Hearst Consolidated Publications, Inc.

In the Matter Of HEARST CONSOLIDATED PUBLICATIONS, INC., NEW YORK POST CORPORATION, THE NEW YORK SUN, INC., NEW YORK WORLD- TELEGRAM CORPORATION, EMPLOYERS and NEW YORK NEWSBOYS' UNION No. 471, AFFILIATED WITH THE INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA, A. F. L., PETITIONER Case Nos. 2-RC-73 through 2-RC-76.-Decided April 21, 1949 DECISION AND ORDER Under separate amended petitions duly filed, a hearing in the above- consolidated cases was held before Julius Serot, hearing officer of the National Labor Relations Board. In the course of the proceeding, the Employers filed motions to sever that were denied, and motions to dismiss which were referred to the Board. Such motions to dis- miss will be granted for the reasons stated herein. The hearing of- ficers' rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Reynolds, Murdock, and Gray]. Upon the entire record in this case, the Board finds : 1. The Employers are engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is an organization affiliated with International Printing Pressmen & Assistants' Union of North America, A. F. L., and claims to represent employees of the Employers. 3. The Petitioner seeks a unit composed of full-time news vendors at established spots, who are licensed by the License Department of the City of New York to make single copy sales of newspapers and periodicals only, excluding all news vendors who are licensed by the Park Department, or who pay rent to a landlord, storekeeper, or agent, or who hold a license issued by the City of New York covering the 83 N. L. R. B., No. 4. 41 42 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD sale of items other than newspapers and periodicals.' The Employers contend that the claimed news vendors are independent contractors, and are not employees within the meaning of the Act.2 The Employers are engaged in the business of publishing daily ,evening newspapers in New York City. They sell their papers to. news vendors, among. whom are those sought herein, who resell them at a profit to the public. The news vendors are charged a wholesale price for the papers delivered to them, but may return any unsold papers and receive full credit therefor at- wholesale price. Both the wholesale and retail prices are fixed by the Employers. The income of the news vendors, from the sale of newspapers,3 is the difference between the cost of the papers and the retail price thereof. Once the papers have been delivered to the news vendors, any loss thereof, or damage thereto, must be borne by them, and not by the Employers.4 News vendors, including those sought herein, are not listed on pay rolls of the Employers. They receive from the Employers no wages,, salaries, commissions, bonuses, or any compensation on an hourly, daily, weekly, or monthly basis. Their income taxes are not withheld by the Employers, and they are not subject, by reason of the relation- ship in question, to the benefits of social security, workmen's compen- sation, or unemployment insurance. . The sale of newspapers published by the Employers is only a part of the activities engaged in by the claimed news vendors, which ac- tivities include the sale of various magazines, periodicals, and certain newspapers published by companies other than those involved in. this proceeding.e These news vendors have wide latitude for individ- ual-initiative in the conduct of their business, and the Employers have no control over their methods of operation. The Employers have no authority, other than insignificant limitations noted hereinafter, over the manner in which merchandise is sold, the equipment used ,e the persons employed by the news vendors, the bookkeeping methods of such news vendors, their hours of work, holidays, and vacations, per- sonal behavior,' appearance, or their general conduct while at work. Moreover, the news vendors in question are not hired by the Em- "Although the unit sought is ambiguously described, and appears to be composed arbi= trarily of a portion of the news vendors who sell the Employers' newspapers , in view of our findings herein we deem it unnecessary to pass upon the appropriateness of such unit. 2 Section 2 (3) of the Act provided that "The term 'employee' . .. shall not include .. . any individual having the status of an independent contractor . 2 Such income constitutes only a portion of that derived by each news vendor from the operation of his newsstand. 4 This conclusion reasonably may :be inferred from the record. a The Petitioner affirmatively rejects any claim that , the news vendors sought herein are employees of such other publishers. 9 Prior to 1942 , three of the Employers leased or sold newsstands to some of the news vendorsSclaimed herein. HEARST CONSOLIDATED PUBLICATIONS, INC. 43 ployers, but are granted licenses to operate their stands by the De- partment of Licenses of the City of New York.7 The right to suspend or revoke such licenses is placed by law in the Commissioner of Licenses and does not rest with the Employers." Notwithstanding the above, the Petitioner contends that the Em- ployers assert certain elements of control over the claimed news ven- dors which have the effect of making such news vendors employees, rather than independent contractors. The record discloses, among other things, that the manner in which the Employers' newspapers are displayed is controlled to some extent by the Employers; that the number of newspapers distributed to each news vendor is determined by the Employers; and that on occasions the Employers have tempo- rarily refused to furnish papers to a news vendor who has failed to follow instructions with regard to display. We do not believe that. these factors, or any other factors appearing in the record, establish an employer-employee relationship between the Employers and the news vendors in question. Furthermore, the above-mentioned con- duct of the Employers is not inconsistent with a vendor-vendee rela- tionship between them and the news vendors, since it is not uncommon for a seller of merchandise to place limitations upon the disposal methods of those who purchase from him. As already noted,9 the Act specifically excludes independent con- tractors from the category of "employees." The legislative history of the Act shows that Congress intended that the Board recognize as employees those who "work for wages or salaries under direct super- vision," and as independent contractors, those who "undertake 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." 10 Applying such standards to the instant case, it clearly appears that the news vendors claimed herein are independent contractors, and are not "employees" within the meaning of the Act.',, In view of the foregoing, we find that no question affecting com- merce exists concerning the representation of employees of the Em- ployers, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the National Labor Relations Act. Accordingly, we shall dismiss the petitions filed herein. I Article 11, Chapter 32, Administrative Code of City of New York. 8 Section 773a-5 0, Administrative Code of City of New York. 8 See footnote 4, supra. 10 80th Congress , 1st Session , House of Representatives Report No. 245, April 11, 1947„ page 18. 11 See Matter of The Kansas City Star Company, 76 N. L. R. B. 384. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- ORDER Upon the basis of the above findings of fact, and upon the entire record in this proceeding, the National Labor Relations Board hereby orders that the petition filed herein, be, and they hereby are dismissed.