The News-Journal Co.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 158 (N.L.R.B. 1970)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The News-Journal Company and Newspaper Guild
of Greater Philadelphia , Local 10 , AFL-CIO. Case
4-CA-5212
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
Upon a charge filed by Newspaper Guild of Greater
Philadelphia, Local 10, AFL-CIO, herein called the
Union, the General Counsel for the National Labor
Relations Board, by the Regional Director for Region
4, issued a complaint and notice of hearing dated
April 24, 1970, against The News-Journal Company,
herein called Respondent, alleging that Respondent
had engaged in and was engaging in certain unfair
labor practices within the meaning of Sections 8(a)(5)
and (1) and 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing were duly served
upon Respondent and the Union.
The complaint alleges in substance that on February
26, 1970, the Union was duly certified in Case 4-
RC-8171 (not published in NLRB volumes) as the
exclusive collective-bargaining representative of
Respondent's employees in the unit found appropriate
by the Board in its Decision and Direction of Election
dated January 21, 1970 (180 NLRB No. 137), and
that since on or about March 10, 1970, Respondent
has refused, and is refusing, to recognize and bargain
with the Union as such exclusive bargaining represent-
ative, although the Union has requested it to do
so.
On May 13, 1970, Respondent filed its answer,
admitting that it had been served with the charge
herein; its volume of business meets the Board's juris-
dictional standards; it engages in commerce within
the meaning of the Act; the Union is a labor organiza-
tion within the meaning of the Act; the Union was
chosen by a majority of the employees in the unit
found appropriate to be their exclusive collective-
bargaining representative; the Union was certified by
the Board thereafter; and Respondent has refused
to bargain with the Union. Respondent denied, howev-
er, the remaining parts of the complaint which alleged
that the Union was the representative of an appropriate
unit of Respondent's newspaper deliverers and that
the Union has requested, and is requesting, Respond-
ent to bargain with the Union; Respondent contends
in its answer that the newspaper deliverers who com-
prise the appropriate unit are independent contractors,
not employees within the meaning of the Act, and
thus not entitled to representation.
On May 28, 1970, the General Counsel filed with
the Board a Motion for Summary Judgment.
On June 2, 1970, the Board issued an order transfer-
ring the proceeding to the Board and requesting
Respondent to show cause why the General Counsel's
Motion for Summary Judgment should not be granted.
On June 10, 1970, Respondent filed a Cross-Motion
for Summary Judgment requesting the Board to dis-
miss the complaint and set aside the election and
certification.'
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
Upon the entire record in this case, the Board
makes the following:
RULING ON THE MOTION FOR SUMMARY JUDGMENT
The record before us establishes that on February
27, 1969, the Union filed a petition in Case 4-RC-
8171, seeking to represent all newspaper deliverers
at Respondent's Wilmington, Delaware, location.
After a hearing, the Regional Director for Region
4 transferred the case to the Board for decision.
In its Decision and Direction of Election dated Janu-
ary 21, 1970, the Board found appropriate for collec-
tive bargaining the following unit of employees:
All newspaper deliverers employed in the circula-
tion department of the Employer's [Respondent]
Wilmington, Delaware, newspaper business,
excluding all other employees, and all supervisors
as defined in the Act. (180 NLRB No. 137)
On February 17, 1970, pursuant to the Decision
and Direction of Election, an election was held in
which a majority of the employees of Respondent
in the unit described above designated and selected
the Union as their representative for the purposes
of collective bargaining with Respondent. There were
no challenged ballots or objections to the conduct
of the election, and, on February 26, 1970, the Region-
al Director for Region 4 issued his Certification of
Representative.
Respondent thereafter admittedly refused to bargain
with the Union upon the latter's request, and the
instant refusal-to-bargain charge was filed on April
10, 1970.
In its statement in opposition to the General Coun-
sel's motion, and in support of its motion, Respondent
contends that the Union's certification in the underly-
Respondent's request for oral argument before the Board is hereby
denied as the record and briefs adequately present the issues and the
positions of the parties
185 NLRB No. 40
THE NEWS-JOURNAL COMPANY
ing representation proceeding is invalid because the
newspaper deliverers represented by the Union are
independent contractors, not employees within the
meaning of the Act, and, thus, not entitled to represen-
tation. It appears, however, that Respondent is
attempting to do no more than relitigate in the instant
proceeding issues which were previously decided by
the Board in the underlying representation case. It
is well established that, in the absence of newly discov-
ered or previously unavailable evidence, an employer
is not entitled to relitigate in an 8(a)(5) proceeding
issues which were, or could have been, raised in
the underlying representation proceeding. According-
ly, as no such evidence bearing on the status of
the newspaper deliverers has been presented, we find
without merit Respondent's claim that the election
conducted in the representation proceeding is invalid
because the unit was not comprised of "employees"
within the meaning of the Act.2
In its answer, Respondent contends that a recent
Ninth Circuit Court of Appeals decision, Carnation
Co. v. N.L.R.B., 429 F.2d 1130 (C.A. 9), in which
the court denied enforcement of our order that, inter
alia, invalidated certain individual agreements entered
into between Carnation and its wholesale and retail
dairy product deliverers because the deliverers were
then represented by a union and covered by a valid
collective-bargaining agreement, requires reversal of
our unit determination herein. In Carnation, we found
that because the deliverers were employees, not inde-
pendent contractors, and entitled to representation
by the union involved therein, Carnation could not
lawfully negotiate separate contracts with them. The
court disagreed with this finding and concluded that
since the deliverers were independent contractors,
Carnation did not violate the Act by dealing with
them individually.
In the underlying representation proceeding herein
we found that the newspaper deliverers were employ-
ees, not independent contractors, within the meaning
of the Act because, inter alia, the services rendered
consisted of the routine manual work of loading and
driving trucks over predetermined routes and dropping
off bundles of newspapers in a prearranged order
at designated drop spots; the drop spots are changed
without prior consultation with the deliverers; the
deliverers are closely supervised to insure proper and
timely delivery of the newspaper; and the opportunity
' The only new evidence which Respondent offered to present to
the Board involved the fact that several of the deliverers threatened
to sue Respondent to enforce their individual contractor status We
are of the opinion that this factor, when weighted against the other
factors which support a finding that the newspaper deliverers are not
independent contractors, is not sufficient to warrant reversal of our
prior unit determination
159
to realize any meaningful additional profit by cutting
costs or changing methods of operation appears to
be limited. The deliverers employed by Carnation,
however, set their own hours of work and sequence
of deliveries and, most importantly , can increase their
profit by enlarging the difference between their costs,
including the cost for Carnation dairy products, and
the price they charge their wholesale or retail custom-
ers.
While we do not necessarily agree with the court's
decision in Carnation, we find that it does not warrant
reversal of our unit determination herein because
Respondent clearly retains much greater control of
the manner and means of accomplishing the result
(newspaper delivery) than did Carnation, whose dis-
tributors were free to vary their methods of operation
or raise the price in order to increase profitability.
All material issues having been either decided by
the Board, admitted in the answer to the complaint,
or established by the uncontested documents attached
to the General Counsel's Motion for Summary Judg-
ment, there are no factual issues requiring a hearing
before a Trial Examiner. Accordingly, the General
Counsel's Motion for Summary Judgment is granted
and Respondent's Cross-Motion for Summary Judg-
ment is denied. On the basis of the record before
it, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, The News-Journal Company, is
engaged at Wilmington, Delaware, in the business
of publishing and distributing newspapers in and
around Wilmington, Delaware. During the past year,
Respondent had a dollar volume of sales from its
Wilmington facilities directly to customers, outside
the State of Delaware in excess of $50,000 and, pur-
chased materials from outside the State of Delaware
valued in excess of $50,000.
Respondent admits, and we find, that Respondent
is, and at all material times herein has been, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Newspaper Guild of Greater Philadelphia, Local
10, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
At all times material herein, the following employees
have constituted and now constitute a unit appropriate
for purposes of collective bargaining within the mean-
ing of the Act:
All newspaper deliverers employed in the circula-
tion department of the Employer's Wilmington,
Delaware, newspaper business, excluding all other
employees, and all supervisors as defined in the
Act.
2. The certification
On February 17, 1970, a majority of the employees
in said unit , voting in a secret-ballot election conducted
under the supervision of the Regional Director for
Region 4 of the National Labor Relations Board,
designated the Union as their representative for the
purposes of collective bargaining with Respondent,
and on February 26, 1970, the Regional Director
for Region 4 certified the Union as the exclusive
collective-bargaining representative of all the employ-
ees in said unit, and the Union continues to be
such representative.
B. The Request To Bargain and Respondent 's Refusal
On or about March 10, 1970, the Union requested
and continues to request that Respondent bargain
collectively with it as the exclusive collective-bargain-
ing representative of all the employees in the above-
described unit. Commencing on or about March 10,
1970, Respondent refused, and continues to refuse,
to bargain collectively with the Union as exclusive
bargaining representative of the employees in said
unit.
Accordingly, we find that the Union was duly
certified as the collective-bargaining representative of
the employees of Respondent in the appropriate unit
described above; that the Union at all times since
February 26, 1970, has been and now is the exclusive
bargaining representative of all the employees in the
aforesaid unit , within the meaning of Section 9(a)
of the Act; and that Respondent has since March
10, 1970, refused to bargain collectively with the
Union as the exclusive bargaining representative of
its employees in the appropriate unit. By such refusal,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The acts of Respondent set forth in section III,
above, occurring in connection with the operations
as 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.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, we shall order that it
cease and desist therefrom , and, upon request , bargain
collectively with the Union as the exclusive representa-
tive of all employees in the appropriate unit and,
if an understanding is reached , embody such under-
standing in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
elected bargaining agent for the period provided by
law, we shall construe the initial year of certification
as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate unit.
See: Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB
226, 229 , enfd . 328 F.2d 600 (C.A. 5), cert. denied
379 U .S. 817; Burnett Construction Company, 149
NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10).
CONCLUSIONS OF LAW
1. Respondent is, and has been at all material
times herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Newspaper Guild of Greater Philadelphia, Local
10, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All newspaper deliverers employed in the circula-
tion department of Respondent's Wilmington, Dela-
ware, newspaper business, excluding all other employ-
ees, and all supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since February 26, 1970, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of
the Act.
THE NEWS-JOURNAL COMPANY 161
5. By refusing on or about March 10, 1970, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the aforesaid appropriate unit,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing,its employ-
ees in the exercise of the rights guaranteed to them
in Section 7 of the Act, and has thereby engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
ORDER
"Appendix."' Copies of said notice, on forms provided
by the Regional Director for Region 4, shall, after
being duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notice is not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director for Region 4,
in writing, within 10 days from the date of this
Decision and Order, what steps Respondent has taken
to comply herewith.
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, The
News-Journal Company, Wilmington, Delaware, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with Newspaper Guild of Greater
Philadelphia, Local 10, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All newspaper deliverers employed in the
circulation department of its Wilmington.
Delaware, newspaper business, excluding all
other employees, and all supervisors as defined in
the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed to them by Section 7 of
the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Wilmington, Delaware, place of
business copies of the attached notice marked
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Newspaper Guild of Greater Philadelphia,
Local 10, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive representa-
tive of all of our employees in the bargaining
unit described below with respect to rates of
pay, wages, hours, and other terms and conditions
of employment and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All newspaper deliverers employed in the
circulation department of our Wilmington,
Delaware, newspaper business, excluding all
other employees, and all supervisors as
defined in the Act.
THE NEWS-JOURNAL
COMPANY
(Employer)
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By Any questions concerning this notice or compliance
(Representative) with its provisions may be directed to the Board's
(Title) Office, 1700 Bankers Securities Building, Walnut &
This is an official notice and must not be defaced Juniper Streets, Philadelphia, Pennsylvania 19107, Tel-
by anyone , ephone 215-597-7601.
This Notice must remain posted 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.