Plainfield Courier-News Co.

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD castings principally for railroad cars. In addition thereto, the Em- ployer is about to begin the production of armor plate in the South Plant which it began to operate for the Federal Government on January 1, 1951.$ Both the North Plant and the South Plant are conducted as a single integrated enterprise.9 The IBEW's contention that the electricians at the Employer's plant constitute an appropriate unit is based on craft considerations. We find it unnecessary to determine whether the employees whom the IBEW seeks to represent constitute a recognized craft group, because the record clearly indicates that the Employer's operations place it within the basic steel industry, where the Board has declined to sever craft employees from an industrial unit.,,, We shall, therefore, order that the petition of the IBEW be dismissed and shall find appropriate the plant-wide unit sought by the Steelworkers. We find that all production and maintenance employees at the Employer's St. Louis, Missouri, plant, including lead men," but ex- cluding bricklayers, their helpers and apprentices, office and clerical employees, guards, professional employees, and 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. Order IT IS HEREBY ORDERED that the petition filed in Case No. 14-RC-1361 be, and it hereby is, dismissed. [Text of Direction of Election omitted from publication in this volume.] 8 The record discloses that the South Plant was previously operated by the Employer for the Federal Government from August 1943 to August 1945 and from October 1948 to August 1949. P The term , Employer's plant , is used throughout to indicate both the North Plant and the South Plant. 10 National Tube Company, 76 NLRB 1199 ; Baldwin Locomotive Works, 78 NLRB 803 11 Lead men are included in accordance with the stipulation of the parties. PLAINFIELD COURIER-NEWS CO. a'nd ELIZABETH NEWSPAPER GUILD, AFFILIATED WITH AMERICAN NEWSPAPER GUILD, CIO, PETITIONER, Case No. 2-RC-2911. July 25, 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 Jerome A. Reiner, hearing 95 NLRB No. 65. PLAINFIELD COURIER-NEWS CO. 533 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 : Petitioner seeks to represent eight full-time correspondents,' who are engaged in gathering, reporting, and presenting news from desig- nated suburban territories for the Employer's daily newspaper. The. Employer contends that the petition should be dismissed on the ground that these correspondents are independent contractors and not, employees within the meaning of the Act; and furthermore that there is no difference between the so-called full-time and part-time or "stringer" correspondents whom the Petitioner does not seek to represent. The Employer publishes a daily newspaper, part of the Gannett newspaper chain, in the city of Plainfield, New Jersey. It employs a regular staff of editors and reporters who report to the newspaper office every day at definite hours, work a 40-hour week, and are hourly paid, with higher rates for overtime. These staff reporters generally do their work at their desks in the daytime, from 7 or 8 a. m. to 4: Po or 5 p. m. under the supervision of the city editor. For more than 1.6 years, the Petitioner has been the collective bargaining agent for thccrt editorial staff reporters. In addition to his regular staff of reporters, the Employer utilizes the services of some 35 persons, referred to n.u space or suburban correspondents,' because they are paid on the basic of copy published, and who generally supply news from suburban or outlying districts. Of these, the Petitioner seeks to represent only 8 who are full-time suburban correspondents. The remaining 27 are part-time correspondents to whom Petitioner refers in the language of the trade as "stringers" and whom it does not seek to represent.' The full-time suburban correspondent is usually accepted after an interview with the managing or city editor who inquires into his background, education, and experience. He is advised of the geo- 1 These are Carter, Coulbourn, Hegeman, Lawrence , Mahoney, McFadden, Reynolds, Ungerleider, or individuals who have been hired to replace them. 3 On November 1, 1950, the Petitioner and the Employer executed their latest contract from which , as was customary, all space correspondents including those who are the subject of this petition were excluded . During the hearing, the Employer indicated, that there might be a question of a contract bar. However, as the petition was filed before the con- tract was executed and the space correspondents, Including the persons subject of this petition , were specifically excluded from the contract, there is no merit to the contention of a possible contract bar issue. 3 See footnote 14, infra. 534 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD graphical territory that is available for him to cover, the kind of news the publication requires, and the style in which copy should be presented. He is then given a schedule of events which are covered as a routine matter, such as police courts, other local courts, school board and health board meetings, political meetings of all kinds, social, political, or literary clubs, news of churches, hospitals, under- takers, fires, etc. He is given a list of names and telephone numbers to use as contacts and a style book, containing rules of spelling, gram- mar, punctuation, special newspaper style of writing, and a resume of the law of libel for the correspondent's guidance. If "spot" news develops in a given correspondent's territory, the night or suburban editor will usually give the correspondent the first opportunity to cover it, or he may assign a staff reporter to do it. The correspondent must meet deadlines or risk the rejection of the story with a conse- quent reduction in earnings. As a group, the correspondents are now paid twice a month at the rate of 15 cents per'inch for copy published, a rate which, apart from any bonus paid at the discretion of the Employer, forms the basis of the compensation relied upon by these correspondents as a major source of their income 4 There is no writ- ten employment or other agreement under which the Employer's right to discharge is limited for a definite period of time.5 . Although, other than indicated above, the correspondent is not spec cifically told how to get his news, the Employer requires that news or stories submitted to it by the correspondents must not have been pre- viously submitted to other newspapers. The Employer concedes, as a further limitation, that the editor in charge is the sole judge of what kind and how much of a given story will be published. In practice, correspondents have submitted copy to the editor in charge, who edited it as he saw fit and either prepared copy for the composing room or returned it to the correspondent with his suggestions. When he came to the office, the correspondent would find suggestions, leads, tips, and 4 Of the eight correspondents involved, one, McFadden, receives a substantial part of his income from other sources. McFadden's income from this newspaper for. the past 3 years was about $2,200 a year. He stated that this constituted 40 percent of his total income, the remaining 60 percent being derived from various free lance work which amounts to about $900 a year and from a regular job as editor of a weekly newspaper, where he works during the day, 5 days a week. The editor stated that he knew McFadden had this job and that it was convenient for him to gather ne'6s while working there for the Courier-News. McFadden came to the Courier-News regularly every night to type up his work. Correspondent Lawrence stated that he helps out in the office of another newspaper a :number of hours amounting to about 1 day's work a week. Another testified that he has done publicity work for the Republican National Committee, which is not a regular assign- ment. There is no evidence that the others receive any income or do any work for any -other employer, and several correspondents testified that their territories require full time of 40 hours or more a week in order to do the job adequately. These correspondents have -worked for this newspaper from 2 to 10 years. 5 The Employer stated at the hearing that no one has the right to discharge a correspond- aent, but conceded that the editor may refuse to accept copy from a given correspondent at any time and that the effect of such action would be the same as a discharge. The record shows that when two of the suburban correspondents involved herein decided to leave the newspaper, they sent in their "resignations" effective as of a definite date. PLAINFIELD COURIER-NEWS CO. 535 follow-ups placed in a special bin by the editor to assist him in develop- ing certain news of particular interest in his territory. In addition to working on news in his own territory, the correspondent would also be directed to do "re-write" work of stories written by staff reporters or taken from other newspapers which was not necessarily limited to his particular territory, and for which the correspondent received credit.6 Until February 1951,' during the course of the hearings in this proceeding, it was customary for most of the correspondents herein involved to come to the newspaper office every night, 6 nights a week, from the hours of 6 p. m. to 12 p. m. or later," and there type up their stories at one of the typewriters available. In addition to the type- writers they also used the stationery, telephones, library, morgue, and all other facilities of the newspaper. While in the office, they discussed their problems with the night or suburban editor, answered telephone calls, interviewed the public, and generally made the office their regu- lar headquarters. The correspondents were also permitted the serv- ices of a photographer who was supplied by the Employer after approval of the editor. The territory available to a correspondent is assigned by the Em- ployer. The evidence indicates that as some territories are larger and contain greater potentialities for news than others, the corre- spondents assigned to the former have greater earning power. The editors stated that one of the reasons for giving the correspondents rewrite work was to supplement the income for the correspondents from the less desirable territories. The rate of pay is set by the publisher. Until recently it had been 10 cents per inch, now it is 15 cents. Besides the regular space rates for copy published, there is added to the correspondent's pay check certain reimbursements a and a bonus, which is either a flat rate per 6In 7uly 1950, when the negotiations for the current contract took place, the Guild called the publisher's attention to the fact that the rewrite work should be done by the salaried employees. The publisher agreed that in the future the space correspondents would not be required to do this work. The evidence shows that since that date, the correspondents have not done rewrite work on news outside their own territory. On February 14, 1951, while the hearing in this proceeding was in progress, the managing editor issued a rule to the effect that the suburban correspondents would not be permitted to.use the newspaper office facilities in the future. s The night editor denied that any correspondent was ever required to come into the office. Several of the correspondents testified they were required to come in early in order that their stories might be received before the deadline and the editor might have some Idea of the amount of copy to be submitted. One correspondent testified that she was, admonished for coming in late. The record is uncontradicted that six of the eight corre- spondents came in regularly every night but one to do their work and that the other two came in regularly but less frequently,' O Most of the correspondents are reimbursed for the use of their automobiles in their- work. The rate allowed is 51/ cents per mile. In one case, a correspondent is not allowed' mileage, but he is paid a higher space rate, namely, 25 cents an inch instead of 15 cents. The practice is for the correspondent to send in a memorandum twice a month indicating mileage made. The correspondents are also reimbursed for telephone calls, postage etc. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD story or an arbitrary amount set by the publisher. This is done be- cause frequently the amount of copy published does not reflect the work which goes into a given story. The bonus payments are made entirely at the discretion of the editor.'° It is apparent from the foregoing that the Employer retains con- trol over the earnings of these correspondents by determining the rate of pay per inch, the amount of copy to be published, and by the pay- inent of a regular bonus as extra compensation, which is entirely in the Employer's discretion. The Employer also controls the earnings in that it may, if it chooses, reimburse the correspondents for certain expenses in connection with their work. The correspondents, as a group, depend on this work as a major source of income for their liveli- hood. They are not engaged in this work as a business for profit." Although correspondents are not accorded certain employee bene- fits,12 the work of the correspondents is the same and is interchangeable with the work of the staff reporters. Furthermore, the correspondents -ire frequently appointed to the regular staff of reporters. The work they do is closely integrated with and constitutes an essential part of the Employer's business in that the Employer is dependent upon their work in order to cover the news required by its suburban subscribers. The Employer contends there is no difference between these cor- respondents and the part-time' correspondents or stringers, whom the Petitioner does not seek to represent, and that all space correspondents are independent contractors. We do not agree. The record amply supports the contention that these suburban correspondents spend a substantial amount of time getting news and preparing copy for the Employer. The stringers, on the other hand, usually service a string of newspapers, sending in news occasionally 13 from small communi- ties where it would not pay the newspaper to engage the services of 10 These bonus payments are substantial and considerably increase the earnings of the correspondent. They are not uniform as between different correspondents and not uniform for the same correspondent. No explanation was offered by the editors how these bonus payments are determined. 11 This is indicated by the fact that the right to offer their product to third parties is limited by the Employer's prior claim thereto. Moreover, the conclusion that correspondents are not independent contractors is strengthened by.the fact that reimbursement for such expenses as may constitute an item in the determination of their profits lies entirely within the discretion of the Employer. See The Dispatch Printing Company, Incorporated, Ohio State Journal Division, 93 NLRB 1282. 12 A correspondent receives no paid vacations and gets no sick leave. When he is away on vacation or is sick, the practice is for him to inform the editor in advance when he goes on vacation or telephone him when he is ill, in which case he either makes an arrange- ment for someone else to cover the news or the editor will appoint a staff reporter as his substitute. The correspondent receives no other benefits, such as holiday pay, sever- ance pay, military leave pay, etc. No social security taxes are deducted. However, in one case, a former correspondent was considered an employee, and the Employer furnished him with a car and deducted the usual taxes from his pay, although he was paid on a space basis and worked under the same conditions as the other suburban correspondents. 13 An indication of the occasional character of the work of the stringers is evidenced by their earnings. The record shows that the stringers earn from $300 a year or less to $900, the latter representing an unusual situation, as compared to the full-time correspondents whose earnings range from $2 ,200 to $2,800 a year for this newspaper. PLAINFIELD COURIER-NEWS CO. 537 a full-time person. The stringers are usually housewives or people engaged in other full-time pursuits, and are not generally expected to retain a permanent or continuous position with any one newspaper 14 The Employer further contends that it does not control the earnings of the correspondents because these depend primarily on the corre- spondent's skill, initiative, and ability and that the bonuses paid are merely extra compensation for a job well done; that the Employer has no control over the manner of getting news or over the hours the correspondent spends for the Employer; that the correspondent is free to engage in other gainful occupations; and that the large turn- over is an indication that the relationship is not intended to be per- manent or continuous; and finally that the correspondent is not en- titled to the benefits of or subject to any tax deductions as are the regular employees. We find no merit in these contentions. The record, on the whole, supports the finding that the Employer exercises a high degree of con- trol over the detailed work of these correspondents 15 As noted above, the Employer not only sets the basic rate of pay for copy published but is also the sole judge as to how much copy will be accepted for publication. The regularity with which the bonuses are paid indi- cates that these are in the nature of a salary intended as a supplement to the correspondent's income rather than as a reward for good work. Although, because of the nature of the work, it is not possible to super- vise the correspondents while they are out gathering their news," the Employer, in addition to setting certain standards and limitations in the product to be submitted by the correspondents, exercises final supervision by accepting for publication only what it wishes and re- turning to the correspondent copy for conformity with the editor's requirements. Moreover, unlike the situation involving the relationship of an inde- pendent contractor, the Employer here, may, if it is not satisfied with the kind of copy presented, terminate at any time without liability its relationship with the correspondent in the same manner as it would discharge any other employee not otherwise under contract for a defi- nite period.17 Notwithstanding the Employer's contention to the 14 The Board has, in the past, not considered "stringers" In the same class as reporters or other regular newspaper employees . Greensboro News Company, Inc., 85 NLRB 54; Worcester Telegram Publishing Co., 61 NLRB 1118; Register & Tribune Co., 73 NLRB 728; Springfield Union Publishing Co., 64 NLRB 869; see also Columbia Reporting Company, 88 NLRB 168, where the Board distinguished staff reporters from free lance reporters, in that the latter used their own offices and do work for many employers without giving the particular employer the first call on their services. 15 Toledo Scale Company, 82 NLRB 826. 11 See Columbia Reporting Company, supra, where despite obstacles to supervision, the individuals concerned were found to be employees within the meaning of the Act. 17 See Phillips Chemical Company, 90 NLRB No. 76, where the Board held such elements as actual control and the power to terminate the employment relationship are of paramount significance in determining the existence of an employer-employee relationship. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrary, the practice of the correspondents of using this experience as a training period and the fact that the turnover among correspond- ents is high are not sufficient reasons. for denying the employee rela- tionship 18 The additional facts that the correspondents are not paid on the same basis and have not been subjected by the Employer to income or other tax deductions is not in itself sufficient to establish an independent contractor relationship.19 We therefore find, upon the record as a whole, that the full-time correspondents are employees within the meaning of the Act. 4. The appropriate unit : The Petitioner seeks to represent the suburban correspondents either in a separate unit or as part of the existing unit of editorial employees currently represented by it. The Employer takes no posi- tion. The work of the correspondents and the staff reporters is similar in many respects. Both are subject to the same kind of supervision. Staff reporters and correspondents are assigned to cover the same kind of news. Staff reporters are frequently directed to substitute for a correspondent and the latter have been promoted to the regular reporter's staff. Although the staff reporters are hourly paid and correspondents are paid on basis of space, the Board has held that a difference in the mode of payment is not a reliable criterion for deter- mining how employees should be grouped.20 In view of the foregoing, and as the Petitioner has expressed its willingness to accept these employees as part of the existing unit of editorial employees, we believe that the correspondents may, if they so desire, be represented as part of the existing bargaining unit.- We shall, therefore, direct an election among the suburban correspond- . ents, excluding stringers, supervisors, and employees allied with management.22 If a majority of the employees in the voting group cast their ballots for the Petitioner, they will be taken to have indicated their desire to be a part of the existing editorial unit and the Peti- tioner may bargain for such employees as part of the existing unit. 23 [Text of Direction of Election omitted from publication in this volume.] Js A.S. Abell Company, 81 NLRB 82. R. C. Brooks, d/b/a Beechwood Lumber Company, 72 NLRB 940, where the Board held that it will not distinguish between employees solely on the ground of difference in the mode of payment ; Roy C. Martin Lumber Company, Inc., 83 NLRB 691, where the Board held that payment by employer of workmen's compensation and social security taxes is not decisive in determining the employee or the independent contractor relationship. 21 Port Arthur College, 92 NLRB 152. 21 Great Lakes Pipe Line Company, 88 NLRB 1370. 22 As the, evidence shows that Mahoney is a nephew by marriage of the president of the Employer, he is excluded from the voting group in accordance with established Board practice. Stanislaus .Implement t Hardware Company, 92 NLRB 897; Rosedale Passenger Lines, Inc., 85 NLRB 527. 20 The Post Printing ct Publishing Company, 91 NLRB No. 4. GENERAL PAINT CORPORATION 539 MEMBERS MuRDocK and STYLES took no part in the consideration of the above Decision and Direction of Election. GENERAL PAINT CORPORATION, PETITIONER and STEEL, PAPER-HOUSE AND CHEMICAL WORKERS UNION, LOCAL 578, A. F. OF L. GENERAL PAINT CORPORATION, PETITIONER and PAINT MAKERS UNION, LOCAL 1232, A. F. OF L. Cases Nos. 11-KM-183 and 21-ISM-184. July 25, 1951 Decision and Order Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Jerome A. Reiner, 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 Act. 2. No .:question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: On March 2, 1951, the Steel, Paper House and Chemical Workers Union, Local 578, A. F. of L., hereinafter called Local 578, and Paint Makers Union, Local 1232, A. F. of L., hereinafter called Local 1232, requested the Employer to give them a letter providing for recognition of the Unions as representatives of the Employer's employees and agreeing to negotiate a contract.' Local 578 sought to represent employees engaged in truck driving, shipping, receiving, and ware- housing; Local 1232 sought to represent production and maintenance employees, excluding truck drivers, shipping, receiving, and ware- housing employees. m Representatives of Local 578 and Local 1232, acting jointly, advised the Employer on March 2 that they did not represent a majority of the Employer's employees and that they did not propose to make further attempts to solicit members from among the Employer's em- ployees. Efforts to secure recognition through the medium of a letter were continued at that time, however, and thereafter on about March ' Local 1232 had filed a petition (21-RC-1775) on January 26, 1951, alleging that it represented a majority of the Employer 's employees in a production and maintenance unit. After the Employer had agreed to a consent election , Local 1232 withdrew its petition February 14, 1951. 95 NLRB No. 68.