The Times Herald Printing Co.

National Labor Relations Board - Board Decisions

Jun 29, 1951

94 N.L.R.B. 1785 (N.L.R.B. 1951)

THE TIMES HERALD PRINTING COMPANY 1785
THE TIMES HERALD PRINTING COMPANY and AMERICAN NEWSPAPER
GUILD, CIO , PETITIONER . Case No. 16-RC-675. June 29, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Elmer Davis, hearing officer.'
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed?
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 [Chairman Herzog and Members Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of 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 to represent a unit of all employees in the
Employer's circulation department, including - district managers or
city dealers and truck drivers. The Employer generally agrees with
the Petitioner's unit request except that it would exclude the district
managers or city dealers. as independent contractors. It would also
exclude the truck drivers.
The Employer, a Texas corporation, is engaged in Dallas, Texas,
in the publication of a daily newspaper, known as the Dallas Times
Herald, and in the operation of a radio station with' the call letters
KRLD, AM-FM-TV. This proceeding involves the circulation
department of the newspaper which is concerned with the sale and
distribution of the newspaper and with keeping records relating to
circulation. The parties agree to the. inclusion in the unit of com-
The Employer contends that the petition should be dismissed because the Petitioner
did not submit proof at the hearing that it has complied with the requirements of
Section 9 ( f), (g), and ( h) of the Act . We find no merit to this contention . The fact
of compliance by a labor organization which is required to comply with the filing require-
ments of Section 9 (f), (g), and ( h), is a matter for administrative determination and
is not litigable by the parties . Moreover , the Board is administratively satisfied that
the Petitioner is in compliance . See Sunbeam Corporation, 94 NLRB 844 ; Swift & Com-
pany, 94 NLRB 917. Cf. Highland Park Manufacturing Company, 71 S. Ct. 758.
2 After the close of the hearing , the Employer filed with the Board a motion to reopen
the record to receive additional evidence with respect to the city dealers' alleged status
as independent contractors . In view . of our finding supra that the city dealers are
independent contractors , the Employer's motion is hereby denied.
The Employer has also requested oral argument . This request is also denied inasmuch
as the record and briefs submitted by the parties adequately present the ' issues and
positions of the parties.
94 NLRB No. 250.
1786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint desk clerks, circulation clerks, travelling representatives, street
salesmen, the bookkeeper, and the stenographer typist.
The disputed categories are as follows :
1. District managers or city dealers: Until the middle of January
1951, these individuals, of whom there are 29, were carried on the
Employer's payroll as district managers. Their function as district
managers was to see that proper delivery of, and collections for, news-
papers was made to the subscribers in their respective districts, all of
which were located in the Dallas metropolitan area. Physical deliv-
ery of the newspapers to the subscribers was made by carrier boys with
whom the Employer had separate contracts.' In the performance
of their duties, the district managers were required to keep detailed
records for auditing by the Employer and to maintain regular contact
with the Employer's office to receive any reports their subscribers
might have made to the office regarding the delivery or nondelivery of
papers. They were weekly paid, given transportation allowances, and
worked under the supervision of city supervisors.
On January 12,1951, the Employer, in a mimeographed letter to the
district managers, announced that it was changing its method of news-
paper distribution in the Dallas districts "to the Independent Con-
tractor System of distribution" and that pursuant to this plan, it was
terminating the employment of all district managers as of the close
of business the following day. In the same letter, the Employer
suggested that the district managers indicate in a space provided there-
for whether or not they were "interested in being considered for a con-
tract under the new System" and in conclusion stated that a meeting
would be held to discuss the subject more fully on the following day.
About the same time the Employer advised the carrier boys in the
Dallas districts that it was terminating their contracts because,' effec-
tive January 14, 1951, all papers would be sold to "independent con-
tractors for distribution throughout Dallas" and that thereafter all
carrier contracts would be handled by "independent contractors" and
not the Employer.
Within a week or two after January 14, each of the former district
managers except one signed a separate contract with the Employer
which is titled Independent City Dealer Contract. These contracts
are currently in force and are terminable on 10 days' notice by either
party. Since executing these contracts, the former district managers
have been designated city dealers. Under the terms of the contract,
each city dealer is permitted to order the number of daily -and Sunday.
papers equal to the number of subscribers in the district he services,
for which he pays a fixed price per copy. The papers are delivered to
3 The parties agree that the carriers should be excluded as independent contractors.
THE TIMES HERALD PRINTING COMPANY 1787
the dealer at a designated location within his district by the Employ-
er's truck drivers and the dealer pays his bill in full each week. The
record shows that the dealers are virtually unrestricted by the
Employer in the conduct of their business. They exercise their
independent judgment as to where and when the papers shall be dis-
tributed and "have full power to employ, control, and discharge any
assistants" they may need. In practice, the dealers distribute bundles
of papers to carriers who make the actual delivery to.subscribers.
The dealers use their own trucks and make whatever arrangements are
necessary for the service of carriers, determining for themselves the
number they need. They charge the carriers a flat rate per paper and
the difference between this figure and the purchase price constitutes
their earnings. They are not carried on the Employer's payroll and
no income, social security, or unemployment compensation taxes are
deducted from their earnings. They are not required to submit book-
keeping or other records to the Employer for inspection or report to
the 'office as was the case when they were acting as district managers.
However, they telephone the complaint desk several times daily for
reports on customer complaints or requests. The record shows that
the dealers are not precluded from engaging in gainful activities other
than the sale of the Employer's papers nor from arranging for substi-
tutes to handle their districts during absences.
As noted above, the Employer contends that the city dealers are
independent contractors. The Act specifically excludes independent
contractors from the definition of the term "employee."' The legisla-
tive history of the Act shows that Congress intended that the Board
recognize as employees those who "work for wages or salaries under
direct supervision," and as independent contractors those who "un-
dertake to do a job for a price, decide how the work will be done,
usually hire others to do the work, and depend for their income not
upon wages, but upon the difference between what they pay for goods,
materials, and labor and what they receive for the end result, that is,
upon profit."' Applying this standard to the instant case, it is clear
and we find that the city dealers are independent contractors and not
"employees" within the meaning of the Act.' Accordingly, we shall
exclude them from the unit.
2. Truck drivers: There are 14 truck drivers in the Employer's
circulation department, most of whom work regularly on a part-
time basis. Using the Employer's trucks, they deliver newspaper
4 Section 2 (3).of the Act provides that "the term `employee' . . . shall not include . . .
any individual having the status of an independent contractor."
5 80th Congress, 1st Session, House of Representatives Report No. 245, April 11, 1947,
page 18.
9 The Dispatch Printing Company, Incorporated , 93 NLRB ; 7282; Hearst Consolidated
Publications, Inc,, 83 NLRB 41.
1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bundles to dealers and carriers in various areas in Dallas County.
They are weekly paid and are supervised by the. circulation manager.
In view of these facts and because no other union seeks to represent
them as a separate unit, we shall include the truck drivers.'
We find that all the employees in the circulation department of
the Employer's newspaper, including truck drivers and city repre-
sentatives 8 but excluding city dealers or district managers, PBX
operators, and all supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
7 United States Hoffman Machinery Corporation, 91 NLRB No. 56. .
8 Although the parties agreed at the beginning of the hearing that the city representa-
tives were supervisors , the Employer changed its position with respect to them before
the hearing closed. In its brief the Employer urges their inclusion in the unit. The
record indicates that the city representatives were divested of whatever supervisory
authority they may have had at the time the district managers became independent
contractors . We have therefore included them in the unit.
° At the close of the hearing , the Petitioner contended that the PBX operators should
also be included but subsequently agreed to the exclusion of these employees when the
Employer claimed surprise and offered to prove that the request was an improper one.
In its brief before the Board , however, the Petitioner urged the Board on the basis of
the evidence in the record to nrake a determination with respect to these employees
regarding their unit placement . The record does not show and the Petitioner does not
claim that the PBX operators are part of the circulation department , the only department
whose employees are here requested. In view of . these circumstances and the fact that
the parties agreed at the hearing to the exclusion of the PBX operators from the unit,
we have excluded them.
10 In view of this finding , the Employer' s motion to dismiss the petition based on the
claim that the unit requested by the Petitioner is inappropriate is hereby denied.