Carter Publications, Inc.

CARTER PUBLICATIONS, INC. 599 The Respondent's illegal activities , for instance, interrogating employees re- garding their union membership and activities ; announcing a wage increase to the employees when an outstanding question of representation was pending; re- questing employees to resign from the Union ; and threatening to close the plant or to subject employees to other economic reprisals if the Union organized them (almost immediately after the Union had requested the Respondent to bargain) clearly indicates a purpose to defeat self-organization of its employees. I am convinced that the unfair labor practices committed by the Respondent are potentially related to other labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the Re- spondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the remedy recommended is coextensive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, I will recommend that the Re- spondent cease and desist from in any manner -infringing upon the rights or employees guaranteed by the Act .2' Upon the basis of the foregoing and upon the entire record in the case, the undersigned makes the following : CONCLusIIONs OF LAW 1. Bus, Sales, Truck Drivers, Warehousemen and Helpers Local Union No. 637, Affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Respondent has not refused to bargain within the meaning of Section 8 (a) (5) of the Act. [Recommendations omitted from publication in this volume.] -May Department Stores v. N. L. R. B., 326 U. S. 376; Premier Worsted Hills, 85 NLRB 985. CARTER PUBLICATIONS, INC. and INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER . Case No. 16-RC-990. Aisgwit 13, 19592 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before H. Carnie Russell , hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 100 NLRB No. 98. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the- Act, the Board has delegated its power in connection with this case to a three-member panel [Members Houston, 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 employees of the Employer. 3. No 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, for the following reasons: The Petitioner requests a unit consisting of persons who procure newspapers from the Employer, publisher of the Forth Worth, Texas, Star-Telegram, and distribute them to carrier boys for delivery to the homes of subscribers. The Employer contends that the petition should be dismissed because these persons, herein called dealers, are not its employees but are independent contractors. The Employer conceded that before December 1944 all the dealers were salaried employees, and were on its payroll as district managers. Beginning with that date, however, the Employer initiated a program for the conversion of the district managers to dealers. This result was not accomplished for all the district managers at one time, but gradu- ally over the ensuing years on an individual basis, so that at the time of the hearing there were four district managers serving the Employ- er's fringe areas still on its payroll as salaried employees. Although the facts respecting the transformation of the district managers to dealers are substantially undisputed, the Petitioner, contrary to the Employer, contends that the dealers have retained their former status as employees and have not become independent contractors. No written agreement exists between the Employer and any of its dealers defining the terms and conditions of their relationship. There appear, however, to be oral agreements between these parties arrived at through discussions between the individual dealers and the Em- ployer's representatives. While these discussions were sometimes in- formal and on occasion merely an announcement to a district manager that he would in the future operate as a dealer under the Employer's new plan,i there was a general understanding on the part of the district managers as to the substantial aspects of the dealership plan before they elected to operate under it. The understanding by the dealers as to the change in their relation- ship to the Employer is clearly exemplified by the following excerpt 1 Thus, one dealer who had been a district manager upon entering military service, upon his return was briefly informed as to his new status as a dealer . He testified that he had learned from his associates about the new arrangement , and knew the details without being specifically told about them by the Employer. CARTER PUBLICATIONS, INC. 601 from a letter dated January 13, 1950, to the Employer, signed by 22 of the 24 dealers : The relationship between management and dealer is, as you know, somewhat different from that existing between management and employee and for reasons which are mutually beneficial. How- ever, we would like to affirm that our status as Dealers does not preclude the continuation of loyalty and duty to the Star-Tele- gram that characterized our service when we were salaried employees. As distinguished from conditions which obtained while they were district managers, dealers are not listed on the Employer's payroll, do not receive salaries, social security payments and income taxes are not withheld from their earnings, they are not covered by workmen's com- pensation insurance carried by the Employer, and they do not receive certain employee benefits such as vacations or insurance. Instead of salaries, dealers' earnings are the difference between the prices paid by them to the Employer for newspapers, and the resale price for this commodity charged to subscribers, less the operating expenses borne by the dealers incident to their operations. The Employer deter- mines the prices charged the dealers and the rates to subscribers, as well as the prices charged by the dealers to the carrier boys for the newspapers they deliver 2 The Employer determines the boundaries of each dealer's area, and does not permit dealers to conduct business outside their assigned areas. The Employer may also change these boundaries, but dealers may accept or reject additional territory of- fered to them. Dealerships are not for a specific term, and apparently are terminable or may be surrendered at will by the Employer or the dealers. As in the past, dealers pick up their papers at the Employer's premises, using their own mode of transportation which is neither furnished nor prescribed by the Employer, and which is maintained by the dealers at their own expense. While under the old arrange- ment the district managers had also furnished and maintained their own vehicles, they had received partial reimbursement for such ex- pense. The dealers need not themselves pick up their papers, but may freely select their agents for this function. The Employer re- quires only that the dealers or their agents be at the delivery dock at scheduled times to receive the papers, and as a means for procuring compliance with this requirement had the dealers sign in the time when they report. Occasional failures by the dealers to sign in have resulted in written or verbal requests from the Employer's circulation depart- ment to comply with this procedure, but no penalties or disciplinary measures have been invoked therefor. 2 The earnings of carrier boys are the difference between the prices charged them for newspapers and the resale price to subscribers. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carrier boys, as in the past, are parties to an independent-contractor relationship with the dealers, and are neither employees of nor have any contractual relationship with the Employer. They are hired and discharged exclusively by the dealers, and all financial transactions between them are handled without participation by the Employer.3 Whereas formerly the Employer reserved the right to reject carriers hired by the district managers, the Employer presently retains no authority with respect to their selection or discharge, or the manner in which they should perform their duties. At certain times each day, after morning and evening delivery of newspapers have been completed, the dealers are required to check with the Employer by telephone to receive complaints turned in by subscribers concerning deliveries. The Employer expects the dealers to contact it from their particular delivery areas to expedite the han- dling of these complaints. Otherwise, the Employer makes no demands as to where or how the dealers should spend their time, or whether they should personally conduct their delivery operations. In fact it is immaterial to the Employer whether the dealers select substitutes to do their work while they engage in other businesses or activities,4 and no approval in the selection of these substitutes is required by the Employer. This practice extends to the selection by the dealers of substitutes during their vacations, and differs from the condition prevailing when they were district managers whereby approval of these substitutes was required by the Employer. In addition to performing their delivery operations, the dealers are expected by the Employer to maintain high subscription levels, and for this purpose the Employer encourages the procurement of new business by conducting occasional group meetings with the dealers, and by organizing subscription campaigns by the dealers and carrier boys. No compulsion is applied to the dealers, however, to attend these meetings, and no methods are prescribed for adherence by the dealers or carrier boys in soliciting new business. The dealers, more- over, are free to abstain from participating in campaigns. While the Employer demands competent performance from the dealers in the conduct of their operations, and claims the right to cancel dealerships for incompetence, the dealers, as noted above, are not restricted in the choice of methods or means of accomplishing a Under the district manager plan , the Employer prepared the monthly bills to the car- rier boys for the district managers. Now the dealers bill the carrier boys themselves. Under the old plan , the district managers were required to obtain cash security from the carrier boys which was deposited with the Employer . Now the dealers deposit these funds in a bank. Collection losses are borne by the dealers or carriers, and all damages caused to the property of subscribers in delivery of papers are the responsibility of the dealers and car- rier boys. 4 The Employer does object to the conduct of outside activities by the dealers or carrier boys in the course of delivery of papers to subscribers, such as delivery of political announce- ments together with the papers. CARTER PUBLICATIONS, INC. 603 their work. There are occasional inspections by the Employer's rep- resentatives to see that delivery of newspapers is made in a suitable manner, and there have been complaints by the Employer to dealers where faulty deliveries have been detected or brought to the attention of the Employer by subscribers. These complaints, having been transmitted to the dealers by the Employer, have been left to the dealers' discretion for satisfactory adjustment. Although suggestions and advice are offered by the Employer's circulation department by persons who had formerly supervised the district managers, the deal- ers have the final word as to their acceptance or rejection. There have been a few instances when dealers were told by a former supervisor to take certain actions which the dealers involved may have regarded as orders concerning which they had no alternative except to comply,5 but these incidents do not sufficiently controvert the clear and explicit testimony by the Employer's circulation director and vice president, who is directly over the circulation department supervisors, that they have no authority to change the Employer's policy regarding the deal- ers' freedom of action. In determining the existence of an employee or independent con- tractor relationship, no single factor is controlling. It is well settled, however, that the most essential element in an employee relationship, as distinguished from independent contractorship, is the right of the employer to direct and control the manner in which the employee's work shall be performed, that is, the right to-determine not merely the result but the methods and means by which such result is to be accomplished!, We are satisfied that the Employer does not possess sufficient authority to control the methods and means by which the dealers may accomplish their work to indicate that they are employees. On the other hand, the Employer's lack of control over their activities, coupled with the numerous entrepreneurial aspects of the relationship described above, demonstrates that the dealers are independent con- tractors.7 Accordingly, we shall grant the Employer's motion to dismiss the petition s 5 On one occasion a supervisor demanded that a dealer deliver a paper to a subscriber, although the dealer protested that the subscriber was not in his territory ; another dealer was directed to satisfy nondelivery complaints at a time when he felt that he should be with his carrier boys ; a dealer was asked to eliminate a car route for a carrier boy, and he complied with this request although he would not have done so if he had felt free to exer- cise his own judgment ; a dealer was once requested to stay on duty later than his normal quitting time to perform a certain duty ; and a dealer was directed to clean up waste papers and wires left on a street corner after distribution of newspapers by the dealer to the carrier boys. ° Ctitiren News Company, Inc., 97 NLRB 428. The Times Herald Printing Company, 94 NLRB 1785. ° At the hearing the Petitioner indicated that it was willing to represent in a unit to- gether with the dealers other employees in the Employer's circulation department if the Board were to include these employees in the unit. It is evident, however, that the Peti. tioner's willingness to represent these employees is dependent upon a finding that the dealers are employees. 604 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD Order Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the National Labor Relations Board hereby orders that the petition filed herein be, and it hereby is, dismissed. W. SHANHOUSE SONS , INC. and UNITED GARMENT WORKERS OF AMERIC.1, AFL, PETITIONER W. SHANHbuSE SONS, INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, PETITIONER. Cases Nos. 15-RC-6277 and 15-RC- 649. August 13, 1952 Second Supplemental Decision and Order On April 1, 1952, pursuant to the Board's Decision and Direction of Election," an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Fifteenth Region. On May 23,1952, the Board issued a Supplemental Decision and Direc- tion 2 in which it overruled the challenge to a ballot which was sufficient to affect the results of the election, and directed that the ballot be opened and counted. On June 2, 1952, the Regional Director, after opening and counting the challenged ballot, furnished the parties with a revised tally of ballots which showed the following election results : Original Challenged Final Tally Counted Tally Approximate number of eligible voters----------- 77 77 Void Ballots----------------------------------- 0 0 0 Votes cast for Amalgamated Clothing Workers of America, CIO-------------------------------- 86 0 86 Votes cast for United Garment Workers of America, AFL-------------------------------- 0 0 0 Votes cast against participating labor organiza- tions ---------------------------------------- 35 1 36 Valid votes counted----------------------------- 71 1 72 Unopened challenged ballot---------------------- 1 0 On June 10, 1952, the Regional Director notified the parties by tele- gram that, in view of these election results, a runoff election was re- quired under Section 102.62 of Board Rules and Regulations. On June 14,1952, the Employer filed with the Board motions in opposition to runoff election and for oral argument. Neither of the unions i Not reported. 2 99 NLRB 267. 100 NLRB No. 96. -