Stockholders Publishing Co., Inc.,

National Labor Relations Board - Board Decisions

Jan 9, 1941

28 N.L.R.B. 1006 (N.L.R.B. 1941)

In the Matter of STOCKHOLDERS PUBLISHING COMPANY, INC., and Los
ANGELES NEWSBOYS LOCAL INDUSTRIAL UNION No. 75, C. I. 0.
In•the Matter Of HEARST PUBLICATIONS, INCORPORATED (Los ANGELES
EVENING HERALD & EXPRESS DEPARTMENT) and Los ANGELES NEws-
BOYS LOCAL INDUSTRIAL UNION No. 75, C. 1. 0.
In the Matter of TIMES MIRROR Co. and Los ANGELES NEWSBOYS LOCAL
INDUSTRIAL UNION No. 75, C. 1. 0.
In the Matter of HEARST PUBLICATIONS, INCORPORATED (Los ANGELES
EXAMINER DEPARTMENT) and Los ANGELES NEWSBOYS LOCAL INDUS-
TRIAL UNION No. 75, C. 1. 0.
Cases R-1923 to B-1926 inclusive.Decided January 9, 1941
Jurisdiction : newspaper publishing industry.
Investigation and Certification of Representatives : existence of question:
refusal to enter into collective bargaining negotiations prior to determination
of employee status of the newsboys ; election necessary.
Units Appropriate for Collective Bargaining : (a) all full-time newsboys and
checkmen who are engaged to sell the News within Los -Angeles, California,
excluding bootjackers, temporary, casual, and part-time newsboys; (b) all
full-time newsboys and check-men who are engaged to sell the Herald within
Los Angeles, California, excluding bootjackers, temporary, casual, and part-
time newsboys; (c) all newsboys engaged in the street sale of the Times at
established spots 4 or more hours a day, 5 or more days a week, within Los
Angeles and Glendale, California, except temporary newsboys; and (d) all
newsboys engaged in the street sale of the Examiner at established spots 4 or
more hours a day, 5 or more days a week, within Los Angeles, California, except
temporary newsboys.
Definitions : newsboys engaged in street vending of newspapers held to be
employees within the meaning of the Act.
Mr. Frank A. Mouritsen, for the `Board.
Mr. L. B. Bin f ord and Mr. Howard M. Bin, f ord, of Los Angeles,
Calif., for the News.
Flint and McKay, by Mr. Edward L. Compton and Mr. Donald
W. Hamblin, of Los Angeles, Calif., for the Herald.
Cosgrove .ct O'Neil, by Mr. T. B. Cosgrove and Mr. F. B. Yoakum,
Jr., of Los Angeles, Calif., for the Times.
Lawler, Felix ct Hall and A. L. Mitchell, by Mr. JohA M. HO and
Mr. Marcus Matson, of Los Angeles, Calif., for the Examiner.
28 N L.R B, No. 151
1006
STOCKHOLDERS PUBLISHING COMPANY, INC. 1007
Mr. Pat Cow°e, Mr. Roy Eley, and Gallagher, Wirin d Johnson,
of Los Angeles, Calif., for the Union.
Mr. Eugene R. Thorrens, of counsel to the Board.
.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On various dates, hereinafter mentioned , Los Angeles Newsboys
Local Industrial .Union No. 75, C. I . O.,,herein called the Union,
filed ^with • the Regional Director for the Twenty-fir 'st Region (Los
Angeles, California ), petitions alleging that questions affecting com=
morce had , arisen concerning representation of employees of Stock-
holders Publishing Company, Inc., Los Angeles , California , herein
called the News, Hearst Publications , Incorporated ( Los Angeles
Evening Herald , & Express Department ) Los Angeles , California,
herein called the Herald , Hearst Publications; Incorporated (Los
Angeles Examiner Department ) Los Angeles , California , herein
,called the Examiner , and The Times-Mirror Company," Los Angeles,
California , herein called the Times ,2 and requesting investigations
and certifications of representatives pursuant to Section 9 (c), of the
National Labor Relations Act, 49 Stat . 449, herein called the Act .3,
By orders entered July 31, 1939 , March 27, 1940, and June 5, 1940,
the National Labor Relations Board,'herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor- Relations Board Rules and Regulations-Series 2,
as amended , ordered an investigation in each case and authorized
,the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice . By orders entered March 27 , 1940, and
I Designated in the notice of hearing herein as "Times Mirror Co."
2 All four are herein together called the Companies
a The Union filed its petitions relating to the cases involving the News and the Herald,
being Cases Nos. R-1923 and R-1924, respectively , on April 21 , 1939. On June 16, 1939,
and June 8, 1940, it filed an amended and a second amended petition , respectively, in
Case No. R-1923.' At the hearing on June 18, 1940 , counsel for the Board and counsel
for the News entered into a stipulation with respect to the meaning of terms describing
the appropriate unit contained in the petition as amended in Case No . R-1923 and the
Union further amended its petition in that case to conform to the stipulation . On Feb-
ruary 7, 1940, and on June 10, 1940, the Union filed an amended and a second amended
petition , respectively , in Case No. R-1924 , and at the hearing , on June 14, 1940 , counsel
for the Board and counsel for the Herald entered into a written stipulation with respect
to the meaning of terms describing the appropriate unit contained in the petition as
,amended in Case No. R-1924 . The Union filed its petition with respect to the case
involving the Times , being Case No. 11-1925, on March 21, 1940 . On June 7, 1940 , it filed
an amended petition in Case No . R-1925. The Union filed its petition with respect to
,the case involving the Examiner , being Case No. R-1926, on May 18, 1940 . During
the course of the hearing on June 22 , 1940, the Union moved to amend its petitions in
Cases Nos . R-1925,and R-1926 with respect to the allegations concerning the appropriate
unit and the Trial Examiner reserved his rulings upon the motions for the consideration
of the Board. The motions are hereby granted.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 5, 1940, the Board, acting pursuant t(l Section 9 (c) of. the Act
and Article III. Section 10 (c) (2), of said Rules and Regulations-
Series 2, as amended, directed that the 4 cases be consolidated.
Each of the Companies filed motions to dismiss the petitions accom-
panied by answers.4 In substance, these pleadings asserted that the
Companies' activities did not affect commerce and that the newsboys
whom the Union sought to represent were not employees within the
meaning of the Act. In addition, each of the Companies alleged
that the unit sought by the Union in each case, respectively, was
inappropriate. -'
On June 5, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Companies and the Union.
Pursuant to the notice, a hearing was held at Los Angeles, California,
from June 10, 1940, to June 27, 1940, inclusive, before Thomas H.
Kennedy, the. Trial Examiner duly designated by the Board. The
Board and the Companies were represented by counsel. The Union
appeared by representatives. All participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues. During
the course of the hearing the Trial Examiner made several rulings
on motions and on objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and;finds,that-
no, prej udicial errors were committed. The ruling's are hereby affirmed.
The Union and the Companies have filed briefs which'have been
considered by the Board. None of the parties requested the privilege
of oral argument and none was held.
After the hearing, counsel for the Board, and counsel for the Com-
panies entered into a stipulation, dated September 26 and October 1,
1940, for correction of errors in the transcript of the testimony and,
on October 4, 1940, the Board issued its order making the stipulation
a part of the record.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. TAE BUSINESS, OF THE COMPAU^ S
A. Stockholders Publishing Company, inc. -
Stockholders Publishing Company, Inc., a Nevada corporation, hav-
ing its principal place of business in Los Angeles, California, is
4 The Tiial Examiner granted the Companies' applications to have their respective
motions to dismiss and answers stand as to the petitions as amended during the course
of the hearing The Trial Examiner was not requested by any of the parties to rule
on the motions to dismiss and the Trial Examiner made no rnling^ thereon: For 'the
reasons hetieinafter indicated , the motions to dismiss - are herebN denied
The facts related in this section are set forth in written ? tipuiations , signed by each
of the Companies and introduced in evidence
STOCKHOLDERS ' PUBLISHING COMPANY, INC. 1009
engaged in the publication, distribution, and sale of a daily (except
Sunday) newspaper, "The News."6 The principal raw materials used
in the printing of the News'consist of newsprint, mats, ink, and photo-
graphic supplies. During the year 1939, all the newsprint, costing
approximately $470,000, and all the mats, costing approximately
$4,800, were obtained outside the State of California. During the same
period, all the ink, costing approximately $16,000, and most of the
photographic supplies, costing, approximately $3,600, were purchased
within the State of California. The daily average circulation of
the News for March 1940'-,gas 195,725 copies, 534 of which were' cir-
culated and distributed outside the State of California.
The News uses the wire reports of United Press which furnishes
news sent from outside the State of California. It uses daily ap-
proximately 27,000 words obtained from this wire service. -In 1939
the News published 13 feature services which it received from service
nooses located outside the State of California.
During 1939, 9,909,000 lines of space was devoted to local, national,
and classified- advertising. Of this advertising space, 1,500,000 lines
were devoted to national advertising.
B. Hearst Publications, Incorporated
1. Los Angeles Evening Herald & Express
Hearst Publications, Incorporated, is) a California corporation
with its principal office and place of business in San Francisco, Cali-
fornia. It is engaged in the publication of various daily and Sunday
newspapers, including the Los Angeles Evening Herald & Express.'
U About April 1, 1940, the News combined "The Daily News ," the morning edition, and
"The Evening News," and thus established a 24-hour publication under a single name,
"The News "
° In addition to the Herald , Hearst Publications , Incorporated , operates five other
newspapers ( Los Angeles Examiner , San Francisco Examiner , San Francisco Call-Bulletin,
Oakland Post -Enqunei, and Seattle Post -Intelligencer ) and owns stock in the following
subsidiaries : ( 1) American Weekly, Inc, a New York corporation which publishes "The
American Weekly ," a Sunday magazine and conic section which is a supplement and
part of various Sunday newspapers published in cities throughout the United States ;
(2) Illinois Publishing and Printing Company, an Illinois corporation , which publishes
the "Chicago Herald -American"; ( 3) Pitt Publishing Company , a Pennsylvania corpora-
tion , which publishes the "Pittsburgh Sun-Telegraph " and operates through its subsidiary
WCAE , Incoiporated , radio station WCAE ; and (4 ) The Times Publishing Company,
it Michigan corporation , which publishes "Detroit Times " Hearst Publications , Inc., is a
wholly owned subsidiary of Hearst Consolidated Publications , Inc, a Delaware corporation,
all of the common stock of which is owned by The Hearst Corporation , a Delaware cor-
poration , it wholly owned subsidiary of American Newspapers , Inc , a Delaware corporation
Clarence J Sheaf n, as voting trustee, holds the legal title to all the common stock of
American Newspapers , Inc, for the benefit of William Randolph Hearst. Hearst Con-
solidated Publications, Inc., The Hearst Corporation, and American Newspapers, Inc , have
various subsidiaries engaged in the publishing and other businesses in various parts of
the United States Cf. Matter of William Randolph Hearst, Hearst Publications, Inc,
Hearst Consolidated Publications , Inc., Hearst Corporation, American Newspapers, Inc,
and King Features Syndicate , Inc, and American Newspaper Guild, Seattle Chapter, 2
N. L R B . 530, enfd as mod., National Labor Relations Board v Hearst , 102 F. (2d) 658
(C C A 9)
1010 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
The Herald is an evening paper published daily except Sunday
at its plant in Los Angeles 8 and distributed throughout the State
of California, principally in the metropolitan area of Los Angeles.
Its daily circulation averages 243,022 copies, of which approximately
37 hundredths of 1 per cent or 903 copies are sold and distrbiuted,
outside the State of California.
The principal raw materials used in the printing of the Herald
include newsprint, mats, and ink. During the year 1939, all the
newsprint, consisting of 18,915 tons, was obtained from the States
of Washington and Oregon and the Dominion of Canada. During
the same period, all the mats, numbering 60,700, were obtained frolic
the State of New York. The ink used, amounting to 664,408 pounds,
was manufactured in the State of California.
The Herald uses the wire reports of the International News Serv-
ice," "the Associated Press,10 the United Press," and the Dow-Jones
Financial Service. It uses daily approximately 332,000 words re-
ceived from these services. The Herald supplies at least one wire
service engaged in the interstate transmission of n&vs with local
news which the Herald has collected. In 1939 the Herald received
and published approximately 40 feature services, the material for
many of which was prepared and originated in States other than the
State of California.
During the year 1939, an average of 39 per cent of the space in
the Herald was devoted to advertising. Of this advertising space,
84 per cent contained advertising originating in the State of-
-Cali-fornia while the remainder, 16 per cent, contained advertising
originating outside the State of California.
2. Los Angeles Examiner 12
As we noted above, Hearst Publications, Incorporated, also pub-
lishes the Los Angeles Examiner. The' Examiner is a morning
newspaper published daily, including Sunday, at its plant in Los
Angeles, California." It has a daily 14 average circulation of ap-
8 This plant is exclusively devoted to the publication and distribution of the Herald and
is operated independently of other papers published by Hearst Publications, Incorporated.
8 For a desciiption of the business of International News Service, see Matter of William
Randolph Hearst, et al and American Newspaper Guild, Seattle Chapter, 2 N L. R' B.
530, enf d as mod., National Labor Relations Board v Hearst , 102 F. (2d) 658 ( C. C. A 9).
1O Fora description of the Nation -icide business of the Associated Press, see Matter of
The Associated Press and American Newspaper Guild, 1 N L R B 788, enf'd, National
Labor Relations Board v Associated Press, 85 F (2d) 56 (C C A 2), 301 TI S 103.
11 For a description of the business of the United Press, see Matter of United Press
Associations and American Newspaper Guild, 3 N L R B 444
12 See Matter of Hearst Publications, Incorporated ( Los Angeles Examiner Department)
and Newspaper Circulators , Wholesale Distributors and Miscellaneous Employees t7nion
No 21666, American Federation of Labor, 25 N L R B 621.
11 This plant is devoted exclusively to the publication of the Examiner and. is operated
independently of other Hearst papers.
14 Exclusive of Sunday.
STOCKHOLDERS PUBLISHING COMPANY, INC. 1011
proximately 213,460 copies and a Sunday circulation of approxi-
mately 566 ,175 copies . It is distributed throughout the State of
California , principally in the metropolitan area of Los Angeles. Of
the daily circulation , approximately 2 per cent ' or 3,743 copies are
sold and distributed outside the State of California . Of the Sunday
edition, approximately 8 per cent or 46,091 copies are sold and
distributed outside the State of California.
The principal raw materials used in printing the Examiner in-
clude newsprint , mats , and ink. During the year 1939 , all the news-
print, consisting -of-31,470 tons , was obtained from the States of
Washington and Oregon and the Dominion of Canada . During the
same period , all the mats, numbering 51,100, were obtained from the
State of New York. The ink used, amounting to 1,065,581 pounds,
was manufactured in the State of California.
The Examiner uses International News Service , Associated Press,
and Dow-Jones Financial Service wire reports. It uses daily approxi-
mately 88,750 words obtained from these services . The Examiner sup-
plies at least one wire service engaged in the interstate transmission of
news with local news which the Examiner has collected . In 1939 the
Examiner received and published approximately 58 feature services,
the material for many of which was prepared and originated in States
other than the State of California.
During the year 1939 an average of 32 per ' cent of the space in the
daily -and "48 per, cent of the Sunday issues of the Examiner was de-
voted to advertising . Of this advertising space , 89.67 per cent con-
tained advertising originating in the Sate of California while the
remainder , 10.33 per cent , contained advertising originating outside
the State of California.
C. The T mes-lllirror Company
The Times-Mirror Company, a California corporation, having its
principal place of business in Los Angeles, California, is engaged in
the publication, distribiitlon, and sale of ,"The Los Angeles Times," a
morning newspaper, published daily including Sunday,,at its plant in
Los Angeles. During the year 1939 the Times had an average daily
circu'ation of 220,266 copies and a Sunday circulation of 367,814 copies.
It is distributed throughout the State of California, principally in the
metropolitan area of Los Angeles. Of the average daily circulation,
approximately 1.7 per cent or 3,935 copies were sold during the year
1939 outside the State of California. Ofthe Sunday edition, approxi-
mately 2.5 per cent or 9,197 copies were sold during the same period
outside the-Sate of California.
The principal raw materials used in printing the Times include
newsprint, mats, and ink. During the year 1939, all the newsprint,
413397-42-vol 28--(
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having a value of $2,086,870.12,.was purchased outside the State of
California. During the same period, all the mats, having a value of
$6,909.00, were purchased outside the State of California. The ink
used, having a value of $99,476.85, was purchased in' the State of
California. „
The Times uses the wire reports of the Associated Press, the United
Press, and Dow-Jones Financial News-Service' In addition,,it receives
wire service from the Chicago Tribune and the New York News, and
obtains photographs from Wide World Photos and the Associated
Press. The Times supplies news,gathered and "'assembled by it to the
Associated Press. In 1939, The Times received from national syndi-
cates and published at least 10 feature services, among the more promi-
nent being Walter Lippman, Westbrook Pegler, and American
Institute of Public Opinion (Gallup Poll).
During the,year 1939, an average of 39.9 per cent of the space in the
Times was devoted to advertising. Of this advertising space, 14.1 per
cent contained national advertising.
H. THE ORGANIZATION INVOLVED
Los Angeles Newsboys Local Industrial Union No. 75, C. I. 0., is a
labor organization chartered by the Congress of Industrial Organiza-
tions admitting to membership all persons in the metropolitan area of
Los Angeles employed in the general distribution and sale of news-
papers, magazines, and periodicals, except those who have the power
to hire and discharge.
III. STATUS OF THE NEWSBOYS INVOLVED IN THIS PROCEEDING
The Union, seeks in this proceeding to obtain from the Board cer-
tification as collective bargaining representative of persons who en-
gage in the street sale of newspapers published by the Companies.
As we have noted above, the Companies resist the Union's petitions
contending, inter alia, that the relationship between each of the
Companies and the newsboys who sell their respective publications
is that of vendor and vendee, that the newsboys are not employees
within the meaning of the Act, and thus are not entitled to its -pro-
tection. We pass to a consideration of that issue.
Circulation managers of the respective Companies control the gen-
eral execution-of their policies relating to newspaper distribution.
The metropolitan area of Los Angeles, the territory in which the
newspapers are generally, distributed, is divided for administrative
purposes into specific geographical districts, and district managers-
assigned by the circulation manager to assist in the circulation and
distribution of the newspaper in these districts control the execution
STOCKHOLDERS PUBLISHING COMPANY, INC. 1013
of the Companies' policy with respect to newspaper circulation and
distribution within such districts 15
Each district manager works in an assigned geographical area,
varying in mileage, within which he is authorized to distribute the
newspaper published by his company. He receives for his, services
a fixed salary or a guaranteed minimum plus commissions. His
name is carried on the company pay roll, and, admittedly, he is an
employee of the publisher.11' Each' district manager obtains news-
papers for purposes of distribution at the publisher's 'plant, travels
throughout his district and delivers the newspapers or directs com-
pany-employed truck drivers to haul the newspapers, wrapped in
bundles and addressed to specific newsboys, in trucks provided by the
publisher. The newspapers are delivered to newsboys, who sell
them to the public, or are delivered to so-called checkmen 17 stationed
at important corners or spots who redistribute the newspapers to
newsboys stationed at neighboring corners or spots of lesser im-
portance."' For his services in redistributing newspapers the check-
man receives a small salary from the publisher. He is carried on
the publisher's pay 'roll. At least to the extent of such services,
he is admittedly an employee of the publisher. In addition to such
wholesaling activities, the checkman sells newspapers to the public
and, in all other respects, he occupies a position similar to that of
the ordinary newsboy.
The publisher makes a charge against the district manager for
each newspaper that he takes from the plant. Likewise the district
manager enters a charge, which is set by the publisher,19 against
the newsboy or the checkman, as the case may be, for each newspaper
delivered to him-, and the checkman charges the newsboy an amount
equal to the sum charged the checkman by the district manager. At
the end of the selling period, the newsboys settle with the district
manager or the checkman, as the case may be, the checkmen settle
18 In the Herald organization , placed between the circulation manager and the district
managers are four branch managers w ho have charge of circulation and distribution in
a number of districts and who immediately supervise the work of the district managers
In the Times organization , a supervisor of street sales , who stands in a position similar
to the Herald branch manager , superintends all Times' district managers In the Examiner
organization , the P. M street sales manager is the counterpart of the Times supervisor
of street sales. The record does not disclose whetuei a comparable position exists in the
News organization. >
19 See , also; Matter of Hearst Picblications,' Incorporated (Los Angeles Examiner De-
partment ) and Newspaper Circulators , Wholesaler Distributors and Miscellaneous Em-
ploilees Union No 21666, American Federation of Labor , 25 N L R B 611, where, in it
complaint proceeding , the Board found that Examiner district managers were employees
of that publication.
ii Sometimes the checkmen are referred to as "main-spot " while the other newsboys
are called "off-spot" boys or men
18 The Times does not employ such checkmen.
19 Except in the case of the News , where the publisher permits the district manager
to determine the'amount charged by him. _
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the district manager, and the district manager accounts to his
superior for the newspapers. Except in a residential section-under
the supervision of A. W. Brewster, Herald branch manager, the
newsboys are permitted by each of the Companies to return all
unsold copies and receive credit for them.20' The, price of each of
the newspapers to the public is set by the respective Companies and
is printed on the. masthead. The newsboys retain for themselves as
earnings the difference between the amount they pay the publisher
for the newspaper and the sum they receive for it from the public 2'
Although Herald supervisors, including Circulation Manager Wil-
liam J. Harrison and branch manager A. W. Brewster testified that
newsboys have the "right" to determine the number of newspapers
to be included in their established order, it is undenied that the
district managers unilaterally determine the number of "extra" pa-
pers, in excess of the established order, which the newsboys must
attempt to sell. Moreover, in practice the newsboys cannot deter-
mine the size of their established order without the cooperation of
the district manager. Thus, Arthur Steuart testified that daily regu-
lation of the size of his established order was impossible since "the
district man tells me that it takes too much trouble in his bookkeep-
ing." In such situations, the newsboys' privilege is limited to a
reallocation of his order with respect to the number of papers of
a given edition without changing the total number of papers in
the established order for the day. Several other instances, moreover,
reveal' that the newsboy often-bas no voice in the determination of
the established order.22 The experience of Sam Kahn, a checkman
for the Herald and for the News, is illustrative. On cross-examina-
tion by counsel for the Herald, Kahn testified, in part, as follows:
Q. Now, do you put in every clay to your district man a
standing order for papers?
A. No, sir... .
25 Newsboys selling the Herald in Brewster's territory do not receive credit for news-
papers delivered to them as' part of a so-called established or "standing" order The
established order is determined by "experience" with reference to the number of papers
normally sold at a given corner or spot Even in Brewster's territory, the newsboys
receive full credit for all newspapers delivered to them by the district manager in excess
of the established order remaining unsold In certain instances Herald district managers
have given the newsboys partial credit for unsold copies
21 Piior to the fall of 1935 , the Times paid Edward Patch, a Times newsboy, a weekly
bonus, which be received in the form of a Times check, in addition to the differential
retained by newsboys Since the fall of 1935 when the Times discontinued the bonus
payments , there has been no substantial change in the Times mode of operation in the
circulation of its newspaper with respect to Patch. '
"Circulation Manager Harrison admitted in his testimony that the newsboys are
permitted to increase their orders "within reasonable limitations". and that the Herald
often unilaterally lowers the established order to prevent excessive returns
STOCKHOLDERS PUBLISHING COMPANY, INC. 1015
Q. Well, will you explain then how you buy the papers that
you obtain, that is, the Herald and Express?
A. It isn't that I buy it. I have to take what they give me.
Q. You mean that you don't indicate in any respect how
many papers-you want from day to day?
A. No, sir. Well, sometimes if the papers are going good
I will ask for an increase; but I get an increase at times re-
gardless of whether they are going good or not, especially during
this time, during the war crisis.
Q. Well, prior to the war crisis, didn't you tell your district
man from time to time how many papers you wanted?
A. No, sir.
Q. You mean you have nothing to do with the number of
papers that are delivered to you?
A. No, sir.
Q. Do you supply papers to, other boys on that corner?
A. Yes, sir.
Q. Do you supply any particular number on any given day
to them?
A. Well, not exactly. I just know how many they sell and
I give them that many.
Q. Do they tell you how many they want?
A. No, sir.
Q. You give them the number that from past experience you
know they can sell, is that it?
A. Yes, sir.
Q. And you endeavor to sell the rest yourself?
A.... Ido... .
Celestino Sanchez, Grover C. Nixon, and Harry L. Buhl, Examiner
newsboys, gave similar testimony with reference to the distribution
of the Examiner establishing that the district managers determine
the number of papers delivered to those newsboys. Shortly prior
to the hearing when the Times changed its press time from 5 to 6
o'clock Roy Eley's "order" was reallocated without his request by
the Times' district manager with the result that Eley received the
same number of papers in one delivery that he formerly got in two.
The newsboy customarily obtains his corner or spot by making
application at the plant of the publisher where he consults a district
manager. The applicant usually inquires whether there is a coiner
or spot "open:" If an opening exists, the district manager escorts
the newsboy to the corner or spot and furnishes him with newspapers
or directs him to a checkman who shows the newsboy his territory
and furnishes him with newspapers. Thus, Harry Plotkin, Herald
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
district manager, testified that he "hire"[d] all the newsboys in
his district who "work[ed] under" the checkman and that on such
occasions it was his practice to send the successful applicant to see
"the [check]man in charge there . . . [who] will put [him] to
work . . . and supply him with papers. . . ." Sidney Glen Mur-
ray,'News district manager, stated in his testimony that applicants
"come to me for a job and if they like it, why, to keep it and if they
don't, I will have to look up somebody else.. .." In reply to an,
inquiry at the hearing as to whether he ever phiced newsboys on
corners, Julius J. Cohen, superintendent of street sales for the Times,
disclosed that "boys have come in and asked for corners and I have
asked the district men if they have any corners. open." In recent
months preceding the hearing, William H. Seebolt, Examiner dis-
trict manager, placed newsboys on spots in the. downtown area where
the Examiner "didn't have . . . anybody then to sell," and Gilbert
Navarro and Nicholas Volanty, Examiner night district managers,
admitted in their testimony that they placed newsboys on corners
in-their respective districts.
. Not- only do the district managers of the Companies allocate cor-
ners and spots, they also issue detailed directions as to specific places
within the newsboy's allotted territory in which to engage in selling
activities, particularly with reference to standing in street traffic and
covering business establishments where large numbers of people
congregate. District Manager Plotkin of the Herald instructed
Sam Kahn, a checkman, to "always play that safety zone and get
out into traffic." Although Kahn finds that he can sell more news-
papers while stationed on his corner, he regularly patrols the safety
zone in the street,in compliance with Plotkin's order. Ivan Moore,
News district manager, told James V. Apice, a News checkman, to
instruct a newsboy to whom Apice distributed papers to sell in the
safety zone "for such time as was necessary." Thomas McKinney,
Times district manager, did not deny that he gave the following in-
structions to Roy Eley, a Times newsboy, when he first began selling
papers. Eley related that
[McKinney] counted out a certain number of papers . . . he
told me that there was one of those that was not to be charged
to me, that I should leave it at the drug store in the market,
and at the same time I should go up to the liquor store just
above there, where there was a certain sale, and over to the
little restaurant where there was another certain sale, and then
come back to the corner, to work through the market, and get
out on the traffic line, in the traffic.
When Frank Curtis, Times' district manager, transferred newsboy
=Rbberts• from his. original. place to a 'spot,, across the, -street' where a'
STOCKHOLDERS PUBLISHING COMPANY, INC. 1017
"drive-in-stand" was located ; Roberts was instructed by Curtis ": .
to work traffic and cover this drive -in -sta"nd.. . You - have, got' to
watch them cars in there every ten or fifteen minutes and make the
stands and work your traffic as much as possible. . . . Now ,' it's all
right "to go in" this 'stand and go in the bar there and flash your
papers, but do not blast your headline or anything like that. . . .
The management objects to that but . . . hold your paper up and
give the customers a chance to see the paper . Don't cause any dis-
turbance . . . Go right back to your safety zone." When Ernie
Latham first began selling the Examiner , William Jackson, Exam-
iner district manager, took Latham to his corner, told him to "watch"
the corner , to "work" the market located nearby, and to "work the
white [traffic ] lines" in the street . , On another occasion , Jackson
told Latham, who then operated as a checklnan , to instruct an off-
spot boy to whom he supplied papers "to work in the safety zone."
The Companies furnish boxes , racks , change aprons , and placards
advertising special features contained in the newspapers , bearing the
name of the publisher . To facilitate the work of the newsboy and
to increase circulation , according to-the testimony of several news-'
boys, the district managers distribute such equipment and advertising
matter to the newsboys with instructions to keep the newspapers in
the boxes or the racks and to display the advertising matter on posts,
fire plugs , or other vantage points.23 -
Generally the newsboy is required to be at his post from the time
the newspapers customarily appear on ,he street to the time settle-
ment is made . 24 Instances are found in the record where the district
manager definitely fixed the newsboy's hours. Ed Bryant, a newsboy
who sells the Herald, the News, and the Examiner, testified that he
understood that the hours of the Herald and of the News were from
9 to 7 and that he received such information from Joe Woods , Herald
district rrlanager, and two or three unnamed Examiner district man-
agers, who told him "what time the editions came out . . . [on] the
streets. " Questioned by the Trial Examiner, Bryant, a witness called
by the Herald, admitted that he was not his own "boss" because he
could not "open . . . and close" whenever he wished and had "to
work specified hours." Although Joe Woods appeared as a witness,
he did not testify with respect to this aspect of the case . Isaiah J.
Moore, News district manager, stated in his testimony that he worked
from 10: 20 in the morning - until 6: 15 at night; that he had "ten
13 In some , instances this is not denied. In others, district managers implicated by
the newsboys' testimony, deny giving such instructions and say that the newsboys know-
what to do with the boxes, racks, and advertising material without instructions
24 when the publisher plans to issue an "extra," district managers notify the newsboys
who are expected to attend their locations on such occasions either before or after the
usual selling period.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all-day boys that work all day" and 20 to 30 boys who work after
school "for" him; -that the 10 newsboys sell from the time that he
arrives on the street with the first edition of the paper to the time
that he. "leaves at night" when he collects from the newsboys ; and
that "the schoolboys work-from approximately 3:30 to 7 o'clock."
When Lou Law, News district manager, assigned Frank, B. Smith
to a corner at Fifth and Los Angeles in December 1939 or January
1940, he was instructed by Law to "be there between 4:30 and 5 in
the morning, . . . work until 10 and check in. . . ." John F. Fields,
Times newsboy, testified that at, the time he "first started" he was in-
structed by Bill Moore, Times district manager, to report at the
Times concourse at 4: 30 daily (except Saturday and Sunday), 2
o'clock on Saturday, and 3 o'clock on Sunday, and to "check in"
when Moore appeared at approximately 1 a. in. Bill Moore was not
a witness.
When Thomas McKinney, Times district manager, assigned .Roy.
Eley, a Times newsboy,'to an off-spot at Fletcher and San Fernando,
he was instructed by McKinney, among other things, "to work until
11 o'clock." Eley appeared daily at the Times concourse to report
to McKinney before proceeding to his spot. Customarily McKin-
ney and other Times district managers transport by automobile
Times newsboys from the Times concourse, where they report to
sell newspapers, to spots within their districts.25 Harry L. Buhl,
an Examiner newsboy, testified that he was instructed by Abe Pierce,
Examiner district manager, to be at his (Buhl's) location at 6 p. m.
although the papers do not ordinarily reach his corner until 6: 45
or 7 o'clock, and to "check in" at the Belmont Grill where Pierce
appeared at 1 a. in. Pierce was a witness but he did not deny, B uhl's
testimony.
The record is replete with instances in which district managers
have removed, permanently or temporarily, newsboys from their
corners or transferred them from one location to another, for various
reasons. About Christmas 1937 Harry Gish, a newsboy, was re-
moved from his spot by Joe Woods, Herald district manager, Who
received recurring complaints concerning Gish's personal unclean-
liness from the manager of a business establishment located near
Gish's spot who threatened to appeal to the local health authorities.
Gish was never restored to his spot. Woods admits this. Joe Roth,
a 73-year-old newsvendor, testified that he- was "fired" twice by
Woods.26 Shortly prior to January 1939, Woods removed Roth be-
' Times district managers pay 12 newsboys a , small sum each week for providing
transportation for other newsboys and the Times makes an allowance to the ' district
manager to cover this expense.
20 As hereinafter appears , apparently Roth meant that woods threatened discharge on
one of the two occasions
. STOCKHOLDERS PUBLISHING COMPANY, INC. 1019
cause of his record for excessive returns of unsold newspapers. After
Roth lodged a grievance with the Union, Woods restored Roth to
his corner. Shortly after January 1939, Woods found Roth selling
the Herald for 4 cents. Woods warned: "You can't sell those papers
--for-4 dents.' 'The'-price is 5 cents. If I find out you do that again,
I'll fire you." Thereafter, Roth observed the established retail price
of a nickel. Woods testified both before and after Roth gave his
testimony. At first Woods stated that he "never fired anyone."
When Woods testified later, at the instance of the Herald, he was
not interrogated with respect to Roth. We do not therefore credit
Woods' general denial. In October or November 1938, James V.
Apice, a newsboy, was removed from his corner by George E.
Hutchinson, Herald district manager. When Apice appealed to the
Herald downtown office, a Mr. Neal, who is not further identified
in the record, informed Apice that he was "fired" because the Herald
had received a complaint from an outraged father to the effect that
Apice had made indecent remarks to a young girl. Friendly busi-
nessmen circulated a petition in Apice's behalf and presented it to
the Herald. After an investigation of the matter, in which Apice
was cleared, Neal told Apice to return to work, and he resumed sell-
ing at his corner after a 4-day enforced absence. This -is not denied.
Lou Law, News district manager,- transferred Edward V. Smith, a
newsboy, from one corner to another on December 4, 1939. Law des-
ignated the new corner and told Smith that there would be a man
there to show Smith where to sell. When he reported to the new
corner, a man there showed Smith his territory. Law did not testify,
and the record does not disclose the reason for the transfer. Like-
wise, Roy Eley, a Times newsboy, was transferred from a location in
Glendale, California, to another spot by Times' district manager,
Thomas McKinney, to enable McKinney to assign to the Glendale
spot another newsboy who operated an automobile and who could
provide transportation for other Times newsboys traveling from the
Times concourse to locations en route to Glendale. Shortly prior to
Christmas 1938, Frank Curtis, Times district manager, removed per-
manently John A. Roberts, a Times newsboy, from his spot when
Curtis decided that Roberts disposed of an insufficient number of
newspapers to warrant his retention. According to Roberts, Curtis
stated : "Roberts, I can't use you any more ; I am going to have to
put somebody on there that will hustle that spot. I have got so
many papers to-sell and I have got to put somebody on there that
will work it better than you are." Curtis was not. a witness. In
September 1939, Nick Volanty 27 removed Charles Seklemian from
' Volanty described himself in the record as a P M street manager for the Examiner.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his spot and later reinstated him. According to the latter's testi-
mony, Seklemian was told by Volanty that he had received a tele-
phone call at the office of the Examiner from an operator of a bees
garden in Seklemian's territory who stated that he would bar Sek-
lemian from the beer garden since he wore a Bridges or C. I. 0.
button. Seklemian further testified that he-was chided by, Volanty,
for not concealing such buttons, that Volanty stated that Seklemian's
sales had been declining, and that Volanty informed Seklemian that
"the office was sending out another hustler" as a substitute at a cost
of $4.50 for the night. As a result, the next night Seklemian did
not sell papers. The following night, however, he persuaded Vo-
lanty to change his mind and obtained reinstatement. In his tes-
timony Volanty denied generally that he ever paid a newsboy any
amount to substitute for Seklemian; otherwise, he failed to testify
about the button incident or Sekletnian's removal. We find that Sek-
lemian was removed from his corner and subsequently reinstated
under circumstances substantially as related above by him.
The' record also contains evidence with respect to the extent of
the Companies' supervision over the conduct of the newsboys while
they are engaged in selling newspapers on the street. While the
Companies assert that their relation-to the newsboy who "buys"
his papers from the publisher and who "pays" cash for them is
strictly that of seller and buyer, yet the diligence of the newsboys
is closely observed by the circulation department. Thus Harry
Plotkin, Herald district manager, admitted in his testimony that it
was part of his duties to "go around and see that . . . the newsboys
are working" and that the checkman's duties consisted, in part,
in seeing that the newsboys, who receive newspapers, from- check-
men, "are out there working." Darrell Cole, who described him-
self as a circulation representative for the Examiner, testified that
it was part of his duties to check the conduct of street sales -by
traveling through the districts and' observing whether the newsboys
were stationed at their corners selling the Examiner. He testified
that' if he .found a newsboy absent from his post, he waited until
the newsboy returned, noted the length of the period elapsing be-
tween the time of his own arrival at the corner and the time of
the newsboy's return, and submitted a written report to his superior,
Arthur Hampson, Examiner supervisor of night street sales .211 The
supervisor or the investigator transmits the complaints to the dis-
trict manager who brings the matter to the attention of the offend-
21 in addition to Cole, the Examiner employs two others who, like Cole , perform similar
services. ^
STOCKHOLDERS PUBLISHING COMPANY, INC.11021
ing newsboy with the view of remedying the situation in the future.29
About 6 to 9 months before the hearing, Herald district manager,
Louis K. France, showed Arthur Steuart, a Herald checkman, a
yellow slip of paper, containing various reports, which purported
to sli'ow, among' other things, that neither newsboy or newspapers
could be found on Steuart's corner one night at 8: 58 p. m. Steuart
was told by France that he obtained the slip from a "spotter" who
drives through the district and checks the corners; and France in-
structed Steuart to keep his corner "covered" thereafter until 9 p. in.
On one occasion when William Jackson, Examiner district manager,
found Ernie Latham, an Examiner newsboy, sitting on a fire plug
and holding one remaining copy of an early edition of the Examiner,
Jackson inquired why Latham was not working, stated that "the
office would be on [him] if they [caught Latham] sitting down,"
and told Latham "... to get out there and sell those papers." On
another occasion, Jackson arrived at Latham's location while he
was eating his lunch in the corner drug store. When Latham's
object in visiting the drug store was learned by Jackson, he told
Latham to "get a sandwich and stay outside on the corner."
In April 1939, Harry Plotkin, Herald district manager, notified
Sam Kahn, a checkman, of a 2- or 3-day lay-off. When Kahn asked
for an explanation, Plotkin stated: "Bill Abels 3° . . . the checker,
came by and told me to lay you off because you weren't on your
corner . . . hustling." Harry Relis, who sold the, News, found it
necessary to absent himself from his corner during an unstated
period once or twice a week for 2 to 3 hours' at a time. During these
intervals he had another newsboy cover his spot. Martinez, News
district manager, called Relis' attention to his absences, sayings: "You
know that you have to stay on this corner all the time because we
want to sell papers.", Martinez ,was not a witness. Times district
manager Curtis reprimanded newsboy Roberts because he stopped
trying to sell papers during a rainfall, and as we noted above,
Curtis discharged Roberts the next day for not hustling.
As a general practice, the newsboys sell more than one newspaper
and handle magazines." In certain instances, however; the -Com-
29 At the hearing Hampson denied that he ever made use of Cole 's reports to discipline
a newsboy . He admitted , however, that he had no knowledge whether district managers
disciplined newsboys as the result of Cole's reports and he was not interrogated with respect
to the use he made of information gained from the reports of the Examiner 's two other
investigators We do not credit Hampson ' s testimony
\ssistant ,.to Jake Gratz , Heiald branch manager , and Plotk,in's immediate superior.
Joe Woods , Herald district manager, supplies most of these magazines , including the'
Saturday Evening Post and Liberty, to the newsboys The newsboys return to Woods
all unsold copies for credit, and retain for themselves the difference between the price
they receive from the purchaser and the amount chii rged for each magazine by Woods
Although Woods handles the magazines as a side line business in which the Herald has
no direct financial interest or control , he engages in such business with the permission of
William J Harrison, Herald circulation manager
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panies have objected to the newsboys' handling competing publi-
cations. Herald district manager France warned Arthur Steuart
to quit selling the People's World, the Hollywood Tribune, the
Sports Weekly, and Ham and Eggs because that practice "was not
allowed by the Herald" and instructed Steuart to handle only such
publications as were "authorized" by the Herald. Prior'to Novem-
ber 1, 1937, when the Her ld and' the News instituted a joint distri-
bution plan for the street sale of their newspapers, France told
Steuart not to handle the News himself and instructed him to refuse
to serve customers who asked for the News in the absence, of the
newsboy who sold that publication on the same corner. Likewise;
Abie Peters,32 Examiner district manager, instructed Ernie Latham
not to handle the Times and Bill Moore, Times district manager,
directed Phillip Tellis and John F. Fields not to sell the Examiner.
By arrangement, instituted about November 1, 1937, between the
Herald and the News, substantially the, same set of newsboys sell
both newspapers although they are supplied with the papers by sep-
arate district managers representing each publication. The pub-
lishers of these newspapers have agreed as to the manner in which
the newsboys shall hold and display the respective papers. In ac-
cordance with that agreement, district managers of the News and of
the Herald have instructed the newsboys to hold the Herald, a paper
larger in size than the News, on the inside, and the News on the
outside in order to insure display of the masthead of each newspaper
in such manner as to be visible to the public eye. The agreement
also provided that the newsboys specify both newspapers by name
in their cry. • A News district manager instructed one of the news-
boys to hold up both newspapers or none but not to display one and
not the other in such manner. District Manager Plotkin of the
Herald disclosed in his testimony that the newsboys have "had" to
display the newspaper prominently by holding it up in the air or, in
the parlance of the trade, to "pitch that sheet."
Since its organization, the Union has presented on various occa-
sions grievances to the Companies and has made various efforts to
negotiate terms and conditions of employment for the newsboys. The
Companies have dealt with union representatives with respect to
such grievances, but, as we hereinafter point out, the Companies have
refused to negotiate a contract with the Union.
On the basis of the foregoing we are of the opinion that the Com-
panies have the right to exercise, and do exercise, such control and
direction over the manner and means in which the newsboys perform
their selling activities as est, blishes the relationship of employer and
32 Whether this is the same Pei son as Abie Pierce, Examiner district manager, is not
clear from the record.
STOCKHOLDERS PUBLISHING COMPANY, INC. 1023
employee for the purposes of the Act.33 Through the district mana-
gers, who are authorized to act as the publishers' representatives in
the circulation and distribution of their newspapers, the Companies
hire the newsboys by the allotment of corners and spots, thus pro-
viding them with a place to work, furnish company-owned equip-
ment and paraphernalia to facilitate newspaper sales, and require
the newsboys' attendance at their posts and attention to their work,
within customary limits, during relatively definite hours. Moreover,
the Companies control the number of papers delivered to the newsboys
.for the purpose of sale, limit their earnings by the establishment of a
fixed "wholesale" and retail price for the newspaper, afford them a
return privilege for unsold papers with the exceptions hereinabove
noted, and supervise the newsboys' selling activities as to such details
of performance as the manner of calling, holding, and displaying the
newspaper, and place of its, sale within the allotted territory. Fur-
thermore, the Companies at will discharge the newsboys, transfer them
to other locations, and lay them off as disciplinary measures. The
newsboy is not free to sell where he will; he must operate in a certain
area under Company-imposed conditions; if he does not succeed in
selling, he will be dismissed. Since the relationship contemplates
services of an indefinite duration terminable at the will of either party,
the newsboy has no vested interest in the newspaper business. Al-
though he is not carried on the Companies' pay rolls, the newsboy is
an integral part of the Companies' distribution system and circulation
organization.
The Companies urge that the nature of the control exercised by
the Companies and acquiesced in by the newsboys is That incidental
to the control exercised by any seller of a commodity who may impose
conditions as a part of the terms of sale and who has the privilege
to refuse to sell. at his caprice. We are not persuaded by that con-
tention. - The method by which the newsboys are, compensated for
their services is a convenient accounting device employed by the
Companies to measure the earnings of the newsboys and to provide
an incentive for increased newspaper circulation. While the news-
boys absorb loses resulting from poor credit risks, this indicates
no more than that they, like sales agents in other fields, are not
authorized by the Companies to extend credit in the sale of news-
" Section 2 (3) of the Act provides in part "when used in this Act (3) The term
'employee' shall include any employee In cases where the status ,of an indi-.11
vidual was challenged, we have indicated that the statutory definition of the term "em-
ployee" embraces all emplo3ees in the conventional as well as legal sense, except those by
express provision excluded and that the primary cons:deiation in the determination of
the applicalility of the statutory definition is whether effectuation of the declared policy
and purposes of the Act comprehend securing to the individual the rights guaranteed and
protection afforded by the Act See, for example, Matter of Seattle Post-Intellsgencer
Department of Hearst Publicat,ons, Inc and Seattle Newspaper Guild, Local 82, 9 N L.
R B 1262.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
papers. Nor is the fact that the newsboys generally sell competing
publications with the•know]edge and acquiescence of'the Companies,
inconsistent with the newsboys' status as employees. -14 The simul-
taneous existence of the employer-employee relationship between an
.employee and two or more competing employers is not uncommon,
especially where compensation- is dependent upon and measured by
sales. Finally, counsel for the Companies cite California and other
local decisions establishing the status of newsboys as independent
contractors with respect to the publisher's liability in tort and work-
men's compensation proceedings, We do not herein pass upon the
nature of the relationship for other purposes, but hold upon this
record that the newsboys here involved are within the definition of
employees as the term is used in this Act.' Accordingly, we find that
the newsboys involved in this proceeding are employees within the
meaning of Section 2 (3) of the Act.
IV. THE QUESTION CONCERNING REPRESENTATION
Shortly prior to the filing of the petitions, the Companies were
requested'by the Union to recognize it as collective bargaining repre-
sentative of, their respective newsboys. The Companies refused to
enter into collective bargaining negotiations with the Union prior to
determination of the employee status of the newsboys. We find that
questions have arisen concerning the representation of employees of
the Companies.
V. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON
COMMERCE -
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Companies
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce. -
VI.•THE APPROPRIATE UNITS
The petitions, as amended, allege that the following.units are
appropriate: (1) all full-time newsboys and checkmen who are
engaged to sell the News within Los Angeles, California, excluding
bootjackers,36 temporary, casual," and part-time newsboys; (2) all
14 Some 'newsboys occasionally hire others to sell newspapers on a commission , or straight
stipened , basis Such employment by a' newsboy under the circumstances disclosed in this
record does not affect his own relationship with the Companies.
a^ A bootjacker is a newsboy who sells to the general public at places other than estab-
lished corners or spots.
18 The terms "temporary" and "casual" are used synonymously and they are here intended
to have their ordinary meaning.
STOCKHOLDERS PUBLISHING COMPANY, INC. 1025
-full`htinie newsboys and checkmen who are engaged to sell the Herald
within Los Angeles, California, excluding bootjackers, temporary,
casual, and part-time newsboys; (3) all newsboys engaged in the
street sale of the Times at established spots 4 or more hours a day,
5 or more days a week, within Los Angeles and Glendale, California,
except temporary newsboys; and (4) all newsboys engaged in the
street sale of the Examiner at established spots 4 or more hours a day,
5 or more days a week, within Los Angeles, California, except tempo-
rary newsboys. At the hearing counsel for the Union and counsel
for the Herald and for the News entered into stipulations with
respect to the meaning of the terms contained in the petitions as
amended describing the alleged appropriate units in Cases Nos. R-1923
and R-1924.
Thus defined, with respect to the Herald, the term "full-time" news-
boy includes a newsboy who sells to the general public all edition S,3T
or all except the first edition, of the Herald 5 or more days a week,
and excludes, among others, part-time newsboys; the term "part-
time" newsboy includes a newsboy who sells to the general public
less than six editions of the Herald a day, excluding full-time news-
boys as defined above.
With respect to the News, the term "full-time" newsboy includes a
newsboy who sells to the general public the fifth and subsequent editions
of the News, except the seventh edition,38 5 or more days a week, and
4xcludes; among 'others, part-time newsboys ; the term "part-time"
newsboy includes a newsboy who sells to the general public less than
five editions of the News a day.
According to the allegations of the petitions, as amended, in Cases
Nos. R-1925 and R-1926, the term "established spot," as used in those
petitions, refers to a place where a newsboy has engaged in the street
sale of the Times or the Examiner, as the case may be, 5 or more days
a week for a period of 6 consecutive months or more, and the term
"temporary" newsboy,-as used in those petitions,. includes a newsboy
who has engaged in the street sale of the Times or the Examiner, as
'the case may be, at an established spot for 30 days or less.
Although the Companies circulate and distribute their newspapers
in suburban areas outside Los Angeles, the Union has organized only
the newsboys who sell newspapers within Los Angeles, except in the
case of the Times. In addition to the newsboys selling the Times
within Los Angeles, the Union has organized the newsboys selling the
17 The,FIerald publishes six editions each day of publication
38 The News publishes 10 editions etch day of publication The first, second, third, and
seventh editions of the News are reserved for motor routes and suburban dealers and are
not sold on the streets of Los Angeles
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Times in Glendale, California, a suburb of Los Angeles.3° All news-
boys engaged in the selling of newspapers in the metropolitan area
of Los Angeles are eligible to membership in the Union.
Each of the Companies contends that the unit sought by the Union
in its respective case is inappropriate because newboys,40 having inter-
ests similar to those whom the Union seeks to Represent as exclusive
bargaining representative, are excluded. The Union desires to ex-
clude bootjackers, temporary, and part-time newsboys since they con-
sist largely of schoolboys who do not depend upon the vending of
newspapers for a-livelihood and because of the irregularity of their
employment. Similarly the Union does not desire to include in the
unit the suburban newsboys, other than the Times newsboys in Glen-
dale, California, because organization has not as yet been extended
to the suburban group generally. Since those whom the Union desires
to be included in the unit are, in general, mature individuals who daily
.rely upon their earnings from the street vending of newspapers as
their source of support, since the Union is the only labor organization
existing among the newsboys, and because union organization has not'
at present extended to suburban newsboys other than the Times-news-
boys in Glendale, California, we find the following units, as requested
by the Union, to be appropriate for the purposes of collective bargain-
ing : (a) All full-time newsboys and checkmen who are engaged to
sell the News within Los Angeles, California; excluding bootjackers,
'temporary,'casual, and part-time newsboys; (b) all full-time newsboys
and checkmen who are engaged to sell the Herald within Los Angeles,
California, excluding bootjackers, temporary, casual, and part-time
newsboys; (c) all newsboys engaged in the street sale of the Times
at established spots 4 or more hours a day, 5 or more days a week,
within Los Angeles and Glendale, California, except temporary news-
boys; and (d) all newsboys engaged in the street sale of the Examiner
at established spots 4 or more hours a day, 5 or more days a week,
within Los Angeles, California, except temporary newsboys. We fur-
ther find that said units will insure to employees of the Companies the
full benefit'of their right to self-organization and to collective bar-
gaining and otherwise effectuate the policies of the 'Act.
VII. THE DETERMINATION OF REPRESENTATIVES
At the hearing lists prepared by the Herald, the News, and the
Times were introduced in evidence purporting to show the following
19 T' e Times also circulates and distributes its newspaper in suburbs other than Glendale,
California.
40 Including temporary and part-time newsboys , bootjackers , and newsboys engaged in
street sales outside Los Angeles in the case of the IIerald , News,, and Examiner , and outside
Los Angeles and Glendale in the case of the Times
STOCKHOLDERS PUBLISHING COMPANY, INC. 1027
approximate current number of newsboys employed by each of these
Companies :
\Herald ------------------------------------ ------- -1219
News---------------
-------- ------------------------ ------
"110
Times---------------- ------ 48(27
The Examiner furnished n) comparable list; however, Arthur J.
Hampson, Examiner P. M. street sales manager, testified that ap-
proximately 500 44 newsboys handle the Examiner in territory covered
by night district managers who operate under his supervision.
The Union presented figure:; which differ widely from those offered
by the Times and the Examiner. Pat' Commorre, union organizer
and Roy Eley, chairman of the Union's Labor Board Committee,
testified that,they conducted a personal check to ascertain the num-
ber of newsboys within the appropriate units. According to the
testimony of Commorre or Eley, they found approximately 210 4'
full-tine Herald newsboys ireluding approximately 110 checkmen;
approximately 114 full-time News newsboys '41 approximately 292
full-time, Times newsboys, and approximately 339 full-time
Examiner newsboys.48
At the hearing the Trial Examiner made statements concerning
the claim of representation made by the Union. These statements
reveal that the names of at least 121, 66, and 76 newsboys, Herald,
News, and Times, respectively, found on the lists mentioned above,
appear on signed authorization cards bearing dates between February
28, 1940, and June 19, 1940.4° The Union tendered 222 authorization
cards purporting to be signed by Examiner newsboys. Since that
Company furnished no list of its newsboys, the Trial Examiner made
.no statement concerning the claim of representation made by the
Union with respect to the Examiner newsboys. Under these circum-
stances, we find that the questions of representation which have
41 This number includes full-time newsboys and checkmen The record does not disclose
Ni bother it includes temporary newsboy s
"This number refers to checkmen aid does not include ordinary ne«sboys The News
did not furnish a list of full-time newsboys
47 This number includes temporaiy i.nd part-time newsboys and newsboys engaged in
street sales in suburbs outside Los Angi les and Glendale, California
44 This number refeis to those Examiner newsboys in the unit we have found to be
appropriate.
q5 The recoi d does not disclose whither this number includes or excludes temporary
newsboys.
"The record does not disclose whether this number includes or excludes temporary
newsboys.
49 This number includes an unstated number of temporary newsboys.
48 This number includes an unstated number of temporary newsboys
-The Companies' objected to the is troduction of the Trial Examiner's statements on
various grounds. They were received, however, as part of the Board's investigation of
the substantiality of the Union's claim'and'not as a basis for certification upon the record
413597-42-vol, 28-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arisen can best, be resolved in - elections by secret ballot. We-shall-
accordingly direct that such elections be held. All newsboys in the
appropriate units employed by any of the Companies on the date of
the Direction of Elections herein, including newsboys who did not
work on said date because they were ill or on vacation, and newsboys
who were then or shall have since been temporarily laid off, but
excluding those who shall have since quit or been discharged for
cause, shall be eligible to vote. Newsboys employed by two or more
of the Companies within appropriate units shall be entitled to vote
in two or more elections as the case may be.
Upon the basis of the above findings of fact and upon the entire
record in the cases, the Board makes the following :
CONCLUSIONS OF LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of the Companies within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the rational Labor
Relations Act.
2. The following employees of Stockholders Publishing Company,
Inc., Hearst Publications, Incorporated (Los Angeles Evening Herald
& Express Department), The Tutees-Mirror Company, and Hearst
Publications, Incorporated (Los Angeles Examiner Department), all
of Los Angeles, California, constitute units appropriate for the pur-
poses of collective':bargaining within the meaning of Section 9 (b)
of the National Labor Relations Act: (a) all full-time newsboys and
checkmen who are engaged to sell the News within Los Angeles,
California, excluding bootjackers, temporary, casual, and part-time
newsboys; (b) all full-time newsboys and checkmen who are engaged
to sell the Herald within Los Angeles, California, excluding boot-
jackers, temporary, casual, and part-time newsboys; (c) all newsboys
engaged in -the street sale of the Times-'at established spots 4 or more
hours i day, 5 or more days a week, within Los Angeles and Glen-
dale, California, except temporary newsboys; and (d) all newsboys,
engaged in the street sale 'of the Examiner at established spots 4 or
more hours. a day, 5 or more days a week, within Los Angeles,
California, except temporary newsboys.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8,' of
National Labor Relations 'Board Rules and Regulations-Series 2,
as amended, it is hereby
STOCKHOLDERS PUBLISHING COMPANY, INC. 1029
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining,
elections by secret ballot shall be conducted as early as possible but,
not later than thirty (30) days from the date of this Direction of
Elections, under the direction and supervision of the Regional Di-
rector for the Twenty-first Region, acting in this matter as agent for
the National Labor Relations Board and subject to Article III, Sec-
tion 9, of said Rules and Regulations, among the employees of the
Companies within the groups described below who were employed- by
any of the Companies on the date of this Direction of Elections, in-
cluding employees who did not work on said date because they were
ill or on vacation, and employees who were then or shall have since
been temporarily laid off, and excluding employees who shall have
since quit or been discharged for cause :
(a) All full-time newsboys and checkmen who are engaged to sell
the News within Los Angeles, California, excluding bootjaekers,
temporary, casual, and part-time newsboys;
(b) All full-time newsboys and checkmen who are engaged to sell
the,-Herald within Los Angeles, California, excluding btlotjackers,
temporary, casual, and part-time newsboys;
(c) All newsboys engaged in the street sale of the Times at es-
tablished spots 4 or more hours a day, 5 or more days a week, within
Los Angeles and Glendale, California, except temporary newsboys;
and-
(d) All newsboys-engaged in the street sale of the Examiner at
established spots 4 or more hours a day, 5 or more' days a week,
within Los Angeles, California, except temporary newsboys; to deter-
mine whether or not said employees desire to be represented by Los
Angeles Newsboys Local Industrial Union No. 75, C. I. 0., for the
purposes of collective bargaining.
q