Buffalo Courier-Express, Inc.

932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances finds appropriate for purposes of collective bargaining. However, if a majority of the employees in voting group 2 does not vote for the Operating Engineers, those employees will appropriately be included with the employees in voting group 1 and their votes will be pooled with those of that group.' If the employees in voting group 1 or the pooled group, as the case may be, select a bargaining representative, the Regional Director is instructed to issue a certifica- tion of representatives to the labor organization selected by the ma- jority of the employees, which the Board, in such circumstances, finds to be a unit appropriate for purposes of collective bargaining. 5. As indicated above, the Employer contends that an immediate election at this plant is not warranted because of the alleged instability of the work force. Inasmuch as the record shows that at least half of the expected complement was employed at the time of the reopened hearing, utilizing the skills of, or in training to utilize the skills of, the full employee complement, we see no reason to depart from our usual rule in directing an election. We believe that the eligible work- ing force will be a substantial and representative segment of the em- ployees to be employed in the unit or units.' [Text of Direction of Elections omitted from publication.] if the votes are pooled , they are to be tallied in the following manner: The votes for the labor organization seeking a separate unit in voting group 2 shall be counted as valid votes, but neither for nor against the labor organization seeking to represent a production and maintenance unit. All other votes are to be accorded their face value, whether for representation by the union seeking the more comprehensive group or for no union. 9 See The American Brass Company, 120 NLRB 1276, 1281. Buffalo Courier-Express, Inc. and American Newspaper Guild, Local 26, AFL-CIO,' Petitioner. Case No. 3-RC-337. Decem- ber 14, 1960 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 William Naimark, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to Section 3(b) of the Act, the Board has delegated its powers herein to a three-member panel [Members Jenkins, Fanning, and Kimball]. 1 The Petitioner' s name appears as shown in the petition although the Petitioner sought at the hearing to have it changed to read "Buffalo Newspaper Guild, Local 26.11 The Employer objected to such change. 129 NLRB No. 112. BUFFALO COURIER-EXPRESS, INC. 933 Upon the entire record, 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 em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Sections 9 (c) (1) and 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of all employees in the outside circula- tion department consisting of distributors and circulation salesmen. The Employer contends that the distributors are independent contrac- tors and not employees, but that if the distributors are concluded to be employees then the unit is inappropriate because the circulation sales- men should be deemed supervisors of the distributors. The Employer further contends that if the distributors are found to be employees, the unit would be in appropriate also because the circulation salesmen do not have the same interests as distributors. The Employer publishes daily and Sunday newspapers in Buffalo, New York. Its outside circulation department is currently composed of 25 circulation salesmen and 35 distributors, 22 of whom were form- erly employed by the Employer as circulation salesmen, all of whom operate under a circulation director, city circulation manager, and country circulation manager. The 35 distributors serve the various districts into which the city of Buffalo and its contiguous areas have been divided for the purpose of distribution and circulation of the Buffalo Courier-Express. Each new distributor enters into a contract with the Employer by which he agrees to purchase for resale a given number of newspapers at a so-called wholesale rate. Any change in this rate would be made by the Employer. The contract, terminable by either party upon 1 day's notice, further provides that the distributor must deliver to the Employer, upon 1 day's notice, a complete list of all customers and the number of copies of each edition sold to each customer. Although not so designated in the contract, each distributor is told upon acceptance that he will henceforth be an independent contractor and not an em- ployee of the Company. The districts serviced by distributors are es- tablished by the Employer. The distributors do not have a proprietary interest in their routes and cannot sell or otherwise assign them. The Employer establishes "truck allowances" for the less remunerative dis- tricts to make them more desirable. These allowances vary from dis- trict to district and bear no relationship to trucking expenses. Al- though any distributor may request a district boundary change, all such changes are decided by the Employer. In at least one instance when a distributor asked for a day in which to think over a proposed 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD route change, it was suggested to him by the circulation director that perhaps he did not care to continue working for the Courier-Express. The distributors are required to provide their own trucks. Some own several trucks. The Employer, however, pays the liability insurance premium on one truck for each distributor. Most of the trucks are the same color, and most of them bear the Employer's name. The Em- ployer has directed a distributor to have the Employer's name put on his truck. Distributors are required to provide whatever additional help they need and to pay such help out of their own earnings, and to provide coverage under workmen's compensation, social security, and unemployment compensation. They are required, however, to provide the Employer with records indicating their expenses in this respect. Distributors are required to service all outlets in their districts. They may solicit new outlets and otherwise expand their distribution. The Employer's circulation department also solicits new outlets, takes "stop" and "start" orders, and informs the distributors of new outlets thus obtained. The distributors must service such outlets, even though in their judgment they may lose money on them. The Employer ad- vances the distributors credit, with which to buy papers, accepts pay- ments from outlets, crediting the distributors' accounts, and takes and checks on customers' complaints. The outlet rate and any change therein is set by the Employer in order to insure that all distributors sell their newspapers at the same price. A distributor is not permitted to sell them at any other price. Any loss of uncollected moneys from carrier boys 2 or any loss rising from newspapers being lost, damaged, or stolen is the risk of the distributor. The Employer does replace lost, stolen, or destroyed color sections of Sunday papers without cost to the distributors. Periodic sales meetings of distributors are held on the premises, at the company's invitation by office letter or memo, to discuss mutual problems of circulation. A rollcall is taken and some tardy or absent distributors have been reprimanded. At one such meeting, a company official stated that he did not think he had too much room in his organi- zation for any distributor not interested enough to attend. Communi- cations from the Employer are received by the distributors in slots pro- vided for each district on the receiving platform. One distributor, whose wife was also a distributor for another news- paper, was told that he had a choice as to which of them would give up distribution. His wife then gave up her job. Another distributor, chased from the premises of a newsstand by the proprietor wielding a knife, was instructed three times by the circulation director to resume delivery. The latter then sent somebody out to see that he had done so. Still another distributor was directed by' company officials to 2 The parties stipulated at the hearing that carrier boys are not employees of the Buffalo Courier-Express BUFFALO COURIER-EXPRESS, INC. 935 change his method of collecting from carriers, which he has used for 25 years. The distributor complied with the Employer's wishes. The Employer does not cover distributors under workmen's compen- sation, unemployment insurance, or social security, nor does it with- hold income tax payments on their behalf. The Employer has a group life insurance program which provides life, hospital, and surgical in- surance for its employees. Those distributors who formerly worked as circulation salesmen continue to be covered under the program. Al- though there is conflicting testimony as to whether the Employer pays their premiums, the record does indicate that distributors were not billed for premium payments until May 1960. Distributors determine the amount of their own vacation time, are required to furnish a sub- stitute when they are absent, and are required to notify the Employer of the name and telephone number of such substitutes. The Board has frequently held that in determining the status of persons alleged to be independent contractors, the Act requires the application of the "right of control" test .3 Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the rela- tionship is one of employment; while, on the other hand, where con- trol is reserved only as to the result sought, the relationship is that of an independent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative. We are satis- fied, on the basis of the entire record, that the distributors are em- ployees of the Employer. The fact that social tsecurity and withhold- ing taxes may not be deducted and that the distributors own their own trucks and hire helpers if needed are not controlling.4 The Employer's selection of, and control of, the scope of a distributor's district; its provision of trucking allowances in order to make poor districts more lucrative and desirable; its provision of liability insurance; its estab- lishment of the price at which its papers are to be sold; its assistance in solicitation of new outlets and subscribers which the distributor must service even to his detriment; its assistance in collections; its requirement of reports on distributors' expenses, including expenses relating to additional help hired by the distributors, and other reports; the advancement of credit for the purchase of papers; the acceptance of "returns"; the replacement without cost of Sunday color sections when lost, stolen, or destroyed; and the terminability of the contract on 1 day's notice, demonstrate a substantial measure of control over the means as well as the results of the distributors' work. Such factors, moreover, indicate that the distributors' compensation is not controlled primarily by the distributors' industry or efficiency in performing the American Broadcastting Company, 117 NLRB 13. Cbttizen-News Company, Inc, 97 NLRB 428; Albert Lea Cooperative Creamery Associa- tion, 119 NLRB 817, 1822. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work required under the contract, but is in substantial part affected by decisions and actions of the Employer. It is immaterial in our opinion whether this control is exercised by means of suggestions and requests as urged by the Employer rather than by direct orders, and is directed toward "cooperative assistance" in the fulfillment of the contract be- tween the distributors and the Employer. We are satisfied that the Employer has reserved the right to control, when and as it sees fit, the manner and means, as well as the result, of the distributors' work. We therefore find that the distributors are employees of the Employer.' Circulation salesmen are hired by the Company for the specific purpose of supervising and selling circulation in a given area and they are carried on the Employer's payroll. It is their duty to select the carrier boys to whom newspapers are delivered by the distributors, subject to the latter's approval. Just prior to the hearing, there were two instances where distributors refused to deliver to particular car- riers and the respective salesmen took over the routes until they could provide other carriers. Once signed to a lease by a salesman, a carrier then deals directly with his distributor. Whenever a carrier leaves, he turns over his subscription list to his salesman. However, the sales- men do not direct the carriers in the sense that they tell them what or what not to do. Rather, they serve more of a guidance role. The functions of circulation salesmen do not ordinarily extend to corner salesmen or storekeepers, although one salesman admitted that he had collected some store accounts at the request of a distributor. The Employer's only interest in the manner or means by which a carrier accomplishes his job is that the subscriber gets his paper. The foregoing evidence, while indicating that the circulation sales- men are charged with some leadership responsibilities, discloses that their direction of the work of carrier boys is routine in nature and does not require the use of independent judgment. In any event 5 'We do not believe our decision herein is inconsistent with the decision in P. G. Publish- ing Company, 114 NLRB 60 , as contended by the Employer . While there are of course similarities between the duties and relationships of the distributors in this and the P G. Publishing case, there are many dissimilarities . Thus, there is, here, no require- ment that distributors furnish in advance a cash deposit to cover the purchase price of papers Nor are they allowed to buy and sell their territories and subscription lists, or to select the carrier boys to whom they distribute papers , and for whose collections the Employer holds them responsible. Furthermore, the Employer's distributors , but not the distributors involved in the P . G. Publishing case, are required to pick up papers at their employer's loading dock , maintain records of expenses incurred in fulfilling their func- tions for submission to their employer , and to attend periodic sales meetings on the employer's premises Moreover , the employer furnishes them with paid-up liability in- surance for their trucks, and in most instances they are covered under the employer's group insurance programs As noted above, the resolution of the question whether an independent contractor relationship exists depends on the facts in the particular case. And while not necessarily decisive in every case , we believe the differences in the re- sponsibilities, duties, and benefits noted above, which in all instances point toward an employee status for the Employer's distributors, and an independent contractor status for the distributors involved in the P G. Publishing case, distinguish the instant case from the P G Publishing case. LOCAL 450, INT'L UNION OF OPERATING ENGINEERS 937 carrier boys are not employees of the Employer.6 Accordingly, and as the record clearly indicates that circulation salesmen do not exer- cise supervisory functions as to distributors, we find that they are not supervisors within the meaning of the Act. As for the Employer's. contention that the proposed unit is inappro- priate because circulation salesmen lack the same interests as dis- tributors, it is clear that the efforts of both groups of employees are directed toward the distribution and sale of the Employer's news- papers, and that they have sufficient interests in common to warrant their establishment in a single unit. Accordingly, we find that a unit of the following employees is appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All employees in the outside circulation department of the Em- ployer, including distributors and circulation salesmen ; but excluding independent contractors, office clerical employees, supervisors as de- fined in the National Labor Relations Act, guards, and professional employees. [Text of Direction of Election omitted from publication.] 6 Solar Electric Corporation, 128 NLRB 35 ; Lampcraft Industries , Inc, et al, 127 NLRB 92 Local Union No. 450, International Union of Operating Engi- neers, AFL-CIO [Proton] and Charles C. Hart, et al. Cases Nos. 23-CB-208, 23-CB-209, 23-CB-232, 23-CB-234, 23-CB-237, 23-CB-239, 23-CB-242, 23-CB-218, 23-CB-249, and 23-CB-256. December 15, 1960 DECISION AND ORDER On July 27, 1959, Trial Examiner Eugene K. Kennedy issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Local Union No. 450, International Union of Operat- ing Engineers, AFL-CIO, hereinafter referred to as the Union, had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed with respect thereto, There- after the General Counsel and the Respondent filed exceptions to the Intermediate Report. 129 NLRB No. 115.