NASI)OR Administrative l.aw Judge: This case
was heard at St. Louis, Missouri. on June 5 6 and 7, 1978.
I'he charge in this proceeding was filed bh Miscellaneous
Drivers and Helpers Union. l.ocal 610. affiliated with Inter-
national Brotherhood of' Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, hereinafter called the
U nion. on [)ecember 23, 1977. The complaint in this matter
issued on May 9 1978, The complaint alleges that since
[)ecember 8, 1977, The Pulitzer Publishing Company, here-
inaler referred to as Respondent, violated Section 8(a)(1)
36
THE PULITZER PUBLISHING COMPANY
and (5) of the Act by refusing to recognize and/or partici-
pate in collective-bargaining with the Union concerning
proposed changes in the methods by which the delivering of
newspapers was to be accomplished. The issue, a legal one,
is whether Respondent is a joint employer of a unit of em-
ployees employed by Berberich Delivery Company, herein-
after referred to as Berberich. If such a joint-employer rela-
tionship exists, then Respondent is legally obligated to
bargain in good faith with the Union.
Upon the entire record in this case. from my observation
of the witnesses and their demeanor. and after due consid-
eration of briefs. I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged at 900 North 12th Street, St.
Louis, Missouri. in the publication, sale, and distribution of
a newspaper. advertisements, and related products. During
the year ending December 31, 1977, which period is repre-
sentative of its operations during all times material herein,
Respondent, in the course and conduct of its business op-
erations, derived gross revenues in excess of $200,000 from
the publication of a daily newspaper and subscribed to in-
terstate news services, the value of which services is in ex-
cess of $10,000, and regularly advertises nationally sold
products, the value of which advertisements is in excess of
$10,000. Respondent is now, and has been at all times ma-
terial herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE I.ABOR ORGANIZA()ON
The Miscellaneous Drivers and Helpers Union, Local
610, affiliated with International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America, is and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
Ili. THE FACTS
Respondent publishes a daily and Sunday newspaper
known as the St. Louis Post-Dispatch which is distributed
in the metropolitan St. Louis area. It has two dock facilities
and a dispatcher shack where the driver employees of Ber-
berich come to pick up the newspapers and distribute them
to Respondent's customers.
Berberich Delivery Company maintains two facilities,
one at 13th and Shenandoah Street in downtown St. Louis,
and the other at Fee Fee Road in north St. Louis County. It
is a family partnership and maintains contractual relation-
ships with Respondent and the Globe-Democrat which
competes with Respondent. Berberich provides the delivery
service of Respondent's newspapers. There are no interlock-
ing officers or directors of either Respondent or Berberich.
and Respondent has no financial interest in Berberich nor
does Berberich have any financial interest in Respondent.
Respondent conducts labor relations including griev-
ances and collective bargaining through Marvin G. Kanne,
director of labor relations. Approximately I labor organi-
zations represent various of Respondent's employees, in-
cluding Local 610. which represents the dockmen employed
by Respondent at its loading docks. Local 610 also repre-
sents Berberich's drivers. Berberich decides how many em-
ployees it will employ. Its trucks. which are used for the
delivery of Respondent's newspaper, bear a logo indicating
that the Post is being delivered.
The record reflects that on a typical workday Berberich's
drivers pick up their trucks at the facility owned by Berbe-
rich and proceed to a facility owned by Respondent where
they pick up newspapers for delivery. Presently drivers re-
ceive a "run sheet" from an assistant manager, a Berberich
employee. who directs drivers where to procede to pick up
the newspapers. The assistant manager receives the "run
sheet" from a dispatcher who is employed by Respondent.
Prior to July 1. 1977, drivers followed the same basic proce-
dure. but theN received their "run sheet" directly from the
Post dispatcher. After that date. the position of assistant
manager was created. Before hiring six assistant managers.
Berberich discussed their salary, $15,000 per year, with Re-
spondent.]
Respondent's dispatchers maintain records on each driv-
er's runs. When a driver finds it necessary to call the dis-
patcher shack, he talks to Respondent's dispatcher rather
than an assistant manager. Drivers carry the dispatcher's
phone number in the event of a problem such as a break-
down or a shortage of newspapers.
Respondent employs "recovery men" who ride in the
truck with Berberich drivers to give out new additions to
street vendors and take back unsold additions and collect
money. The "recovery man" tells the driver what route to
take in order to complete his pickups.
On some occasions, although infrequent, Respondent's
pressroom employees have accompanied Berberich's driv-
ers delivering printing plates. Respondent has also utilized
Berberich's employees and trucks to move furniture, and
Berberich has stored Respondent's T.V. remote truck in its
facility, which again, although infrequently. was driven by
a Berberich driver.
Respondent and Berberich have a cost-plus contract. Un-
der the terms of this contract, Respondent reimburses Ber-
berich for all salaries, fringe benefits, medicare, and health
and welfare contributions. If Berberich for any reason
ceases to be the contract hauler for Respondent, Respon-
dent shall reimburse Berberich "for all accrued benefits.
severance pay liability and each and every other commit-
ment or liability which arises out of Berberich's collective-
bargaining agreement and all other addenda. supplements
or modifications thereto, whether written or oral." Respon-
dent pays 7 percent of the gross payroll of the drivers,
assistant managers. and garage attendants to cover social
security taxes. Berberich is required to maintain workmen's
compensation, public liability, and property damage insur-
ance coverage, and Berberich assumes responsibility for
any liability for loss or injury to life or property caused by
any of its employees. In the event of a strike of Berberich
employees, which would prevent Berberich from perform-
ing pursuant to the contract. Respondent agrees to continue
to pay expenses attributable. Adjustments may be made in
I Berberich is reimbursed the $90,000 by Respondent.
37
I)l('ISI()NS OF NAI()ONAI. LABOR REI.ATIONS BOARD)
the cost structure on a ear-to-Near basis. 'Ihe contract also
provides that nothing contained therein shall he construed
to suggest that the parties, Berberich and Respondent. are
general partners, limited partners. joint ventures, or joint
employ ers.
Presentl3, Berherich is reimbursed for the cost of legal
counsel to represent it in business affairs. At some time
prior, Berherich used Respondlent's attorneys at no cost to
it.
Record testimon'y reveals that at least since 1961. Berhe-
rich and the Union hase been parties to several collective-
bargaining agreements. Moreover, during the negotiations
leading up to the execution of said collective-bargaining
agreements, representatives of Respondent were present
and actively participated in the negotiations.? During the
negotiations fr the 1976 78 agreement, representatives of
Respondent were not present until October 4, 1976h. the daN
that the parties reached final agreement. On that date Mar-
vin Kanne director of labor relations for Respondent, ap-
peared. and according to testimon b Iarland Hlorn, sec-
retary-treasurer and business agent for the Union. Kanne
made various proposals including wage proposals. Kanne
denied that he made any proposals and testified that he was
present flir the purpose of explaining the productivity bo-
nus contained in the contract. According to the testimony
of John Metz., president of the local. Kanne involved him-
sell'f in discussions relating to the contract. ('ounsel for the
('harging Party in his brief states that no Berherich repre-
sentative wUas present at the final session. T'his is incorrect as
the record reflects that attorneys Siegle andlt Spoehrer were
present to represent Berherich.
Ihe record is satiated with documentar y evidence, in-
cluding correspondence between Respondent and the
IJnion. and Respondent and Berherich. relating to Berbe-
rich's drivers. There are also addenda to collective-bargain-
ing agreements signed by representatives of the Respondent
and documents reflecting that Respondent. acting through
the Newspaper Publisher's Association, was directly in-
volved in grievances concerning Berberich's drivers.' For
example, there are records of' arbitration hearings, and a
brief prepared bh the St. I.ouis Newspaper Publisher's As-
sociation, for and on behalf of: Berherich. 'Ihe cases in-
solved arbitration proceedings between the Union and Ber-
herich. Representing the St. Louis Newspaper Publisher's
Association was Munro Roberts, an employee of Respon-
dent.
An overview of the documentary evidence reveals the
following: ( I ) .etters to and from Respondent to the Union
giving assurances that (luring the term of the contract be-
tween Berberich and the Union the Respondent will pre-
serve union-members work (known as "stop letters'); (2)
Addenda to contracts signed by Kanne requesting certain
load limits being tolled in the delivery of the newspapers:
reference is also made to an understanding expressed in
D)uring negolations in 1973, Respondent's Iirector fi L abor Relatilns
submitned to Hllrn, the union represenlative, a document entitled "Publish-
ers 1973 (ontrac Proposals"'' It slates. inlr (/li: "a lew of the proposals
which the publishers feel are a 'must' in order to increase our flexibiliit and
enlble us it sursise are sel Iorlh below."
A peirusal 1 the docurment reflects that Ihe proposalis ilcall ith l ages,
hours. and woirking conditions of' drivers
I the Newspaper Publisher's Assocition uas catled i1i Respondenls
building.
negotiations for the new collective-bargaining agreement
1976 78, and that the driver's stewards had a right to dis-
cuss the issue with management:' A letter from Respon-
dent's circulation manager to the Union outlining delivery
operations f'or Respondent's new plant, wherein Respon-
dent through its circulation manager also assures the Union
that no drivers will be laid off nor will any stops be re-
moved: (4) There are also various letters from Respondent's
management personnel to union representatives concerning
Berberich's employees and relating to issues such as sick
leave. pensions, contract negotiations, deliveries, contract
proposals and disposition of grievances.
Until sometime early in 1977 drivers or their steward
would take their grievances and problems to Berberich. If
agreement could not be reached with Berherich. the Union
would ask for a meeting with representatives of Respon-
dent. The Union would meet bef'ore a joint standing com-
mittee comprised of union people and individuals from Re-
spondent's labor relations department. Then l)irector of
Labor Relations T'[rent would present Berberich's positions.
In early 1977 Berberich informed I nion Representative
Hlorn that in the future anll problems would have to be
settled with Berberich.
On October 3. 1977, the Union wrote to Berberich and
Respondent. Kanne's attention, setting forth its position
that Respondent and Berberich were joint employers, re-
questing an opportunity to bargain concerning changes or
contemplated changes in opportunity to bargain concerning
changes or contemplated changes in the wages, hours, and
working conditions of certain employees, including Berhe-
rich's drivers. Respondent rejected the Uinion's joint-em-
plover contention and responded that it had no obligation
to bargain ith the t iion as the representative of' Berbe-
rich's emploc>ees.
Analysis and Conclusions
The fcts in this case are essentially undisputed. The only
area of' divergence is the testimony of Kanne where he
denied that he made any proposals during the 1976 negotia-
tions but was mrerels present for the purpose of explaining a
productivity bonus. Ihis is contrasted to the testimnony of'
UInion Representatives Htorn and Metz that Kanne in-
volved himself in discussions relating to the contract and
made various proposals. including wage proposals. I do not
think the ultimate conclusions reached rise or fall in this
conflict. but I do resolve said conflict in favor of' Metz and
IHorn and I discredit Kanne's testimony in this area. I be-
lieve this credited testimony tends to show a continuing
pattern on the part of Respondent to exert control over
Berberich's labor relations.
The record in this case amply demonstrates that, at the
very least, Respondent shares the control over labor policies
affecting the drivers who work for Berherich. The Board
considers labor relations factors critical in confronting a
joint-employer issue. 7e Southlrland Corororation, Speedee 7-
Eleven, 170 NL.RB 1332 (1968).
Respondent points out that Berherich hires, fires, and dis-
ciplines its drivers without Respondent's participation. Al-
' Although Respondent contends it did not participate in negoliations lor
Ihe 1976 78 cllectlve-bargaining agreement. these references are still in the
addenda aached to ha; conlract
38
I t 'l ITZFIR Pt lISIIIN( COMPANY
though this is supported hb the record. and while Respon-
dent's control of' the drivers' das-to-da', ork is not as
extensive as Berhberich's, it is substantial. See. on cr1
7rutcilng (Co. and.4( c -. 4l/ine rchit Inic. Inc.. 177 NI RB
13 ( 969).
In mn opinion, the emplomenit of' assistant malnagers
and the clhange in the form of processing grievances in 1977
are changes in form rather than substance. lhe other crite-
ria of joint-employer status are sufticienl enough to weigh
heavily in fta:or of such a finding.
Although I do not completely agree with the Gieneral
Counsel that the terms of the cost-plus contract ttall
eliminate the normal entrepreneurial risk t'actor. I do be-
lieve that the contract demonstrates a reciprocal financial
dependence between Berberich and Respondent.' The cost-
plus contract plays a significant role in my concluding that
Berberich and Respondent are joint employers. It seems to
me that Respondent is the very raison d'etre or Berberich's
existence. One can readily see why Respondent would he
more than remotely interested in the wages. hours, and
working conditions of Berberich's employees. Respondent's
concern is graphically demonstrated in the "Publisher's
1973 Contract Proposals,"'' where it exposes the fragililt and
vulnerahility of' its position. Although Respondent argues
that the mass of' evidence involves pre-1976 mratters. I am
not persuaded bhy the record that the mutual dependence
hetween Respondent and Berberich is presently any less
tenuous. I believe the situation involving Berberich's hirilng
of assistant managers further illustrates the control exer-
cised by Respondent. The hiring of' six assistant mlina;gers
costs Respondent $90,000 per year. and Berberich could
not get involved in such an undertaking without first lis-
cussing it with Respondent.
I am constrained to conclude on the basis of the totalit
of the evidence that Respondent is a joint employer ith
Berberich and, as such, has refused to bargain with the
Union in iolation of' Sections 8(a)l I) and (5) of' the Act.
Respondent argues that even if a joint-employer relation-
ship once existed there is insufficient eidence to estahlish
such a relationship or bargaining obligation during the
10(b) period. The facts in the instant case reveal a iolation
of the Act. within the 10(h) period. Relevant evidence as to
the existence or nonexistence of' a joint-employer relation-
ship should not he limited to the 6-month (hb) period.
Rather, pre-10(h) and post-10(b) eents and circumstances
are relvant and admissible. See. l.ocal l.odic \o. 1424. In-
ternatllinal 4.swciultiona . o lachini[.c, 41. ('1( / B-ian
Manufallurinig (omnam' ] v. L. R B., 362 L .S. 411 1960()).
Respondent avers that the General ('ounsel has failed lo
prove the appropriateness of the unit alleged. he question
of the appropriateness of the unit, in the context of this
case, is a legal question in the same sense as the oint-em-
ployer issue. Respondent's denial of the appropriuteness of
the unit is consistent with its legal arguments relatlise to the
joint-employer issue. No eidence was produced to reflect
or demostrate a lack of communit of interest or an other
factors which would prove that the unit is inappropriate.
Based on the contract and the histor of' bargaining. I find
'The cases applying jiini-empliser criteria d nt nloe cost-plU cn-
tracis. thus shedding n light on this elemenm
1tnd cionclude that the unlit alleged i the complaintI is an1
appropria;te unit.
('OM I t SI0rS l A\\
I. Ihe Respondent is an emplo.er engaged in commllerce
within thie nicaning oif Section 2(6) and (7) of the Act.
2. Respondent anid erhberich are, alnd at all times ml;te-
rial herein he been, joint cmploers oft the ernploee in
the unit described beloA.
3. All drivers. helpers. hundle bos. tele.ision truck dris-
ers. roll paper drivers mechanlics, garaige attenidalts. and
rack repairmen pcrforming s ork relating to the distribution
of the St. ouis Post-Dispatch. excluding all other emplo -
ees. guards and supervisors as defined in the Act, constitute
a nllit appropriate for the purpose of collectise hargaminlig
within the mneaning ol' Section 9(b) of tile Act.
4. he nion is a lahbor organi/ation uithin the meaning
of' Section 2(5) of the Act.
5. At all times material herein. the tInion has been the
dul, selected representatiec. for the purposes of' collective
hargaining of' the emplosees in the unit described abhoe.
an id h \ rtue of Section 9 (a) of the Act. has been. aid is
now. the exclusive representative of all the emploees in
said uni t for the purposes of collective bargaining with re-
spect to rates of' pa, wages hours of' emplolmenit and
other terms and conditions of' employ ment.
6. B refusing to hargain collectiel' with the L'nion as
the exclusive representatixe of all the emplo!ees in the ap-
propiate unit, Respondent has engaged in. and is engaging
in. unfair labor practices ithin the meaning of Sections
8(;I)() anl ( of, the Act.
11i1 RI 1I i)
I laslnl\ tlund tlhat Respondent has egageed in unfair la-
hor practices w.ithin the me aning of Sections 8(a)( I ) and (5)
of' the Act. I shall recomilmend it be ordered to cease anid
desist therefrom and to take certain atfirmatise action de-
signed to eflcctlate the policies ol the Act.
Ihe iolal ions commit ted hb Respondent do not go to
the ver', heart of the Act. nor do the! demonstrate it pro-
cliit to ,iolate the \ct. Accordingls. in mn recommended
Order I will use the narrov, cease-iand-desist languat'ge "'In
ans like or relaled nmaniler."
I shall recommlend th;at Respondent he ordered to bar-
gain wGitlh the lion .as the exclusive representatixe of the
emplo\ees in the appropriate unit ith respect to rates of'
payv wLages. aid termnis aid conldlitions o emrplomernlt.
lpon the toregoing indings o(f f' ct, ctonclusions cof las.
alind the entire record. and pursuaLnt to Section 1()(c) o the
Act. I issue the lollosin recommendeld:
()Rl) R"
I he Pulitier Publishing ('Compan. St. I.ouis, Missouri. its
officers. agents. successors. ;111td assigns. shall:
cIln the ecnl n eceptln .Ire liled .Cs Ir,lded hb Sec 10240 fi the
Rulls and Rcgullarillns the Niiiona.l I.lhr ReLi.ion, Bloard. the findings.
CO lCcIC,,lIl . .ind icconie ndeiicd ()rder herci shll , ;ls pro ilded in Sc 102 48
of the Ric' ind Regiullon,,s e .idoptc h lic RBord .aid ecoilec its
finding. i conclusis a.nd ()rder. nd ad l ohlectlon n Ihcrelo shall he deemed
Wscicd oir 1i1 iplrposc
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive representative of all the employees in the ap-
propriate unit described below.
(b) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
(c) The appropriate bargaining unit is:
All truck drivers, helpers, bundle boys, television truck
drivers, roll paper drivers, mechanics, garage atten-
dants and rack repairmen performing work relating to
the distribution of the St. Louis Post-Dispatch, exclud-
ing all other employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective-bargaining within the meaning
of Section 9(b) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Henceforth, upon request of the Union, bargain col-
lectively with the Union over wages, hours, and working
conditions, and any other terms of employment of the em-
ployees in the appropriate unit described above.
(b) Post at its premises, copies of the attached notice
marked "Appendix."7 Copies of said notice, on forms pro-
vided by the Regional Director for Region 14, after being
duly signed by Respondent's authorized representatives,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive 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 no-
tices are not altered, defaced, or covered b any other mate-
rial.
(c) Notify the Regional Director for Region 14, in writ-
In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and to carry out
its provisions.
WE WILL NOI refuse to bargain with Miscellaneous
Drivers and Helpers Union, Local 610, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union),
over wages, hours and working conditions in the unit
of employees which is:
All truck drivers, helpers, bundle boys, television
truck drivers, roll paper drivers, mechanics, garage
attendants and rack repairmen performing work re-
lating to the distribution of St. Louis Post-Dispatch,
excluding all other employees, guards and supervi-
sors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
WE WILL, upon request, meet with and bargain col-
lectively with the Union as the collective-bargaining
representative of the employees in the unit described
above.
W: WILL NOI in any' like or related manner, inter-
fere with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act.
TiE PUI .rzER PUBLISHING COMPANY
40