The Herald StarDownload PDFNational Labor Relations Board - Board DecisionsDec 22, 1976227 N.L.R.B. 505 (N.L.R.B. 1976) Copy Citation HERALD STAR, CANTON DIVISION 505 The Herald Star, Canton Division , Thomson Newspa- pers, Inc.' and The Newspaper Guild, AFL-CIO- CLC, Petitioner. Case 8-RC-10010 December 22, 1976 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held on various dates from August 15 through 20, 1975, before Hearing Officer Lawrence E. Kandrach, and on various dates from October 9 through November 14, 1975,2 before Hearing Officer William M. Kohner. Following the hearing and pursuant to Section 102.67 of the . National Labor Relations Board Rules and Regulations and Statements of Procedures, Series 8, as amended, and by direction of the Regional Director for Region 8, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer and Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds no prejudicial error was committed. The rulings are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. Thomson Newspapers, Inc., is incorporated in the State of Delaware. The Herald Star, Canton Division, Thomson Newspapers, Inc., with its princi- pal office and place of business in Steubenville, Ohio, is engaged in the publication of daily and Sunday newspapers. Annually, during the course and con- duct of its operation, the Herald- Star derives gross revenues in excess of $200;000 and receives goods valued in excess of $50,000 directly from points located outside of the State of Ohio. As the record shows, and the parties have stipulated, that the Employer is engaged in commerce within the mean- ing of the Act; we fmd that the Employer is engaged in commerce within .the meaning of the Act, and that it will. effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of nonmechanical employees consisting of all advertising employees including classified advertising employees, retail-na- tional advertising employees and dispatch clerks, business office clerical employees, and circulation employees, including inside clerks, outside district managers, drivers, mailroom, employees, editorial employees, including reporters, writers, and copy desk personnel, maintenance employees, and proof- readers. The unit sought consists of approximately 108 employees. The Employer takes the position that- certain classifications of employees should be exclud- ed from the unit. The Employer contends that the drivers are independent - contractors; the inserters working in the mailroom are casual employees; and the mailroom employees and proofreaders do not share a community of interest with the other employ- ees sought by Petitioner or with one another. The Employer further contends, contrary to the Petition- er, that the following individuals are supervisors within the meaning of Section 2(11)-of the Act: city editor, Louis Blay; district editor, John Kirker; sports editor, John Phillips; Sunday editor, Timothy Puet; society editor, Ann Kennedy; accountant, Alice Muir; circulation clerk supervisor, Alysue Kemple; and mailroom supervisor, Carol Reed. The Employer also states that, in the event the Board - finds the drivers to be employees, it desires the Board to determine whether the district managers are supervi- sors. Finally, the Employer contends that the afore- mentioned editors, plus the wire editor and the reporters, are professional employees within the meaning of Section 2(12) of the Act. The Employer publishes and distributes in Steuben- ville, Ohio, and outlying communities, daily and Sunday editions of a newspaper known as the Herald Star. Its operations are under the general control of Dean Probert, publisher and general manager. The editorial and news department is run by William McCarty, managing editor, and the circulation man- ager is David Miller. The other stipulated supervisors are Charles Govery, retail display and national advertising manager, and Robert Hammond, classi- fied advertising manager . The parties stipulated that there is a contract in effect between the Employer and the Steubenville Printing Pressmen and Assistants Union, No. 374, covering all pressmen in the press- room. The parties also stipulated that there is a contract in effect between the Employer and the Steubenville Typographical Union, No. 238, covering all journeymen and apprentice printers and composl- ters. 1 , The Employer's,name appears as amended at the hearing. 2' At the request of the Employer, the hearing was reopened to permit 227 NLRB No. 82 introduction of evidence on the issue of the professional status of reporters and editors. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Drivers The drivers, who the Employer contends are independent contractors, pick up the newspapers at the Employer's loading dock and deliver the newspa- pers to carriers, news dealers, or directly to subscrib- ers, utilizing tubes which are supplied by the Employer and installed at the subscribers' homes. The drivers have geographically defined districts to service. The Employer utilizes three classifications of drivers, all of whom operate their own trucks to perform the required duties. There are approximately three contract haulers who deliver newspapers to carriers and dealers. The contract haulers are paid a flat rate which is determined by the Employer. The Employer determines the number of newspapers to be delivered by each contract hauler as well as the dropoff points. The carriers and dealers receiving newspapers from the contract haulers are billed directly by the Employer. The Employer utilizes approximately four motor route operators who operate in the same manner as the contract haulers, but additionally purchase news- papers from the Employer at a wholesale rate fixed by the Employer and deliver those newspapers directly to tube customers at the retail rate listed in the newspaper. The motor route operators are responsi- ble for collecting from their tube customers. In addition to the flat rate paid the motor route operators for newspapers delivered to carriers and dealers, and the money they make by selling papers directly to subscribers, the Employer also gives them an allowance, which is determined solely by the Employer. There are approximately 18 or 19 drivers classified as distributors. The Employer advertises in the newspaper for distributors, and an applicant is required to fill out an application which, inter alia, asks about the applicant's previous experience on a route and the make, year, and condition of the vehicle to be used. The applicants are interviewed by the circulation manager or a district manager. Once the new distributor is approved, a district manager will show him the route. However, the distributor is free to determine the order in which he will deliver or drop off the newspapers. The Employer establishes a pickup schedule for the distributors, and, although the distributor is not required to pick up the newspa- pers at the scheduled time, failure to appear at the designated time could result in a delay. Moreover, the 3 The Employer bills the distributors , and it appears that the payments made by the distributors are not always timely i The Employer contends that the distributors are free to negotiate the puce they charge to their customers However , the Employer informs the carriers what rate they should pay the distributor . In addition , the newspaper lists the price that a subscriber is charged . There is no evidence that the distributors vary from the recommended retail rates , except that one Employer "suggests" that the Sunday paper reach the customer by 9 a.m. The distributor makes his deliveries by using his own vehicle, which carries no marks identifying it with the Employer. The Employ- er does not prohibit the drivers from engaging in other ventures for profit. The distributor pays for the newspaper at a wholesale rate set by the Employer,3 and sells the papers to dealers, carriers, and tube subscribers according to the Employer's respective recommended rates for resale to the various classifications.4 The distributor is responsible for billing and collecting from the dealers, carriers, and subscribers he services. The Employer does not withhold taxes or social security and provides no fringe benefits to the distributors. However, the Employer pays the distrib- utor an allowance, the amount of which is determined by the Employer. Circulation Manager Miller testi- fied that the allowance is for performing the service of delivering the newspaper for the Employer. A distrib- utor testified that the allowance amounted to more than the profit realized from the resale of the newspapers. The relationship between the Employer and the distributor is terminable by either party, and the Employer requests that the distributors provide 2 weeks' notice. One distributor was terminated be- cause she failed to make deliveries I day and refused the Employer's offer of assistance. Circulation Man- ager Miller testified that a distributor can refuse to deliver a newspaper to a subscriber. However, two distributors testified that the Employer requires them to keep certain unprofitable customers on their routes. Distributors are required to submit annually a complete route sheet, containing all subscribers. Customer complaints are called in to the Employer and the distributor is informed of the complaint. The Employer encourages distributors to adjust com- plaints and suggests ways to alleviate the problems. When a carrier on a distributor's route quits, the distributor is responsible for securing a replacement.5 If distributors have difficulty obtaining carriers, the Employer will assist them and advertises in the newspaper for carriers, without charge to the distribu- tors. It appears that the distributors submit a change- of-carrier form to the Employer when a new carrier is engaged. The Employer informs distributors of the minimum age requirements for carriers and requires distributors to give carriers company handouts. distributor, pursuant to a longstanding arrangement , charges a slightly lower price to the Ohio Valley News, which in turn handles the distribution of the paper in Mingo Junction 5 The distributor may also terminate a carrier . It is noted that carriers on the routes of contract haulers and motor route operators are procured directly by the Employer, and the driver has no responsibility in that area HERALD STAR, CANTON DMSION 507 In determining the status of persons alleged to be independent contractors, the Board applies-a "right of control" test,6 which turns essentially on whether the person for whom the services are performed retains the right to control the manner and means by which the results are to be accomplished, or whether he controls only the results. In the latter situation, the status is that of independent contractor. The resolu- tion of this question depends on the facts in each case and no one factor is determinative. Here, as seems typical in cases of this kind, there are present factors supporting the position taken by both parties with respect to the drivers' status. In the instant case we are satisfied that .all the drivers are employees of the Employer. We are mindful that the evidence, particularly with respect to the distributors, discloses several factors usually present in independent contractor relationships. However, these factors are not peculiar to such status and are not uncommon in employment relationships. Thus, we are not persuaded by and do not regard as controlling the facts that the drivers own and maintain their own vehicles; the Employer does not grant them fringe benefits or make payroll deduc- tions; the drivers basically set their own working hours within certain limitations and generally deter- mine the manner - and means of delivery; and the drivers can hire people to help them out or to substitute for them. The above factors are, in our view, outweighed by the evidence demonstrating employee status. The result to be accomplished, of course, is the circulation and sale of the Employer's newspaper. In accomplish- ing this result, the-driver bears slight resemblance to the independent businessman whose earnings are controlled by self-determined policies, personal in- vestment and expenditure, and market conditions. Here, the distributor must purchase his newspapers at a cost established by the Employer and sell them at a price in effect set by the Employer. In addition, the subsidies paid to the distributors by the Employer greatly reduce the distributors' risk of loss as well as their capacity to increase earnings. The fact that the Employer exercises control over the composition of the route, often assists drivers with their deliveries, and can terminate drivers virtually at will are clear indications of an employment relationship. Further- more, the driver has no proprietary interest in his route, and,, if, he relinquishes his route, he does so without compensation. On these facts, and the record as a whole, we cannot accept the Employer's contention that its control is limited to the end to be achieved. We find 6 Eureka Newspapers, Inc, 154 NLRB 1181 (1965); The Sacamento Union, Inc., 160 NLRB 1515 (1966), Beacon Journal Publishing Company, 188 NLRB 218 (1971). that the drivers' opportunities for profits, as well as his employment conditions generally, are limited and circumscribed by the Employer's regulation and control of important aspects of the drivers' work. As the Employer has to a large extent reserved the right to control the manner and means, in addition to the result of the drivers' work, we conclude that the drivers classified as contract haulers, motor route operators, and distributors are not independent contractors, but employees within the meaning of the Act.7 The Petitioner would include in the unit the three district managers who are responsible for overseeing certain geographical districts, which include the territories of distributors, motor route operators, and contract haulers. The district managers interview applicants for the driver position and show new drivers the routes. The- record reveals that the Employer deals directly with some dealers and carriers,- and the district managers have the responsi- bility for engaging carriers and taking them off routes. They also assign mailroom employees the task of delivering papers when necessary. In the absence of the circulation manager, the district managers are basically in charge of the plant and have authority to assign work and discipline employees. In view of the foregoing, we find that the three district managers are supervisors within the meaning of the Act and we shall exclude them from the unit. The Mailroom Employees The Employer seeks to exclude the mailroom employees from the appropriate unit, contending that they have no community of interest with the remain- ing unit employees. There are approximately 9 or 10 part-time employees employed in the mailroom,8 who manually sort and bundle the newspapers as they come off the presses; and who work an average of 15 to 25 hours per week. The mailroom is located at one end of the building near the inside of the loading dock area. It is also adjacent to the reelroom, the pressroom, and the circulation department, and there is a wall between those departments. The mailroom is under the general supervision of the circulation manager and ` several mailroom employees answer phones in the circulation department, deliver newspa- pers, contact carriers, and collect from carriers. In addition; mailroom employees occasionally perform work on the loading dock. In view of the foregoing, we shall include the mailroom employees in the unit sought by the Petitioner. This is - in accord with longstanding precedent where the Board has held a Beacon Journal Publishing Co, supra. 8 No full-time employees are employed m the mailroom. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, in the newspaper industry, the optimum unit of nonmechanical employees is one which includes all such employees.9 The Inserters The Employer contends that approximately 15 inserters who work in the mailroom are casual employees and should not be included in the unit. The inserters stuff preprints into the newspapers as they pass through the mailroom on conveyors. Circulation Manager Miller testified they work from 2 to 4 days a week, but they are not required to report for work. There exists a pool of about 15 people and the schedule for inserting is posted by the Employer. Miller testified that if an inserter plans not to show up for the next scheduled insert, he is required to sign a sheet next to the schedule. Normally, about 12-14 inserters show up for each insert. Most of the inserters have been working for over 2 years and they are paid the same hourly rate as the mailroom employees. In addition, inserters may be assigned other duties in the circulation department or the accounting depart- ment. Furthermore, inserters may be assisted by regular mailroom employees. Based on the foregoing, we are convinced that the inserters are not casual employees, but are regular part-time employees.10 Accordingly, we shall include them in the appropriate unit. Proofreaders There are two full-time and two or three part-time proofreaders whose sole function is to read copy from the presses and return it for corrections. The Employ- er would exclude them from the petitioned-for unit, contending that they have no community of interest with the unit employees, but rather that they have a community of interest with the composing room employees, who are represented by the Steubenville Typographical Union, No. 238. In support of its position, the Employer notes that the proofreaders are located adjacent to the composing room and are supervised by the composing room foreman, with whom they have regular contact. On the other hand, the proofreaders are physically located in the editori- al department, reporters assist them in reading proof, they have daily contact with editorial department employees, and their wages are considerably lower than the composing room employees. 9 Garden Island Publishing Co, Lid, 154 NLRB 697 (1965). 1. R W Page Corporation, 216 NLRB 944 (1975) 11 The Employer does not contend that Samuel Rogers, the wire editor, is a supervisor 12 We note at the outset that the contention that journalists are professional employees within the meaning of the Act has been fully litigated and rejected by the Board in The Express News Corporation, 223 NLRB 627 (1976) We find nothing in the briefs or in the record in the instant case that In our view, the record indicates that the proofread- ers share a community of interest with employees in the unit petitioned for, and we shall include them in the nonmechanical unit. In so finding, we take cognizance of the fact that the Steubenville Typo- graphical Union, No. 238, has expressed no interest in representing the proofreaders. The News and Editorial Department This department is under the direction of Managing Editor William McCarty, who the parties have stipulated is a supervisor. Under McCarty's direction are six editors, approximately seven full-time report- ers, one clerk, one photographer, and two part-time employees. The Employer contends that five of the editors are supervisors" and that all editors and reporters are professional employees within the meaning of Section 2(12) of the Act.12 The Petitioner disagrees with these contentions and maintains that all of the employees in the news and editorial department, with the exception of Managing Editor McCarty, should be included in the unit. Before we consider the supervisory status of the individual editors, some general observations with respect to the operation of the news and editorial department seem warranted. Managing Editor McCarty testified that he schedules the hours of work for all employees in the department and assigns work to reporters on a daily basis. The editors have no authority to hire, fire, or discipline, or to authorize overtime. In addition, the editors receive the same fringe benefits as all full-time employees. The record indicates that McCarty is solely responsible for the editorial policy of the newspaper, and he also determines what the lead stories on the first page of the newspaper will be.13 With these general consider- ations in mind, we shall consider the facts concerning the alleged supervisory status of the various editors. City Editor Louis Blay has been the city editor since approxi- mately 1947 or 1948. He has the authority to assign reporters to certain stories. Blay is given copy from several reporters and it is his responsibility to assess that copy in the areas of conciseness, accuracy, and content. If a story is too long, he may cut it down. If he receives a story that he does not consider com- would lead us to a different conclusion . In view of the foregoing, we deny Petitioner's motion to reopen the record for the purpose of permitting the submission of additional evidence relating to the professional issue 13 No contention is made that the editors in issue are managerial employees , and as the record indicates that they do not participate in determining the editorial policy of the newspaper , we shall not exclude them on that basis Sunday Editor Puet , however, has interests closely related to management. His status is discussed infra. HERALD STAR, CANTON DIVISION 509 plete, he may rewrite it or return it to the reporter for revision. Blay and Wire Editor Rogers are responsible for the placement of stories other than the lead stories in the newspaper. Blay is in charge of the news and editorial department-whenever McCarty is not in the office, and it appears that this occurs on a regular basis. When Blay is in charge, he performs those duties normally performed by McCarty. On one occasion Btay.informed McCarty that two new reporters were unsatisfactory. McCarty investi- gated their work_and spoke with them. About 2 weeks later, Blay again requested their termination, and McCarty discharged their without further investiga- tion. -Based on the evidence-, of Blay's authority to responsibly direct the work of his subordinates, his effective recommendation with respect to discharge, and his periodic substitution for the managing editor, we conclude that thecity editor is a supervisor and must be excluded from the unit. District Editor John Kirker is'the district editor and is basically responsible for the local news coming from outside Jefferson County. Kirker receives and edits copy from reporters Matz Malone and Lori Jones, who have regular beats, and from various members of the community who witness events and relay the infor- mation to the newspaper. Kirker has authority to direct-reporters as to how a story should be covered, and edits the copy by checking the story for com- pleteness, accuracy, and conciseness. If the story meets his approval, -he will write a headline, deter- mine whether the' story merits a byline, and give the story to the city editor. If the story does not meet with Kirker's approval, he may modify or rewrite the story. There is no evidence that Kirker returns stories yto reporters for rewrites. He may decide that a story is not newsworthy or that a story deserves a certain pace. -He may also suggest to the cityamount of space.-,- editor or the wire editor that a story should go on page one or the section page. Kirker did not testify. However, reporter Malone testified that Kirker advises him as to the style of the newspaper but that his assignments come from Managing Editor McCarty, and that McCarty must authorize any overtime that he works. Based on the record, we find that the district editor does not possess any of the indicia of supervisory authority. It is-clear that Kirker's prima- ryduty is to check the quality of the copy submitted to him and to correct and rewrite stories if necessary. The Board has long. held that such authority does not make him -a supervisor within the meaning of the Act,14 and we shall therefore include him in the unit. - Sports Editor. John Phillips, the sports editor, edits local sports copy written by reporters and wire copy for accuracy, completeness, ' and, conciseness. He writes the head- lines -for all sports copy and lays out the sports pages, determining which stories will appear, what page they will appear on, what positions they will be in on the page, and what size headline will 'be used. ' He also writes local copy and writes his own sports column which appears twice weekly. Only Phillips works exclusively on sports -stories, although McCarty assigns reporter Charles Powell to cover sports- on the basis of need. Several other -reporters and Sunday Editor Puet volunteer,to cover sports stories, but McCarty's approval isnecessary if Phillips assigns somebody who didn't volunteer. -McCarty testified that Phillips hires, individuals who work part -time,.in the sports department, but qualified his testimony by adding that he did not know of an instance-where a part-time person had been hired n the sports department without first being interviewed by him. However, McCarty added that at, the time of the hearing, Phillips was in the process of hiring a regular part-time employee, and that McCarty did not intend to interview,that person. In view of the ambiguous testimony with respect to Sports Editor Phillips' role in the hiring process, we are unable to determine his status. We shall,, there- fore, permit him to vote under challenge. Society Editor Society Editor Ann Kennedy is responsible for gathering and producing news for the women's pages. She is also responsible for editing what appears in those pages, putting headlines on that news, and deciding placement of stories in the women's pages. She receives material by phone or in the mail from correspondents; or strangers. She also receives-from reporters at the newspaper feature story copy for the first page of the women's section of the Sunday paper. Kennedy was hired by the Employer as a clerk assistant to the then society editor. In June 1974, the society editor resigned and Kennedy was given the job. Kennedy is the only reporter of society news and she is assisted by a clerk, Carol Wentz. Wentz spends about 55 to 60 percent of her time on society matters, and generally writes engagement and wedding an- nouncements and club meeting stories prepared from information submitted to the newspaper on a stan- 14 The Peoria Journal Star, Inc., 117 NLRB 708 (1957). 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dard format. Wentz prepares these stories essentially without any direction, from Kennedy. Wentz also spends a large part of her time writing obituaries. On weekends and when Kennedy is on vacation, Wentz does the work usually performed by Kennedy, including writing of stories, laying out of the paper, and editing. -In view of the above, we conclude that there is no evidence" that Kennedy possesses or exercises any indicia of supervisory 'authority or is in any-sense charged with. the responsible direction of employees. We shall therefore include her in the unit. Sunday Editor Timothy Puet spends, about 65 to 70 percent of his time as Sunday editor. He also volunteers to cover sports stories and substitutes for Wire Editor Ro- gers.15"Puet's responsibility for ' the° Sunday -paper includes editing and writing Headlines for ,all local copy which 'goes' into the paper., He also decides where to place the stories and what pictures should accompany the stories. Puet also determines which wire copy and pictures will go into the Sunday paper. Although- no reporters are regularly assigned to work on the Sunday paper, Puet assigns reporters to cover stories for the Sunday paper and his assignments are based on the competencyof the reporter rather than availability. In addition Puet has the authority to place a feature story in the Sunday paper in the place where he thinks it belongs. Under all the circumstances, we find that Puet's interests by reason of his managerial functions are different from the interests of the other employees in the unit. Accordingly, we shall-exclude him from the unit.16 Part-Time Employees At the hearing, the Employer took the position that Jeff Bodo, who works on a part-time basis performing photography work and operating the "scan-o-grav- er," and Robert Kloska, who is employed on a part- time basis as a reporter, should not be eligible to vote. The record indicates that Bodo and Kloska are employed on a regular part-time basis and share a community of interest with the other newsroom personnel. Accordingly, we shall include them in the unit. The parties stipulated that since the close of the initial hearing on August 20, 1975, the Employer has opened a bureau in Cadiz, Ohio, where it employs one clerk, and in the future may employ one reporter. 15 The Employer does not contend that Wire Editor Samuel Rogers is a supervisor. Rogers is responsible for editing and placing headlines on Associated Press wire copy appearing in the newspaper . He is responsible for selecting the wire stones and for laying out and dummying the wire news The parties stipulated that the employee or employ- ees of the Cadiz bureau should be included in the unit found to be appropriate-on the same basis as similarly situated employees in the Employer's Steubenville, Ohio, office. Accordingly,, we include the employee complement at the Cadiz, Ohio, bureau in the unit. Other Supervisory - Issues Alice,,Muir, Accountant: The Employer contends that Muir is-a- supervisor.-There are five employees in the accounting department and most, of her- time is spent doing accounting work. 'Me record reveals that she has authority to hire and-fire and has exercised that authority.-She assigns all work in the accounting department, recommends employees for increases, grants time off, and arranges days off. Accordingly, we find that she is a supervisor and she is excluded from the unit. Alysue Kemple: Alysue Kemple, who the Employer contends is a supervisor, is classified as a clerk supervisor in the circulation department: There are two other clerks in the department. She spends about 95 percent of her time performing clerical work, and she has no authority to hire, fire, or discipline. However, the, two clerks were informed by Circula- tion Manager Miller that Kemple was the supervisor, she is paid approximately 20 percent more than the other clerks, and she assigns work to the-clerks based on her determination of which clerk is more capable of performing the work. She also directs the clerks in the performance of their work and has reprimanded them. Finally, she has authority to grant, time off and she has exercised that--authority. Accordingly, since Kemple exercises certain indicia of supervisory authority, we conclude that she is a supervisor and must be excluded. - Carol Reed: The Employer takes the position that Reed should be excluded as a supervisor of the mailroom employees. The record reveals that the employees were told that Reed was a supervisor; that she assigns work, has reprimanded employees, and may grant time off; and, unlike other mailroom employees, she receives a paid vacation. However, it is clear that Reed, who is employed on a part-time basis and performs,tasks done by other employees, has no authority to hire, fire, discipline, or promote, and does not adjust' grievances. Although she may grant time off, she may not grant days off. It also appears that she makes assignments on an infrequent basis and that the assignments originate with Circula- tion Manager Miller, who schedules the hours for the mailroom employees. On these facts, we find that stories in the paper, except for deciding which stones will appear at the top of the first page and the section page . That decision is made by McCarty 16 The Peona Journal Star, Inc., supra at 711 - HERALD STAR, CANTON DIVISION Reed acts as a conduit for the orders from Miller. We conclude- that she is not a supervisor and we shall include her in the unit. We find the following unit appropriate for collec- tive bargaining: All advertising employees including classified advertising `employees, retail-national advertising employees and dispatch clerks, and business office clericako employees and circulation employees, including inside clerks, drivers, and mailroom employees, and editorial employees, including reporters, writers, and copy desk personnel, main- tenance employees, and proofreaders, but exclud- ing all, confidential employees, managerial em- ployees, guards and supervisors as defined in the Act. [Direction of Election omitted from publication.] 17 MEMBER PENELLO, dissenting in part: I disagree with the- position of the majority that the 18 or 19 drivers classified as distributors are employ- ees within -the meaning of the Act. In my view, by failing to fmd these individuals to ` be independent contractors, my colleagues have incorrectly read the record facts and have ignored-indeed, in effect, have reversed without saying so-recent Board precedent involving Board panels in which they were not participants.18 The record reveals that each distributor arranges with the Herald Star to deliver newspapers within a specified geographical territory. The Newspaper does not withhold income or social security taxes, pay workmen's compensation or unemployment insur- ance, or provide fringe benefits to the distributors. The distributors are not required to attend meetings or make reports, are responsible for supplying their own substitutes in case of absences, and must furnish and maintain delivery vehicles which have no visible identification with the Herald Star. The Newspaper has established a pickup schedule to provide for orderly and efficient loading in the limited dock area. However, aside from the pickup time, distributors are free to arrange deliveries at their own convenience and in their own fashion.19 No restrictions have been placed on the distributor's rights to engage in other ventures for profit. The distributors purchase the newspapers from the Herald Star at a wholesale rate and then resell the papers to dealers and carriers at a discounted rate, or to individual subscribers at a retail rate. The Newspa- per does recommend a rate of resale for the various 17 Excelsior footnote omitted from publication. 18 Las Vegas Sun, Inc., 219 NLRB 889 (1975) (Chairman Murphy and Members Kennedy and Penello); Donrey, Inc, dlbla Las Vegas Review- Journal, 223 NLRB 744 (1976) (Chairman Murphy and Members Penello and Walther)-both cases involved home delivery dealers 511 types of classifications to whom the distributors sell the papers, but the Herald Star specifically permits the distributors to negotiate their own rates of resale to their various customer-s-.-20 The mode of delivery, i.e., through dealers, carriers, or self-delivery, is decided entirely by the-distributor. Responsibility -for billing-and collecting from customers and for any loss from the failure of a subscriber or carrier to pay a bill is borne entirely by the distributor. In a similar fashion, if papers are lost, damaged, or stolen during delivery, the loss is absorbed entirely by the distribu- tor. Further, since the distributor is liable for dam- aged papers, -the responsibility of purchasing protec- tive materials and the decision to use such materials during inclement- weather rest - entirely with the distributor. If the distributor-overordersand is unable to sell, all the purchased papers, the distributor, not the Newspaper, is liable for the overage. Although thee . distributors are assigned _a specific geographical area , they - are free to solicit new subscribers within or without the territory. Thus, the ultimate size of the route depends on the particular distributor''s initiative. As heretofore mentioned, the distributors are free to determine the mode of delivery, and therefore unilaterally hire and fire their carriers and negotiate on their own the arrangements with their dealers. Although on occasion the Newspa- per forwards customer complaints, the distributors are entirely responsible for answering and remedying those complaints. Two or three times a year the Newspaper requests the distributors to turn in lists of all new subscribers, but the Herald Star does not enforce these requests for the updated lists. The distributors, therefore, are the only individuals who have access to a complete updated list of the specific subscribers and dealers in their territories. Uncon- tradicted evidence establishes that distributors may transfer or sell their subscriptions lists to third parties and the Newspaper's only concern is whether the particular third party represents a credit risk. In my view, the factors involving profit-and-loss opportunities here require a finding of independent contractor status. The distributor determines how many papers he will purchase. If any of those papers are unsold, lost, or damaged the distributor must bear the loss incurred. Further, the distributor bears the responsibility for the collection of bills and absorbs any loss resulting from the failure to pay by a subscriber or carrier. Regarding earning potential, the distributor can eliminate the middleman-the carrier-and deliver the 19 Of course, the paper must be delivered within the general parameters of a "timely delivery." 20 At least one distributor has established a lower rate of resale to one dealer. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD papers himself, thereby increasing his profit, -and/or he can solicit new subscribers and dealers to increase the size of his route. Thus, it is clear that a distributor's income is based on the difference between the wholesale cost of the paper purchased (plus the cost of labor, supplies, and losses) and the ultimate sale price and numbers of papers sold. Also evident is - the fact that it is the distributor, and not the Newspaper, who makes the essential business decisions involved in the distribu- torship. A careful review of the facts herein convinces me that the distributors are not "employees" within the meaning of the-Act, but are independent contractors who, in performing their tasks, control the manner and means of their own performance. Thus, outside of a pickup schedule and a general delivery time, the 21 Two other types of drivers employed by the Herald Star are, classified as contract haulers and motor route operators . The contract haulers are paid a flat rate determined by the Newspaper to deliver papers to carriers and dealers. The Newspaper deternunes the number of papers and the drop off points. The carriers and dealers receiving pa ers from the contract haulers are billed directly by the Herald Star The contract haulers exert no substantial influence over their own profit and loss, nor do'they control the method -or means of their performance. I agree with the majority that the contract haulers are employees. Herald Star exerts no control over the method and means of the newspaper delivery which is under the distributor's sole control. The distributor attends no meetings, files no reports, and is responsible for remedying any subscriber complaints. The distributor unilaterally determines how many carriers and deal- ers can be successfully managed and how many papers the distributor can deliver. . In sum, the very most that can be said, about the relationship in this case is that the Newspaper's control is reserved only as to the result sought. But, the distributor exclusively controls the means to be used in achieving such result, thus requiring the conclusion that the distributors ate independent contractors. Accordingly, Iwould dismiss the petition as to them.21 The motor route operators function in the same manner and on the same basis as the contract haulers, but also purchase a number of papers at a wholesale rate, as do the. distributors , and then deliver those papers directly to subscribers at a retail rate . Since the motor route operators ' functions are principally those of the contract haulers and are remotely those of the distributors, I agree with , my colleagues and find them to be employees within the meaning of the Act. Copy with citationCopy as parenthetical citation