Columbia Reporting Co.

In the Matter of FRED J. SPERAPANI D/B/A COLUMBIA REPORTING COM- PANY,1 EMPLOYER and OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL 2, AFL, PETITIONER Case No. 5-RC-V9.-Decided January 17; 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed,. a hearing was held before Harold G. Biermann, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed? Upon the entire record in this case,the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. The question concerning representation : The Petitioner seeks to represent the staff reporters and operators of the Employer's Washington, D. C., office. The Employer con- tends that the petition should be dismissed on the grounds that: (a) The staff reporters and operators are independent contractors and not employees within the meaning of the Act; and (b) the Board should not, as a matter of policy, exercise jurisdiction over this reporting enterprise. (a) The Employer is engaged in the business of reporting and tran- scribing proceedings before Government agencies- and congressional committees. It obtains work with Government agencies by contracts awarded on the basis of competitive bidding, and with congressional committees by appointment of the committees. The Employer assigns reporters to cover hearings, gets the notes transcribed by operators, delivers transcripts to the agency or committee, and retains reporters' notes for 3 years. I The name of the Employer appears as amended at the hearing. After the hearing the Employer made a motion for oral argument . This motion is denied as, in our opinion, the issues are sufficiently developed in the record and the briefs. 88 NLRB No. 39. 168 COLUMBIA REPORTING COMPANY 169 The terms of a staff reporter's 8 relationship to the Employer are oral. An individual becomes a staff reporter after an interview with the Employer in which the parties agree upon the amount of pay. As the rate is almost uniform throughout the District of Columbia, there is little or no bargaining thereon, and a reporter's willingness to be- come a staff member therefore depends upon the amount of work he is led to expect. The Employer does not give its reporters work guarantees. The Employer's reporters, as is generally true in Washington, D. C., are paid on the basis of a page rate, which varies with the speed of delivery demanded by the customer and with the type of hearing involved, that is, whether before a congressional committee, a Federal agency, or the Supreme Court. A reporter is expected to sell as many copies as possible of transcripts of the hearing he is reporting, although his rate of pay is the same regardless of the number of copies sold. A reporter bills the Employer for his pay once a week on mimeographed forms supplied by the Employer. Any discrepancies between a re- porter's bill and the Employer's records are settled by counting the pages of transcript. No social security or income taxes are deducted by the Employer from the reporters' pay. All staff reporters are covered by group hospitalization paid for by the Employer. A staff reporter gives the Employer first call on his services, but, if no work is available from the Employer, he may accept assignments from other reporting agencies. Such assignments may be given to a reporter directly or through the Employer. In either event, the reporter is paid for his work by the agency for which the work is done. It was estimated at the hearing that 98 percent of the work of the Employer's staff reporters is performed for the Employer. A re- porter is free to refuse an assignment of the Employer, and, on occa- sion, does so, but only if another reporter is available; and, conversely, the Employer will not insist upon a reporter turning down more desirable work elsewhere if it has other reporters available for its assignments. Due to the nature of a reporter's work, it is impossible to supervise him or otherwise control the quality of his work. The time and place of the hearings are set by the clients. A reporter obtains assignments from the office manager of the Employer by reporting in person or by telephone to the office of the Employer. After a reporter has taken notes at a hearing, he usually comes to the office, where he is told 'by 8 The term "staff reporter" Is used to distinguish employees of the Employer from free- lance reporters, who maintain their own offices , and perform work for the Employer and other reporting agencies without giving any agency first call on their services. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the office manager of the Employer whether to dictate the notes into a dictaphone or to hand them to a note reader. The dictaphones and desks on the Employer's premises are owned by the Employer, who also supplies stationery. Some of the reporters own their own dictaphones in order to enjoy the convenience of dictat- ing at home. Otherwise, they do their dictating on the Employer's premises. All reporters who are stenotypists own their own stenotype machines. If a staff reporter is not satisfied with the amount of work assigned to him, he so notifies the Employer and goes elsewhere. As the Em- ployer can rid itself of an unsatisfactory reporter by failing to assign him any work, there is no occasion actually to discharge a reporter. The operators' relationship to the Employer is like that of the re- porters except that operators are assigned their work by the head operators,' are expected to perform all their work on the Employer's premises, and perform less work for outside agencies. There is no evidence that operators are free to turn down assignments except when they experience difficulty in working with a particular reporter. The operators' per-page rate of pay depends upon the speed of delivery required and upon whether notes are transcribed from dictaphone rec- ords or from reporters' notes. It is apparent from the foregoing that the Employer retains control over the earnings of reporters and operators, that their work con- stitutes an integral part of the Employer's business, that the reporters and operators do not hire others to do the work assigned to them by the Employer, and that the relationship of the Employer to the re- porters and operators is a continuous one. To the limited extent per- mitted by the nature of its business, the Employer also furnishes the premises on which, and the tools by which, the work is performed. In view of these circumstance, we find that the reporters and operators of the Employer are employees within the meaning of Section 2 (3) of the Act.5 (b) The :Employer also contends that it would not effectuate the policies of the Act for the Board to assert jurisdiction in the instant case, basing its contention on the particular nature of the enterprise involved. Governmental contracts are let once a year, at which time reporting agencies, individual reporters, and various partnerships of individuals and reporting agencies bid competitively. The successful 4 There.are two head operators . One is in charge of the operators transcribing from dictaphone records, the other of operators transcribing from the reporters' notes. Steinberg t Company, 78 NLRB 211; Sam. Marcos Telephone Company, 81 NLRB 314. Report No . 245, 80th Cong., 1st Sess., House of Representatives , April 11, 1947, p. 18, defines independent contractors as those who "undertake to do a job for a price, 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." COLUMBIA REPORTING COMPANY 171- bidder becomes the employer during the contract year, with former employers frequently working as reporters for their former employees,. and with completely new alignments in partnership among those hold- ing the contracts. The Employer urges that in view of the annual' reshuffle of employment relationships, and the existence of various joint employer relationships, certification of a collective bargaining- agent would be of short serviceability and would lead only to con- fusion. We do not agree. Employment relationships in this business are for at least a year. We shall not deprive employees of the rights. guaranteed them by the Act merely because their designation of a. bargaining representative might be effective for only a year, or be- cause collective bargaining with the various combinations of employers; in the reporting business might involve unusual problems. Accord- ingly, we find that a question affecting commerce exists concerning- the representation of employees of the Employer within the meaning: of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks to represent the reporters and operators em- ployed by the Employer in one unit. The Employer contends that, the interests of the reporters and those of the operators are so diver- gent as to preclude their being properly represented in a single unit .6- We do not agree. Although the reporters are more highly paid than the operators, the- method of payment is the same, that is, a per-page rate varying with. the speed of delivery required. In order to obtain a correct transcript,. reporters and operators must work closely together, the latter con-- sulting the former whenever the notes being transcribed are not clear.. Many reporters and operators work as teams, one operator frequently being assigned to transcribe all the notes of a reporter with whose work he is familiar. This teamwork is especially important where operators make transcripts directly from stenotype or shorthand notes.- In view of these circumstances, we find that the interests of the reporters and the operators are sufficiently identical to warrant the representation of both groups in a single unit. Accordingly, we find that all the staff reporters and operators' at the Employer's Wash- ington, D. C., office, excluding all other employees and all supervisors,. At the hearing the Employer contended that the reporters were professional employees, and therefore could not properly be included in the same unit as the operators. The Employer did not press this claim in its brief . As the reporters have to meet no special educational requirements and their competence is acquired by years of practice rather than schooling they are clearly not professional employees within the meaning of the Act. 4 The relationship to the Employer of reporter Jack Rund and his wife , who transcribes his notes, is not entirely clear from the record . The Runds do all their transcription work at home. If Jack Rand gives the Employer first call on his services , and if he performs more than 50 percent of his work for the Employer , he and his wife are to be included In the unit ; otherwise they are to be excluded. 1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, including employees who did not work during said payroll period because they were ill or on vacation or tempo- rarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Office Employees International Union, Local 2, AFL. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election.