Lindsay Newspapers, Inc.

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lindsay Newspapers, Inc. and Sarasota Printing Pressmen and Assistants' Union Local 565, International Printing Pressmen and Assistants' Union of North America, AFL-CIO Lindsay Newspapers, Inc. and Jack E. Cartlidge. Cases Nos. 1;?-CA-1108,12-CA-1109,12-CA-1110, and 12-CA-1150. Febru- ary 23, 1961 DECISION AND ORDER On June 29, 1960, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent, Lindsay Newspapers, Inc., had engaged in and was en- gaging 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. There- after the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record herein, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, with the modifications and additions indicated below. 1. We agree with the Trial Examiner that the interrogation of employees by Respondent's counsel constituted a violation of Section 8 (a) (1) of the Act. For, we are satisfied, as was the Trial Examiner, that by conducting these interrogations, the Respondent sought to interfere with, restrain, and coerce employees in their organizational rights, rather than to discover facts upon which the Board adminis- tratively might test the presence or absence of supervisory taint of the showing supporting the Union's representation petition. Thus, as the Trial Examiner notes, the inquiry made by the Respondent's counsel went far beyond that which might be deemed "privileged" for purposes of establishing supervisory taint.' For, inter alia, it ex- tended into the employees' own union activity and membership and was both preceded and succeeded by express indications of hostility toward the Union, including the discriminatory discharges of Gulsby, Cartlidge, and Frisbie, herein found violative of Section 8 (a) (1) and (3) of the Act. We conclude, accordingly, that by interrogating its employees about their union membership and activity and that of ' we do not adopt the Trial Examiner's opinion that the concept underlying the kind of inquiry held privileged in Joy Silk Mills, Inc, 85 NLRB 1263, 1288, enfd 185 F. 2d 732, 743, is inapplicable to representation proceedings However, as our conclusion with respect to the Respondent's purpose in conducting the inquiry precludes Respondent's effective assertion of a claim of privilege, we find it unnecessary here to decide the extent and nature of privileged inquiry in the representation case situation as presented here. 130 NLRB No. 74. LINDSAY NEWSPAPERS, INC. 681 other fellow employees, the Respondent has engaged in and is engag- ing in violations of Section 8 (a) (1) of the Act.' 2. We also agree with the Trial Examiner's finding that Gulsby was not a supervisor within the meaning of the Act,3 and that his discharge for union activities therefore constituted a violation of Section 8 (a) (1) and (3) of the Act. We also find, like the Trial Ex- aminer, that Gulsby's discharge was, inter alia, motivated by his testi- mony before the Board in the representation case, and that Respond- ent therefore also violated Section 8 (a) (4) of the Act.' 3. We also agree with the Trial Examiner that the Respondent dis- charged Cartlidge and Frisbie in violation of Section 8(a) (3) and (1) of the Act. The basic facts concerning the Respondent's discriminatory moti- vation for these discharges are not seriously disputed. Respondent's exceptions strongly urge, however, our reappraisal of the Respond- ent's basic defense to the alleged violations, namely, that its action as to both falls outside the interdiction of the statute because Cartlidge and Frisbie were allegedly independent contractors rather than em- ployees within the meaning of the Act, and that, in any event, both were allegedly supervisors within the meaning of the Act. For the reasons hereinafter set forth, we agree with the Trial Examiner's resolution of the issues posed by this defense. We turn, first, to Respondent's claim that these employees were in- dependent contractors. The principles determinative of this issue are clear. Thus, as the Board has frequently held, in determining the status of persons -alleged to be independent contractors, the Act re- quires the application of the "right of control" test.5 Where the person for whom the services are performed retains the right to con- trol the manner and means by which the result is to be accomplished, the relationship is one of employment; while, on the other hand, where control is reserved only as to the result sought, the relation- ship is that of an independent contractor. The resolution of this question depends on the facts of each case, and no one factor is determinative. The record shows that Cartlidge and Frisbie, identified as motor route carriers, perform for the Respondent the duties incidental to the sale and delivery of its newspapers to subscribers and other pur- chasers. Their relationship with the Respondent was created and 2 California Compress Company, Inc., 121 NLRB 1388, 1389, Atlas Engine Works, Inc, 129 NLRB 101 ; Bowmar Instrument Coi poration, 124 NLRB 1, 2, Michigan Scrap Com- pany, 124 NLRB 569, 574, 576 'Porto Rican American Sugar Refinery, Inc., 125 NLRB 384, 385, 380. Cousins Asso- ciates, Inc., 125 NLRB 73, 76 (shift managers) ; Sheraton-Jefferson Corporation, 125 1\ZRB 702, 703 United States Gypsum Company, 124 NLRB 416, 418, 419. The Wood- man Company, Inc, 119 NLRB 1784. 4 Cosco Products Company, 123 NLRB 766, 768. G Buffalo Courier-Express, Inc., 129 NLRB 932, and cases cited therein. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exists pursuant to an oral agreement or arrangement, terminable at will. It is true, as the Respondent points out, that certain aspects of the carriers' relationship to the Respondent tend to support a view of this relationship as being that possessed by independent contractors. Thus, the carriers pay a wholesale price to the Respondent for the newspapers and sell them at a retail price, the "gross profit" to the carriers being the difference between the two. The carriers are not reimbursed for expenses in connection with their work. They furnish their own vehicles and are responsible for their operation, mainte- nance, and insurance. They also purchase other necessary supplies in connection with the delivery of the papers. The carriers are re- sponsible for collections from subscribers. Any losses from uncol- lected amounts are borne by the carriers except that the respondent will replace a certain number of papers damaged or lost in delivery. The Respondent does not audit their books or require any particular system of bookkeeping. The carriers post a bond with the Respondent to protect a new carrier for obligations incurred by his predecessor. The Respondent makes no deductions for social security, withholding taxes, or unemployment compensation. The carriers are not covered by workmen's compensation. They receive no paid vacations, holi- days, or other benefits afforded those admitted to be employees. The carriers must furnish whatever help they require and pay such help out of their earnings. However, as the Trial Examiner points out, there are other aspects of the carrier's relationship to the Respondent which are inconsistent with an independent contractor relation and which evidence, rather, the existence of an employer-employee relation. For the Respondent reserves and exercises the detailed control over the routes, and the method of servicing them, and, in the exercise of its reserved rights, substantially determines and limits the amount which the carriers may earn. Thus, the Respondent selects and controls the scope of a motor carrier's territory. It, alone, establishes the price at which the papers are to be bought and sold. It assists in obtaining new sub- scribers. It requires that certain subscribers be serviced whether or not the carrier wishes to do so. It insists that delivery be made to paper tubes despite the carriers' objections to this method on grounds that it increases the carriers' cost of operation. It requires papers be waxed under certain weather conditions or folded in a manner indi- cated by the Respondent. It accepts "returns." It replaces a certain number of papers lost in delivery. It refuses to allow the carrier to bill his subscribers as he sees fit. It requires that a carrier make pay- ments by depositing the amounts owed the Respondent directly to the latter's bank account. It retains payments made by subscribers for more than 3 months in advance (thus depriving the carrier of the LINDSAY NEWSPAPERS, INC. 683 use of such funds). It insists that it pass on the qualifications of cer- tain helpers or subcarriers and it has required that a carrier discharge a helper unsatisfactory to it despite the fact that the carrier did not wish to do so. Finally, Respondent precludes its carriers from deliv- ering any other publication or holding any other job, and, as noted above, Respondent has terminated the relationship at its will. In appraising all the foregoing facts, we are convinced, as was the Trial Examiner, that factors indicative of an employer-employee rela- tionship are "sufficiently countervailing to outweigh other aspects of their relationships with Respondent which might indicate independent contractor relationship." For we are satisfied that the Respondent has reserved the right to control, when and as it sees fit, the manner and means, as well as the result of the motor carriers' work. We find, therefore, in agreement with the Trial Examiner, that motor carriers are employees of the Employer.' As noted above, it is the Respondent's further contention that motor carriers are supervisors. This is based solely on the fact that they hire and discharge their helpers or as they are sometimes called subcarriers. For the reasons set forth in Buffalo Courier-Express, supra, where we considered a similar contention, we find this claim to be without merit. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Lindsay News- papers, Inc., Sarasota, Florida, its officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Discouraging membership in and activities on behalf of Sara- sota Printing Pressmen and Assistants' Union Local 565, Interna- tional Printing Pressmen and Assistants' Union of North America, AFL-CIO, or in any other labor organiaztion of its employees, by dis- charging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to hire or tenure of employment, or any other term or condition of employment. (b) Interrogating employees regarding their union membership or activities in a manner constituting restraint and coercion within the meaning of Section 8 (a) (1) of the Act, or in any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form or assist labor organizations, to join or assist Sarasota Printing Pressmen and Assistants' Union Local 565, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, or any other labor organization, to 6 Buffalo Courier-Empress, Inc., supra. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain collectively through representatives of their own choosing,, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to John A. Gulsby, Jack E. Cartlidge, and Myra Frisbie immediate and full reinstatement to their former or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against therm. as provided in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right to reinstatement under the terms of this Decision and Order. (c) Post at its plant in Sarasota, Florida, copies of the notice at- tached hereto marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 7In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in or activities on behalf of Sarasota Printing Pressmen and Assistants' Union Local 565, LINDSAY NEWSPAPERS, INC. 685 International Printing Pressmen and Assistants' Union of North America, AFL -CIO, or any other labor organization, by dis- charging or refusing to reinstate any of our employees or in any other manner discriminating against our employees in regard to their hire and tenure of employment, or any term or condition of employment. EVE WILL NOT coercively or unlawfully interrogate our em- ployees regarding their union membership or activities. IVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Sara- sota Printing Pressmen and Assistants' Union Local 565, Inter- national Printing Pressmen and Assistants' Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, and to re- frain from any or all such activities. WE WILL offer to John A. Gulsby, Jack E. Cartlidge, and Myra Frisbie immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their senior- ity and other rights and privileges, and will make them whole for any loss of earnings suffered as a result of the discrimination against them. All our employees are free to become or to refrain from becoming or remaining members of Sarasota Printing Pressmen and Assistants' Union Local 565, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, or any other labor organization. LINDSAY NEWSPAPERS, INC., Employer. Dated---------------- 13y------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by Sarasota Printing Pressmen and Assistants ' Union Local 565, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, herein called the Union, and Jack E. Cartlidge, the General Counsel of the National Labor Relations Board, by the Regional Director for the Twelfth Region (Tampa, Florida), issued his consolidated complaint dated September 30, 1959, against Lindsay Newspapers , Inc., herein called the Company, and on Decem- ber 2, 1959, amended the complaint . In substance the amended complaint alleges that on or about July 20 and 23, 1959, the Company did discriminatorily discharge Jack E. Cartlidge, Myra Frisbie, and John A. Gulsby because of their membership in and activity on behalf of the Union , in violation of Section 8 (a) (3) and (1) of 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Act, 61 Stat. 136, herein called the Act, and discharged Gulsby because of his testimony in a Board representation proceeding, in violation of Section 8(a)(4) and (1) of the Act. The amended complaint further alleges that the Company, through its attorneys, interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act, by interrogating and taking sworn statements from the Company's employees concerning their union activities during the Union's organizational campaign. The Company's answer denies the commission of unfair labor practices, admits that the Company discharged John A. Gulsby, Jack E. Cartlidge, and Myra E. Frisbie because of their membership in and activity on behalf of the Union, and denies that Gulsby was discharged because of his testimony in the Board representa- tion proceeding. The answer further alleges that Gulsby is a supervisor and Cartlidge and Frisbie are independent contractors, and, therefore, are not employees within the meaning and protection of the Act. Alternatively, the Company's answer alleges that assuming that Cartlidge and Frisbie were employees of the Company, they were supervisors of the Company within the meaning of Section 2(11) of the Act. Pursuant to notice, a hearing was held before me in Sarasota, Florida, on Decem- ber 14, 15, 16, 17, 18, and 19, 1959. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence pertinent to the issues. The General Counsel and the Respondent have filed briefs and reply briefs which I have fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Company, a Florida corporation whose principal place of business is located in Sarasota, Florida, is engaged in the publication of a morning and evening news- paper. The Company's gross revenue from the sales of said newspaper is in excess of $200,000 annually. On the foregoing admitted facts, I find that the Company is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION The parties stipulated that Sarasota Printing Pressmen and Assistants' Union Local 565, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Union's organization of the Company's mailroom employees and motor route carriers The Company is the publisher of two newspapers, the Sarasota Journal, an after- noon newspaper, and the Sarasota Herald-Tribune, a morning newspaper. It em- ploys about 150 persons, about 29 or 30 of whom are employed in the circulation department of which John W. AID, the Company's circulation manager, is the head. The mail or distribution room in which Gulsby, one of the alleged discriminatees, was employed by the Company, is a part of the circulation department. The Company employs about six full-time employees in the mailroom and some addi- tional part-time employees on Sunday mornings for wrapping Sunday papers for mail delivery. The latter operation is called stuffing. In the spring of 1959, the Union commenced a campaign to organize the em- ployees of the mailroom and the adult carriers who deliver the Company's morning newspaper to subscribers' homes by automobile. The latter will be referred to herein as the motor route carriers. Gulsby was the most active proponent of the Union in the mailroom. He acted as liaison between the mailroom employees and William B. Curry, the Union's International representative, obtained union authoriza- tion cards from the Union, solicited mailroom employees to sign the cards, and acted as spokesman at union meetings. Similarly, Cartlidge and Frisbie were active in sponsoring and advocating the Union among the adult motor route carriers who deliver the Company's morning paper to subscribers' homes. On June 5, 1959, the Union filed an RC petition (Case No. 12-RC-631, not published in NLRB volumes) requesting certification for a unit of employees de- LINDSAY NEWSPAPERS, INC. 687 scribed as "all employees of the mailing room, mailers and mailers' helpers." A hearing on the petition was held on June 22, 1959. The Company was represented at the RC hearing by the same counsel as those in this proceeding and contended that the unit alleged in the petition was inappropriate and that the only appropriate unit would be one of all the employees of the entire circulation department of the Company. Gulsby testified at the RC hearing on behalf of the Union. In further- ance of its contention that a unit limited to employees of the mailroom was in- appropriate, the Company presented testimony at the RC hearing showing the close integration of all of the employees of the circulation department. At that hearing, Circulation Manager Am testified that the only two supervisors in the mailroom were Robert Parks for the afternoon paper and Max Linn for the morning paper.' Although, as aforestated, Gulsby testified for the Union, there was no suggestion by the Company at the RC hearing that he was a supervisor. On the contrary, the questions of company counsel and Am's answers thereto suggest that he was then regarded by the Company as just another employee in the "distribution" [mail] room." 2 B. The Company's hostility to the Union According to the uncontroverted and credited testimony of mailroom employees Clifford K. Phillips and Linzy Leo Clark, a day or two after the RC hearing in Case No. 12-RC-631, about 15 to 20 employees of the Company were assembled at the Company's plant and were addressed by the Company's president and pub- lisher, David Lindsay, Jr. Lindsay told the assembled employees that he knew that union activity was "going on," that a union was unnecessary and inappropriate in the Company's circulation department, that he had no intention of having a union in the circulation department, that he would fight the Union in any court in the country, that any employee who was not satisfied with the Company and wanted to walk out could leave without "notice" to the Company, that no one was indis- pensable, and that the Company could get the paper out with or without any par- ticular group of employees.3 On the foregoing uncontroverted record, I find that the Company was hostile to and actively opposed to the organizing efforts of its employees. On June 29, 1959, the Union filed a second RC petition seeking certification as the collective-bargaining representative of the "motor route carriers." 4 C. The Company's interrogation of employees On July 15, 1959, some of the Company's mailroom employees, including Clifford K. Phillips, Linzy Leo Clark, and Kenneth E. Kerschner, were interrogated under oath by Respondent's counsel, Granville M. Alley, Jr., in the Company's conference room. These interrogations were recorded by a court reporter who administered the oath to the employees. The transcriptions of the interrogations of Phillips, Clark, and Kerschner reveal that on this occasion, these employees were questioned niter alga, regarding their knowledge and opinion of Gulsby's duties and alleged super- visory status in the Company's mailroom. On July 20, 1959, Kerschner, Clark, and Phillips were again questioned under oath in the Company's office, this time by Respondent's counsel, Paul A. Saad. The transcript of these interrogations discloses that these employees were questioned regarding who started the Union' s organizing campaign in the mailroom, who passed out union pamphlets and authorization cards, the extent to which each of these employees participated in passing out union authori- zation cards and advocacy of the Union, whether everybody in the mailroom signed the cards, how and by whom they were notified to attend union meetings, where the meetings were held and who presided thereat, whether they had been to the union hall, and the part that Gulsby played in the organizational campaign of the Union. The interrogations revealed that Gulsby initiated and was the principal espouser and advocate of the Union among the mailroom employees. 1 Transcript in Case No. 12-RC-631, pp. 93, 160. 2 RC transcript, p. 97, lines 13-25 'The foregoing speech by President Lindsay is not alleged in the complaint as a viola- tion of Section 8(a) (1) of the Act, but was offered and received for the limited purpose of showing the Company's hostility to the Union's organizational efforts and the context in which the later interrogation of employees by Respondent's counsel, which is alleged as an unfair labor practice, occurred. 'Case No 12-RC-653 A hearing on that petition was commenced on July 22 and 23 but the petition was subsequently withdrawn by the Union on July 31, 1959 ,688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The discharge of Cartlidge, Mrs. Frisbie, and Gulsby for union activity On July 16, 1959, Respondent's counsel, Granville M. Alley, Jr., questioned Carthdge and Mrs. Frisbie under oath at the Company's office regarding the operation of their motor routes and their opinion as to whether they were "independent con- -tractors" or "employees." On July 20, 1959, Cartlidge was visited at his home by George W. Bauer, Respondent's business manager, Circulation Manager Am, and by Respondent's Counsel Saad. Am told Cartlidge that his "contract" with the Company was terminated as of "right now" because of his union activity and for talking against the Company. Cartlidge asked "what contract," and was told it was "an understood contract." Carthdge then asked, "Well, I suppose you are going to fire Mrs. Frisbie, too," and Respondent's Counsel Saad replied, "That is none of your business." Later that afternoon, Mrs. Frisbie received a telephone call from Am and the latter told her that her "contract" with the Company had been termi- nated because of her union activities. On July 23, 1959, Gulsby was called up to the Company's conference room and was told by Am, in the presence of Respondent's Counsel Saad, that his services were no longer needed. The next day, the Company sent Gulsby a letter, signed by Am, which stated: "The Company has terminated your employment because of your participation in union activity while a supervisor of the Company." E. The alleged supervisory status of Gulsby The Company contends that Gulsby's discharge for union activities does not violate Section 8(a)(3) of the Act, because Gulsby was a "supervisor" within the meaning of the Act and, therefore, was not an "employee" within the protection of the Act. This contention is based on the fact that Gulsby was "in charge" of the mailroom on Sunday nights of each week when the regular night foreman, Max Linn, was off and when Linn was on vacation. In order to properly determine the issue of Gulsby's alleged supervisory status, it is important to understand, inter alia, the nature of the work performed in the mailroom. The function of the mailroom is to receive the newspapers as they come from the press by conveyor, to count and bundle them and tie the bundles, to stack the bundles and load them into trucks or cars, and to deliver the bundles by truck and/or auto- mobile to various newsstands, stores, newspaper racks, and to locations where the carriers, principally the newsboys, pick them up for subsequent home delivery to subscribers.5 In addition, mailroom employees also roll and "stuff" newspapers into wrappers for mailing to out-of-town subscribers and deliver the papers to the post office. The number of papers which go into the bundles is determined by a "draw sheet" prepared by the office clericals. The bundles are tied in wrappers which designate the number of papers which go into the bundle and the route number or letter to which the bundle belongs. None of the operations in the mailroom requires any particular skill or mental dexterity. New employees in the mailroom were usually taught how to perform the various operations by other employees and the time required for training was generally a matter of a week or two. All of the mailroom employees can and usually do perform at one time or another all of the operations in the mailroom. The specific tasks of each employee who worked in the mailroom on the night shift in connection with the distribution of the morning paper was fixed by a schedule prepared by Circulation Manager Am in collaboration with Night Foreman Max Linn. The main purpose of the schedule was to equalize the number of hours worked by the mailroom employees. With minor exceptions, the mailroom employees worked both in the afternoon getting out the Sarasota Journal and in the early morning hours in connection with the like distribution of the Sarasota Herald-Tribune. Night mailroom employees occasionally "swapped" assignments within the plant without the intervention of the foreman in order to relieve the boredom of the continuous performance of a particular task. Mailroom employees also assisted each other on occasion when such help was necessary. Essen- tially, the work of the mailroom at night was a team effort by a group of young men in their early twenties "to get the newspaper out" promptly. Gulsby was hired by Circulation Manager Am as a mailroom employee in Novem- ber 1957. Gulsby was taught by Linn, who was then a rank-and-file mailroom employee, to fly the press, tie and stack bundles, roll and stuff the mail, deliver bundles to newsboys and racks, and to clean up. In the fall of 1958, Gulsby was asked by Linn, who was then night foreman of the mailroom, to learn Linn's extra duties and to take his place while Linn took a 2-week vacation. The extra duties consisted of coming in early, getting the draw sheets from the office, preparing the 5 Most of the motor route carriers pick up their bundles of newspapers at the Company's plant. LINDSAY NEWSPAPERS, INC. 689 wrappers for the bundles, stamping names of subscribers on mailing wrappers with an addressograph machine, unlocking the trucks and recording their mileage, record- ing the starts and stops of press runs and the time of conclusion , delivering tear sheets to advertisers , and checking at homes from which complaints had been received on the previous day to see whether the papers had been delivered that day. Gulsby agreed to take on the additional duties during Linn's vacation in September 1958. He received no extra compensation for this additional work other than at his regular rate for the number of hours actually worked. This was the same rate which was paid to all regular mailroom employees.6 Linn did not discuss with Gulsby what authority, if any, Gulsby would have during Linn's vacation and told him only that Gulsby would have the responsibility of "getting the paper out." Linn told Gulsby to call Arn if any trouble arose in the mailroom during his vacation. After Linn returned from his vacation, Circulation Manager Arn discussed with Gulsby the subject of Gulsby substituting for Linn on a regular basis on Sunday nights, Linn's night off.7 Arn did not at this time or thereafter tell Gulsby that he would be a supervisor nor did he tell Gulsby what authority he would have on Sunday nights. However, Arn did tell Gulsby that he would have additional respon- sibility and that he would be "in charge" of the mailroom on Sunday nights. No title was assigned to Gulsby. He continued to work at the same hourly rate of pay as all other employees in the mailroom and to fill out a timecard for the hours he actually worked However, Arn agreed to give Gulsby 2 additional hours of pay each week if Gulsby did not tell the other mailroom employees about it. In actual practice, Gulsby did not always receive this additional compensation because, on a number of occasions, Arn omitted adding the extra 2 hours. According to Arn, the reason for the omission was sometimes because the press of other work caused him to forget, and on other occasions because Gulsby had earned more money that week than usual as a result of additional hours actually worked by him. Subsequently, in May 1959, the additional compensation for Gulsby's alleged supervisory status was cut off completely when he was given an additional delivery run which added to the number of hours he worked each week. The record of earnings of the mailroom employees 8 shows that Gulsby's earnings were frequently less than other rank-and- file employees. The regular night foreman, Max Linn, was paid on a fixed weekly basis, originally $75 per week and later increased to $80 per week. According to Gulby's credited testimony, Arn instructed Gulsby to call him for a replacement if any mailroom employee was absent. Gulsby was also instructed by Arn to call him if anything out of the ordinary arose. Accordingly, if anyone was absent or the press was running late, Gulsby called Arn and Arn would arrange for additional help to assist in getting the paper out. Arn called Gulsby practically every Sunday night Moreover, Linn usually dropped by the plant for a few minutes on Sunday nights to pick up a paper and to check on how the mailroom was working. No authority was given to Gulsby to change the established schedule without prior consultation with Arn. None of the extra duties which Gulsby performed on the night Linn was off were supervisory in nature,9 and in the afternoon, these duties generally were performed by nonsupervisory employees. While Gulsby was out of the plant for about 11/z to 13/4 hours in connection with some of the extra duties, there was no one "in charge" in the mailroom .is On occasions when the press was running late, Gulsby also called Arn for approval before "breaking the runs." ii According to Gulsby's credited testimony, his only authority was to see that the other boys did their work and to advise Arn if they did not do so. Gulsby admittedly had no authority to hire or fire or to recommend hiring or firing. Ac- cording to Arn, Gulsby's only disciplinary authority was to send a boy home for the night if the boy behaved improperly. If that authority existed, it was never exercised by Gulsby. Since I credit Gulsby's testimony regarding the limited authority re- posed in him, I conclude that Gulsby's authority did not include sending a boy 6 The rate was originally $1.10 per hour and was subsequently raised to $1 30 per hour for all mailroom employees. 7 Prior to this, the mailroom employees had worked 7 days per week. 8 Respondent's Exhibit No 27 9 See p. 688, lines 62 and 63, and top 5 lines of p 689 10 During this period, the other mailroom employees usually finished their work and went home 11 The term "run" as used in this case means the route followed by mailroom employees to deliver bundles to various newsstands and carrier locations. The term "breaking the run" means dividing up between two employees , a bundle delivery route normally per- formed by one employee 597254-61-vol 130-45 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home, but only to report to Arn.12 Circulation Manager Arn admitted that in the hearing in Case No. 12-RC-631, he was asked who the supervisors were in the mailroom and named only Linn for nights and Parks for days and that he did not include Gulsby as a supervisor in his testimony . Arn offered no explanation for his failure to name Gulsby as one of the supervisors in that testimony . Arn ad- mitted in the instant hearing that Gulsby's job did not change between June 22, 1959, the date of the RC hearing, and July 23, 1959, the date of Gulsby's discharge. In this regard , I regard as significant the fact that on July 20, 1959, the date of Gulsby's discharge, Respondent's counsel's interrogation of the mailroom employees disclosed that Gulsby was the principal espouser of the Union among the mailroom employees. On the entire record , I am persuaded and find that Gulsby was an employee of Respondent and not a supervisor . I base this conclusion on the following considerations: 1. Gulsby was at no time told by Arn or any other company official that he was a supervisor or that he had any specific authority on the 1 night a week he was "in charge" of the mailroom . Respondent , moreover, admits that "Gulsby did not have authority to hire or fire, to promote or reward employees or to lay off or recall them." 13 2. The work performed in the mailroom was routine in nature and each em- ployee's job was fixed by a schedule in whose making Gulsby had no part. Em- ployees in the mailroom knew their jobs and their assignments and required little, if any, direction. 3. Gulsby was not empowered to deviate from the schedule without calling Arn for prior authorization . If employees who were scheduled to work were late or absent or the press was running late, Gulsby had to call Arn for additional help. 4. Close check was kept by Arn and Linn on the work of the mailroom on the night Gulsby was "in charge" by telephone calls from Arn and by visits from Linn. 5. None of the extra duties performed by Gulsby on Sunday nights were-of a supervisory nature and most of these duties were performed by nonsupervisors on the afternoon shift. 6. Gulsby also performed all of his regular duties on the nights he was "in charge." 7. Gulsby was not paid a salary for his allegedly supervisory work but was paid on an hourly basis at the same rate per hour as all the other admittedly nonsuper- visory employees . In contrast , the admitted Supervisor Linn was paid a fixed weekly salary. 8. Although for a time Gulsby was irregularly given 2 extra hours of pay for his allegedly increased responsibility on the night he was "in charge," the extra pay was not given if Gulsby's pay was larger than normal because of extra hours worked by him, and sometimes was not given because Arn forgot to add the 2 hours to Gulsby's timecard because of the press of other duties Significantly, Gulsby re- ceived no extra compensation for allegedly supervisory work during the 3 months preceding his discharge by Respondent. Moreover, during the period when Gulsby was allegedly a supervisor, admittedly rank-and-file employees in the mailroom fre- quently earned more than Gulsby. 9. The principal authority which Respondent contends was reposed in Gulsby, "to transfer and assign employees . when he was in charge of the mail room," 14 consisted primarily of requesting other employees to assist him or other employees in their tasks, and in "breaking the runs" by assigning two employees to deliver a single run . When the press was late, however, other rank-and -file mailroom em- ployees also frequently requested assistance and assisted each other and even "swapped" tasks without asking Gulsby for permission and all of them, including Gulsby, worked together as a "team." Moreover, the manner in which and when the runs should be broken was not a matter left to Gulsby's discretion but was sub- ject to the control and direction of Arn, who told Gulsby how the runs were to be broken and to whom assignments should be made. 10 Finally, and most significantly, I regard the testimony of Arn in the hearing in Case No 12-RC-631 in which the question of the mailroom unit was directly involved and in which Arn named Parks in the afternoon and Linn at night as the only supervisors, as conclusive evidence and an admission, that Respondent did not regard Gulsby as a supervisor until after it learned that he was the principal advocate of the Union in the proposed mailroom unit.15 12 Foreman Linn, on the other hand, had authority to discipline mailroom employees, and, on one occasion , sent employee Danny Mills home "for good." 13 Respondent's brief, p 68 14 Respondent's brief, p 68. 151 reject as implausible and unworthy of credence, Respondent's attempted explanation for the failure of Arn to name Gulsby as a supervisor in his testimony in the RC hear- LINDSAY NEWSPAPERS, INC. 691 For all of the foregoing reasons, I find and conclude that Gulsby possessed no authority responsibly to direct employees and that such limited authority which he did possess was merely the routine passing on of instructions received by Gulsby from Arn and Linn 16 Gulsby's lack of authority, his pay on an hourly basis, his routine following of the schedule prepared by Arn and Linn on the nights he was "in charge," his lack of title or designation as a supervisor,17 the requirement that he called Arn for re- placements or in the event of emergency, and the other factors outlined hereinabove, persuade me that Gulsby's status is akin to that of Mitchell Pietruskiewicz in the Board's decision in Tube Distributors Co., Inc.,18 and Owen in The Woodman Com- pany, Inc. case.19 I do not regard the California-Spray Chemical Corp. case 20 as applicable to the facts in this case because of the close supervision of the mailroom by Arn and Linn even on the nights Gulsby was "in charge" and because Arn was as close as the telephone to any problem which arose. Respondent's answer alleges, inter alia, as a "Sixth Defense," that it discharged Gulsby because of his activity on behalf of the Union on company time and property. No testimony was adduced by Respondent that it had any rule prohibiting such con- duct. Moreover, the record discloses that the work of the employees in the mailroom is sporadic and keyed to the operation of the press and that there are frequent periods when the presses do not run, during which the employees are permitted to sleep, leave the premises to purchase smokes, and to engage in conversations regard- ing all manner of subjects. Such periods are included in the working time for which employees are paid. Under the foregoing circumstances and in the absence of a rule prohibiting such conduct, I find and conclude that the fact that Gulsby engaged in union activities on company time and premises was not misconduct justifying Gulsby's discharge, and that by firing Gulsby therefor, Respondent discriminated against Gulsby and thereby discouraged membership in the Union and engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. As noted above, on July 15, Respondent's Counsel Alley interrogated employees concerning, inter alia,_their knowledge and opinions regarding Gulsby's supervisory status. Since the extent of Gulsby's authority was a matter peculiarly within Respondent's knowledge, the questioning of employees regarding this subject obvi- ously was wholly unnecessary, unless, as I conclude, it was for the object of estab- lishing a legal defense to the contemplated discharge of Gulsby21 Since the extent of Gulsby's participation in obtaining the Union's sharing of interest was not re- vealed to Respondent until its later July 20 interrogations, I am, therefore, persuaded and find that Respondent, on July 15, was motivated to engage in its interrogations by Gulsby's testimony before the Board in the representation hearing and that its subsequent discharge of Gulsby was, inter alia, motivated by that testimony. Ac- cordingly, I conclude that by discharging Gulsby Respondent also violated Section 8(a)(4) of the Act. ing, that Respondent's counsel had only a short time for preparation for that hearing. Arn obviously knew whether or not he had reposed supervisory authority in Gulsby and if he regarded Gulsby as a supervisor at that time, Arn could so have testified without preparation in the same manner and at the same time that he named Parks and Linn as the only supervisors. Moreover, since Gulsby was the only witness who testified on behalf of the Union in the RC hearing, the failure of Arn to name Gulsby as a supervisor was obviously not merely oversight. The obvious implication of Arn's testimony in the RC hearing, as I have found above, was that Arn did not then regard Gulsby as a supervisor 10 As aforestated, a number of mailroom employees were interrogated- by respondent's counsel concerning Gulsby's duties and their opinions regarding his alleged supervisory status. Some of these employees testified regarding that subject in the instant proceed- ing. In some instances, the testimony of these employees on this subject, as expressed in their interrogations, was not consistent with their testimony herein. Since the record is clear that the nature and extent of Gulsby's authority was a matter concerning which the mailroom employees had little or no direct knowledge, I have placed no reliance on their opinions expressed on either occasion, and have based my findings exclusively on direct testimony. 17 In the absence of the alleged telephone list, I reject, as without probative value and unworthy of belief, the testimony that Gulsby's name on a telephone list in the mailroom had the designation of assistant supervisor alongside his name. On the contrary, General Counsel's Exhibit No 3, a telephone list admittedly used during the period in question, did not even contain Gulsby's name 19 112 NLRB 296, 298. 19 119 NLRB 1784, 1787. 20 86 NLRB 453 21 See section C, supra. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The interrogation of employees by Respondent 's counsel As detailed above, in July 1959 , Respondent's counsel, Alley and Saad, extensively interrogated the Company 's employees regarding, inter aka, the union activities of the mailroom employees . The Respondent contends that this interrogation does not violate Section 8 (a) (1) of the Act because it was necessary to bring to the Board's attention, the fact that Gulsby, an alleged supervisor , had actively partici- pated in securing the Union 's showing of interest in Case No. 12-RC-631. In this connection, Respondent relies primarily upon the Board 's decision in Georgia Kraft Company,22 which established the rule that the Board would no longer permit "litigation" of supervisors' union activities in a representation hearing. The Re- spondent's argument, based on that decision , is that when the Board relegated the subject of supervisory participation to "administrative investigation . . . by the Board," it thereby inferentially licensed the employer to investigate that issue by interrogation of employees . The Respondent's further argument on this aspect of the case is that the rule of the Georgia Kraft case, read in conjunction with the line of cases dealing with a respondent's preparation for trial to defend against un- fair labor practice charges,23 constitutes a complete defense to the action of its two lawyers in interrogating the employees. I find no merit in the Respondent's reliance upon either the Georgia Kraft case or the analogy to the unfair labor practice cases. The question before the Board in Georgia Kraft was whether the hearing officer had properly refused to "receive evi- dence" offered by the employer and it ruled that such evidence or proof had properly been rejected, but could instead be brought to the Board's attention to be "investi- gated only administratively." The substance of the rule of that case was that in- stead of presenting any evidence it might have in the course of the representation hearing, the employer would have the opportunity , if it so chose, to bring whatever proof or evidence it did have to the Regional Director for collateral investigation. The Georgia Kraft case had nothing to do with the questioning of witnesses to ex- plore the possibility that there might have been supervisory participation in the Union, or with any right or privilege of an employer to engage in broadside interro- gation of its employees based on any suspicion or hope that the resultant information would show such supervisory conduct. The question presented in the instant case is not in what manner or in what forum the Respondent could properly use any evidence that chanced to come into its possession , but whether or not there is any decisional precedent to excuse the clearly unlawful interrogation committed by its attorneys under the guise of seeking to find evidence on the subject . I hold that the decision in Georgia Kraft cannot so serve and created no license for Respondent to engage in a "fishing expedition" for evidence with which to attack the Union 's repre- sentation proceeding. The Respondent's further contention, bottomed upon as asserted analogy to a lawyer's preparation to defend against unfair labor practice charges, presents, not a parallel, but rather a significant distinction . In those cases,24 employers ' attorneys questioned employees on matters pertinent to defenses they were called upon to make in imminent trials wherein their clients were charged with unlawful conduct. Although recognizing that interrogation of employees concerning union activities, even in the limited context of a specific defense prepared by an employer in a com- plaint case, brings a coercive effect to bear upon the employees and therefore consti- tutes a literal violation of Section 8(a)(1) of the Act, the Board and the courts thought it wise to accommodate the conflicting equities of the employer and the employees in such a situation and to permit such interrogation . The underlying justification for the precise license thus granted to interrogate employees , is well stated in the opinion of the court of appeals in Joy Silk Mills, supra, at page 743: An employer may question his employees in preparation for a hearing but is restricted to questions relevant to charges of unfair labor practices and of suffi- cient probative value to justify the risk of intimidation which interrogation as to union matters necessarily entails; and that even such questions may not be asked where there is purposeful intimidation of employees . Such a standard 22120 NLRB 806. -May Department Stores, a corporation , d/b/a Famous-Barr Company, 70 NLRB 94; The N & W Overall Company, Inc., 51 NLRB 1016 ; Richard F. Kline, 39 NLRB 1047; Babcock & Wilcox Company, 108 NLRB 1622 , 1631-1632 ; Joy Silk Mills v. NLRB., 185 F 2d 732 (C.A.D.C.) ; and C W Partee, d/b/a Partee Flooring Mill, 107 NLRB 1177; cf. N.L.R.B. v. Katz Drug Co., 207 F. 2d 168 (C.A. 8). 24 See footnote 23, supra. LINDSAY NEWSPAPERS, INC. 693 assumes that interrogation of employees concerning their union activities, is, of itself, coercive, but that fairness to the employer requires that a limited amount of such questioning may be permitted despite the possible restraint which may result. The Respondent here was not faced with any unfair labor practice charges when its attorneys questioned the employees. If anything, it appears that the questioning in this case looked to the commission of the later acts which are charged herein as illegal. There was no equitable right in the employer at the time, which, in the in- terests of "fairness," required even momentarily, precedence over the fundamental right of the employees to be free of unwarranted restraint and coercion. Absent any countervailing consideration to weigh against the coercive effect of the interro- gations in the total picture of this case, all that remains is that Respondent's counsel probed deeply into the entire question of the union activities of the employees in the mailroom. In the climate of union hostility which existed in this case, as evidenced by the belligerent speech of Respondent's president and publisher, Lindsay, any interrogations of employees regarding their union activities was necessarily coercive and interfered with employees' rights 25 I therefore hold that the interrogation in the instant case, even for the alleged limited purposes asserted by Respondent, was not permissible and violated Section 8(a) (1) of the Act. Moreover, even assuming that Respondent had a right to engage in limited in- terrogation of employees for the purpose of bringing to the Board's attention, super- visory participation in union activities, I would nevertheless regard the interrogation in the instant case as coercive because of the nature of the interrogation which was conducted. Obviously, Respondent had no need to question any of its employees with respect to Gulsby's alleged supervisory status since that status was predicated on the extent of the authority which Respondent's officials had reposed in Gulsby, a matter peculiarly within the knowledge of Respondent and not of the mailroom employees. Moreover, the interrogations which were conducted by Respondent's Counsel Saad on July 20, 1959, did not purport to be limited to the nature and extent of Gulsby's participation in the Union An examination of the transcripts of the interrogations conducted on July 20 reveals that Respondent's counsel engaged in general interrogation regarding who started the union movement in Respondent's mailroom, who constituted the Union's organizing committee, who distributed union authorization cards, how many employees signed the union cards, what the em- ployees understood the cards to mean, what was done with the cards after they were signed, and when, where, and how union meetings were called and held and who participated therein. In view of the unlimited nature of these interrogations, I re- gard the assertion of Respondent regarding the alleged purpose of the interrogations as pretextual,26 and conclude that the true objective of the questioning was to estab- lish, to the extent possible, a legal defense for the discharge of Gulsby which Re- spondent contemplated because of his union activities and testimony at the repre- sentation hearing. The fact that such interrogations were conducted under oath and were recorded by a reporter and the fact that these interrogations were con- ducted on behalf of an employer whose hostility to the Union had already been dis- closed to the employees by Mr. Lindsay's speech, leaves no room for doubt that the interrogations necessarily intimidated the employees in the free exercise of their right to engage in concerted activities. If any doubt did exist with respect to the coercive effect of the interrogations, it is completely removed by an examination of the in- terrogation of employee Kerschner, who, during the course of the interrogation by Respondent's Counsel Saad, stated that he wished he "had never gotten into [the Union]." I therefore find and conclude that the Respondent, by the interrogation of employees by its counsel, interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by the Act and thereby committed unfair labor practices within the meaning of Section 8(a) (1) of the Act. G. The nature of the relationship between Cartlidge, Mrs. Frisbie, and the Company As detailed above, Cartlidge and Mrs. Frisbie were discharged for union activities on July 20, 1959, shortly after they had been interrogated by Respondent's Counsel Alley about their duties as motor route carriers and their opinions as to whether they were independent contractors or employees. Respondent contends that these dis- charges do not violate Section 8(a)(3) and (1) of the Act on the ground that Cartlidge and Mrs. Frisbie are "independent contractors" and, therefore, not "em- as Of. Blue Flash. Express, Inc., 109 NLRB 591. 20 See Joy Silk Mills, supra. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees" protected by the Act. An analysis of their jobs is, therefore, necessary for the resolution of this issue. Cartlidge applied to and was engaged by Respondent as a motor route carrier in March 1951, and Mrs. Frisbie, in June 1952. Their jobs required them to pick up bundles of the Company's morning newspaper, the Sarasota Herald-Tribune, at Respondent's plant and to deliver them by automobile to the homes of customers or subscribers within a geographical area allotted to them by Respondent.27 Neither Frisbie nor Cartlidge was required to sign , or ever signed, a written agreement with Respondent 28 They paid nothing for their routes, either to the carriers who pre- ceded them on the routes or to Respondent. As instructed by Respondent, Cart- ledge and Mrs. Frisbie rode with their respective predecessors for a period of about 2 weeks to learn the nature of their duties and the route . For this they received no compensation.29 The basic compensation of Cartlidge and Mrs. Frisbie for their services was the difference between the wholesale rate charged for their papers by the Respondent and the retail rate which they collected from the subscribers on their routes.30 Both rates were fixed by the Company and neither Mrs. Frisbie nor Cartlidge were per- mitted to deviate therefrom.31 During most of the period during which they de- livered Respondent's newspapers, She wholesale rate charged to Cartlidge was 1 cent per paper less than that charged to Mrs. Frisbie and the other motor route carriers. Both the wholesale rate to the carriers and the retail rate for subscribers were uni- laterally changed by Respondent on three occasions during the 8 years that Cartlidge worked for Respondent. On the last rate rise, the wholesale rate charged to Cart- lidge was increased to that paid by the other motor carriers. Neither Cartledge, nor Mrs. Frisbie, nor any of the other motor carriers were consulted in advance in respect to any of the rate changes, including that in which Cartlidge's differential was eliminated. Payment for the papers received by Cartlidge, Frisbie, and the other motor carriers is normally made to the Company once a week on Thursday at the Com- pany's office. However, Cartledge was instructed to pay his weekly bill by deposit- ing the amount thereof in the Company 's bank account, and for that purpose the Company furnished Cartledge with a rubber stamp to indorse checks 32 Although Cartledge, Fnsbie, and the other motor route carriers were generally charged for all papers they received by them from the Company, they were per- mitted to receive without cost as many as 5 to 10 complimentary newspapers each day for use in soliciting additional subscribers on their routes 33 All of the motor 27 On Sunday mornings, Mrs Frisbie also delivered bundles of the Company' s news- paper, the Sarasota Journal, to various locations on her route for subsequent pickup and home delivery by newsboys. For the latter service, Respondent paid Mrs. Frisbie $5 per week. 28 In 1954, Arn, the Company's circulation manager , instituted the practice of executing written agreements with its motor carriers. Neither Cartlidge or Frisbie was ever asked to sign and no plausible reason was adduced by Respondent for this omission. Some of the contracts between Respondent and other motor route carriers were received in evi- dence for whatever light they might shed on the nature of the relationship among Re- spondent, Cartlidge, and Frisbie. Some of the contracts contained a provision requiring the carriers to attend sales promotion meetings. However, the record does not disclose that any such meetings were ever held. 21 At the time Cartlidge was engaged , Respondent published only the Sarasota Herald- Tribune, which was then an afternoon paper. 80 Losses resulting from failure to collect was borne by the motor route carriers. 81 On one occasion , when the retail rate was raised to $1.95 per month, Cartlidge requested permission to charge $2 to avoid excess postage charges which resulted from customers mailing change to him in payment of their monthly bills without sufficient postage. His request was peremptorily denied, as was also his alternative request that he be permitted to ask the customers to mail him $2 and he would refund a nickel with the delivery of the paper. On another occasion, Cartlidge requested and was denied per- mission to charge an additional service charge for delivery to a subscriber who lived about a mile down a long dead end street on which there were no other customers. 82 The stamp contained the following verbiage : "Deposit to the account of Lindsay Newspapers Inc. by Erlaine Cartlidge." Erlaine was the name of Cartlidge's wife. No explanation was offered as to why Cartlidge was treated differently than other motor carriers in this respect. 82 Occasionally the Company sent crews into the field to solicit new subscribers. The new customers were turned over to the motor route carriers as additions to their routes without any charge for the solicitation service rendered by the Company. LINDSAY NEWSPAPERS, INC. 695 route carriers were permitted to return any newspapers not delivered by them or which were returned to them by newspaper stands on their routes for full credit by the Company. In the case of Cartlidge, however, the Company subsequently re- quired that his return be made on the same day that the paper was issued or no credit would be given 34 Although there was conclusionary testimony that the cost of stolen newspapers was home by the motor route carrier, the record did not show that any bundles of papers were ever stolen. In respect to single copies of papers, the record shows that the practice was that if a customer complained or made a "kick" that he had not received his paper, either because of oversight by the carrier, or because it was stolen or carried off by an errant dog, the Company delivered another paper by special messenger without charge to the motor route carrier either for this special service or for the newspaper. Subsequently, the Company unilaterally changed this policy and charged the motor route carriers at the wholesale rate when- ever it delivered more than six "kicks" for a carrier in 1 week, but there was no charge if the number of "kicks" were fewer than six35 Likewise, if papers were damaged by sudden rain or otherwise without the fault of the carrier, the Company would either credit the full cost of such papers to the motor route carrier on their return, or, in the event of a "kick" by the customer, deliver a replacement without cost to the carrier. The motor route carriers, including Cartlidge and Frisbie, were required to fur- nish their own motor vehicle for the delivery of Respondent's newspapers. The Company did not require that any particular type of vehicle be utilized. Each of the motor route carriers including Frisbie and Cartlidge owned one or more ve- hicles which they used in the delivery of the Company's newspapers. The cost of the operation of the vehicles was one of the items of expense which the motor route carrier bore. The Company did not require the carrier either to insure the vehicle or to place the Company's name thereon. However, the Company forbade the motor route carriers from carrying political signs on the vehicles used in the de- livery of the Company's newspapers and likewise forbade delivery by the carriers of the literature of political candidates. Supplies which the carriers used in delivering the newspapers, such as rubber bands and plastic bags for use in the case of rain, were generally purchased by the carriers from the Company but this was not obligatory. The cost of such supplies was an item of expense borne by the motor route carriers. The motor route carriers also selected such helpers, substitutes, and subcarriers 36 that they deemed necessary to aid in the operation of their routes. The salaries and other conditions of em- ployment of such helpers, substitutes, and subcarriers are fixed and paid by the carriers. Although generally, the Company did not participate in the selection of helpers, substitutes, and subcarriers, on one occasion the Company, in order to "check" on his reliability, required Mrs. Frisbie to supply it with the name of the substitute whom she engaged to take her place while she took a vacation. More- over, the Company also compelled Cartlidge to terminate the use of a subcarrier named Grabill whom it regarded as unsatisfactory, notwithstanding that Cartlidge was satisfied with his services.37 In addition to fixing the retail price which the motor route carriers should charge for the newspaper, the Company also required that subscribers pay for the paper in advance. Moreover, it also fixed the policy regarding the manner in which collec- tions were to bemade, originally requiring that collections must be made by personal visits to the homes of subscribers. This method of collection frequently required Cartlidge and Mrs. Frisbie to make repeated collection visits to the homes of some subscribers because sometimes the customer was not at home or was unable to pay at the time of the first visit. Both Cartlidge and Mrs. Frisbie requested permission from the Company to enclose a bill with the newspaper delivered on the first of the month and a return envelope by means of which the customer could pay by prepaid mail. Circulation Manager Am originally refused to permit this method of collec- tion because of the Company's preference for personal contact with subscribers. However, approximately 1 year later, Am authorized Cartlidge and Mrs. Frisbie to Other motor carriers, including Mrs Frisbie, were permitted to return their excess papers once a week, usually in connection with the payment of their paper bills, and received full credit for the returns. 35 Moreover, the Company never charged the carriers for making the delivery. BOA subcarrier is a person who delivers a portion of the regular carrier's route. He purchases his papers from the carrier at a wholesale rate, slightly higher than that paid by the carrier to the Company, and collects from subscribers on his portion of the route at the established retail rate s'' Cartlidge described Grabill as the best subcarrier he ever had. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collect by mail if they so desired. Thereafter, the latter method of collection was utilized by them. The content of the bills used by the carriers was not free from supervision by the Company. Mrs. Frisbie was refused 'permission to place her "office hours" on her bills. Moreover, the carriers' bills were sometimes checked by Circulation Manager Arn for accuracy in rate charging and, on one or two occa- sions, he called errors in rates to the carriers' attention. Subscribers frequently paid their bills, for the newspapers to be delivered to them by the motor route carriers, directly to the Company, and, generally, the Company turned over the money thus collected to the carrier. However, if •a subscriber paid, for his paper 3 or more months in advance, the Company retained such funds in its possession. Moreover, the Company also required the carriers to turn over to it all. funds collected by them from subscribers 3 or more months in advance. The Com- pany credited the carrier's bill weekly for the retail price of the papers delivered to, such subscribers, who were called "office pays." The Company did not establish any order in which the motor route carriers were, required to deliver the papers to the subscribers on their routes. However, I do not regard this element of alleged lack of control as having any great significance since it was to the advantage of both the Company and the carriers that the papers be delivered in the shortest possible time, and, therefore, in the most expeditious order and with a minimum of travel. Similarly, although the Company did not set the hours of employment of the motor route carriers, it did require that the newspapers. be delivered to the subscribers not later than "6:30 or 7 a.m.," and thereby con- trolled the reporting time of the carriers. Moreover, on several occasions, the Company specifically instructed both Mrs. Frisbie and Cartlidge to pick up their papers earlier in order to finish deliveries by 7 'a.m. In addition, on one occasion,. the Company instructed Cartlidge, in writing, to furnish a daily record of his delivery starting time and the time he made his last delivery.38 In addition, the Company also maintained a record of the time the carriers picked up their bundles of papers at the Company's plant. The Company did not permit its carriers to distribute any other publication. In this connection, the Company issued a written instruction to all motor route car- riers which reads as follows: 39 NOTICE TO ALL MOTOR ROUTE PERSONNEL 1. It has come to my attention that "other" newspapers from time to time approach one of our motor route personnel and proposition them relative to also carrying their paper along with ours. 2. The intent of this letter is not to incriminate anyone in any way shape or form but to make crystal clear and to place before you the company policy on this-to wit:-UNDER NO CIRCUMSTANCES WILL DISTRIBUTION OF ANY OTHER PUBLICATION BE PERMITTED, regardless of how small.. Your job is and MUST be entirely with the Sarasota Herald Tribune. 3. In event you should happen to be contacted please act accordingly. J. W. ARN. The Company contends that this instruction applied only to the distribution of other newspapers. However, 'according to Cartlidge's uncontradicted testimony, on one occasion shortly before the issuance of the Company's written instruction quoted above, Cartlidge requested but was denied permission by Am to distribute a publica- tion called Florida Gardenland. I conclude from the written instruction and Cart- lidge's testimony that the prohibition was not limited to the delivery of other newspapers. There was general testimony by Circulation Manager Arn that the Company, on occasion, permitted motor route carriers to engage in other occupations unrelated' to the distribution of newspapers. However, based on the credited testimony of Mrs. Frisbie that Arn forbade her from engaging in any other occupation and required ,her to terminate her temporary position in the post office as a condition precedent to, her hire as a motor route carrier, and based further on the unqualified mandate to the "motor route personnel" in General Counsel's Exhibit No. 5-j that "your job is and MUST be entirely with the Sarasota-Herald Tribune," I find that Respondent exercised unilateral control over the outside occupations of the motor route carriers. Although each of the motor route carriers was assigned by the Company to a specific geographical area in which to deliver the Company's papers, they possessed sa See General Counsel's Exhibit No. 5-a. 19 See General Counsel's Exhibit No. 5-i. LINDSAY NEWSPAPERS, INC. 697 no proprietary interest in the route and could not sell, transfer, or assign it 40 Moreover, the size of the route and the number of subscribers to whom the carriers could deliver were subject to the unilateral control of the Company. Thus, over the .objections and protests of the motor route carriers involved , the Company frequently reduced the number of customers to be serviced by cutting the areas covered by the routes. In this manner, Mrs. Frisbie's route was cut in July 1955 and again in October 1956. On the first occasion, Mrs. Frisbie's route was cut from 750 to 600 customers, and in 1956, the cut was from 810 to 600. In neither instance was Mrs. Frisbie compensated by the Company for the loss in earnings caused by these cuts. Her protests to the cuts, on the ground that her costs for help were static regardless ,of the size of the route, were disregarded by the Company.41 Other carriers suf- fered like cuts in their motor routes, notwithstanding their objections thereto. On other occasions, the Company increased the size of some of the routes without cost to the carrier. There is no doubt, on the record herein, that the Company main- tained unilateral control of the size and location of the routes, and , thus, on the earnings of the motor route carriers. In general, the Company did not undertake to exercise much supervision over -the manner in which the papers were delivered. When it did, the carriers were required to comply. Thus, fora period of approximately 2 months, the Company required the motor route carriers to roll the papers the "long way" so that the paper would give an appearance of greater bulk than it had. Cartlidge protested this re- ^quirement to Circulation Manager Am because it was more difficult to throw the papers from the car than if the papers were rolled in the usual manner, the short way. Am replied that the publisher insisted on this method of delivery and Cart- lidge complied. On occasions, the carriers, including Mrs. Frisbie and Cartlidge, were required to deliver papers to newspaper tubes erected by the Company at sub- scribers' homes notwithstanding that the carriers would have preferred to deliver the paper without the use of a newspaper tube.42 Moreover, carriers were sometimes required by the Company to deliver to the homes of customers when they would have preferred to deliver to the customer by means of a tube erected at the head of a long dead end or one-way street, or in the alternative, not at all. Also, on occa- sions, Cartlidge was required to deliver papers to customers to whom he preferred not to deliver and to customers from whom he wanted payment in advance before making any deliveries. One such instance was the case of Bayou Village, a tourist court, where, according to Cartlidge's experience, the customers were transients who frequently moved away without paying for the paper. Cartlidge requested permis- sion from Circulation Manager Am not to deliver the paper unless the paper was paid for in advance. Am refused and insisted that delivery be made, notwithstand- ing the risk of loss to Cartlidge. Furthermore, although generally the decision of -when to "wax" the papers 43 was within the discretion of the motor route carriers, Circulation Manager Am admitted that on occasion, through the night supervisor, he instructed the motor route earners , "Be sure to wax tonight." 40 On one occasion, Cartlidge told Circulation Manager Arn that he would like to pur- chase his route so that he would have a proprietary interest therein, but Arn stated that the Company did not buy or sell routes and that the publisher preferred to control the routes. 41 The Company introduced testimony by Arn, Agnes Bissell, a motor route carrier, and her husband, Willis Bissell, a company district manager, to the effect that the second cut of Mrs Frisbie 's route was made at her own request because the route was too large for her to handle. Mrs. Frisbie denied that testimony Since I regard her as a wholly reliable witness, and do not so regard either Arn or the Bissells, I do not credit their testimony insofar as it does not accord with that of Mrs. Frisbie. 42A newspaper tube is a cylindrical metal container into which the carrier deposits the paper. It is usually erected on a post placed in front of or near the customer's place of residence. In order to deliver the paper to a newspaper tube, the carrier is required to make a complete stop of his automobile, thus consuming more time than throwing the paper from the moving car to the porch or lawn. The additional stops also added to the wear and tear on the car's brakes , clutch, and gears, and to the consumption of gasoline. Generally, the carriers preferred not to deliver to newspaper tubes. However, in some instances newspaper tubes were erected by carriers for their own convenience , for example, to eliminate driving down a long street for one customer , carriers sometimes delivered to a tube at the head of the street. 43 The term "wax" the paper means placing the paper in plastic bags as a protection against rain. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. Concluding findings in respect to the, status of Cartlidge and Mrs. Frisbie The issue of the relationship which existed among Cartlidge, Mrs. Frisbie, and Respondent presents, essentially, the question of whether the relationship was "entre- preneurial," that is, whether the earnings of Cartlidge and Mrs. Frisbie were con- trolled "by the carriers diligence and efficiency in effecting delivery of their papers and the collecting of their accounts," 44 or whether the relationship was that of "em- ployer" and "employee," because "the control reserved by the Respondent over the carriers substantially exceeded the mere supervision of a contract to insure its faithful performance." 45 As in all such cases, not all of the aspects of the relationship fall in one or -the other category. On balance, I conclude that the relationship among Cart- lidge, Mrs. Frisbie and the Company was that of employer and employee . I base this conclusion on the following considerations: 1. The carriers had no proprietary interest in their routes, and the Company not only possessed, but frequently exercised over the protests of the carriers, its power to diminish their earnings by cutting areas from the routes. Likewise, the Company could also and frequently did increase the earnings of the carriers by increasing the size of the routes. Thus, the earnings of the carriers did not depend primarily on their "diligence and efficiency" but on the whim of the Company in respect to the size of the route. 2. Neither Mrs. Frisbie nor Cartlidge had any contract with Respondent for a fixed term and their relationship with Respondent was obviously terminable at the Com- pany's will, as evidenced by the summary manner in which they were fired for en- gaging in union activities. 3. The Company retained unilateral control over the outside occupations of the carriers." 4. The Company did not permit the carriers to display the signs of political candi- dates on their automobiles. 5. The Company maintained control over the manner in which collections were to be made from the subscribers , originally requiring personal visits to the customers' houses, and later permitting collection by mail . Moreover, the verbiage used on the carriers' bills to subscribers was subject to the control of the Company 47 6. The Company retained control over the funds paid for newspapers 3 months in advance. It paid no interest to the carriers for these funds which , in a true inde- pendent contractor relationship, the carriers would retain and use. The Company explained that this policy was necessary to protect it against sudden terminations by carriers with large numbers of prepaid customers . Whatever the reason for the policy, it does not dilute the fact that the Company retained control over funds ad- vanced for the carriers' services, thus tending to negate their "independence." 48 7. Unlike a true entrepreneurial status, Respondent's carriers assumed little or no risk of loss, because excess and damaged papers could be returned for full credit .49 8. The Company made free delivery, without cost to the carrier, to any customers who registered a "kick" because his paper was not delivered , stolen , or damaged. Even the later unilateral change in this policy by the Company did not require the carrier to pay for any "kicks" unless the total number was six or more in I week. Thus, the carrier assumed few, if any, of the risks which normally attend an entre- preneurial status. 9. The Company retained and, on many occasions , asserted control over the man- ner in which, the persons to whom the places where, and the time when the papers should be delivered by the carriers. 44 The Kansas City Star Company, 76 NLRB 384, 388. 45 Citizens News Company, Inc., 97 NLRB 428, 433 4e See General Counsel's Exhibit No 5-j; Cartlidge 's testimony that he was denied per- mission to distribute the publication , Florida Gardenland , and Mrs. Frisbie's testimony that she was required to terminate her job with the post office. 47 In addition to denying permission to Mrs . Frisbie to put her "office hours" on the bill, the Company also denied permission to Cartlidge to insert "welcome notes" to new subscribers in the papers 48 Moreover, the Company required the carriers to post a cash deposit with it to cover just such a contingency , and, if insufficient in amount, the Company could have required an increase in the amount of the cash deposit 49 The risk of loss for nonpayment by customers was minimal and controllable by the carrier, in view of the Company's policy of requiring payment for subscriptions in advance, and the carriers , if they so desired, could generally cut off delivery for nonpayment. LINDSAY NEWSPAPERS, INC. 699 10. In the case of Cartlidge, the Company controlled the manner by which he was to pay for his weekly paper bill, that is, by deposit directly to the Company's bank account. Moreover, this method of payment is indicative of an "employee" status rather than that of an independent contractor. 11. After their discharge, the Company offered Cartlidge and Mrs. Frisbie 2 weeks' "net profit" as "termination" pay without requiring them to deliver the Com- pany's papers. This offer bears striking resemblance to severance pay received by persons who pare employees. 12. Prior to the Union's organizing campaign, the Company apparently regarded and treated the carriers as employees. Its written communications to the carriers were addressed: "Notice to Motor Route Personnel." 50 Respondent's instructions to the carriers referred to their work for the Company as a "job." Thus, General Counsel's Exhibit No. 5-j, stated, inter alia, "Your job is and MUST be entirely with the Sarasota Herald Tribune." 61 In addition, Circulation Manager Am testified that in response to the Company's advertisement, Mrs. Frisbie "came down to see about the job," and "she was very desirous of having the job." 52 13. Finally, the Company retained unilateral control, not only of the wholesale prices which it charged the carriers for its papers, but also of the retail price which the carriers could charge for the paper, from which the latter could not deviate. All of the foregoing considerations persuade me that the extensive control of the Respondent over the work and earnings of Cartlidge and Mrs. Frisbie establishes an employment relationship,53 and "is sufficiently countervailing to outweigh other aspects of their relationship with Respondent which might indicate independent contractorship." 54 Accordingly, I find and conclude that Cartlidge and Mrs. Frisbie were employees of Respondent.55 In view of this conclusion, consideration must be given to several other defenses asserted by Respondent to support its contention that the discharge of Cartlidge and Mrs. Frisbie did not violate the Act. Respondent's answer alleges that while en- gaging in union activity, Cartlidge and Frisbie uttered " malicious, false, untrue and misleading statements" about Respondent. This defense is wholly unsupported by any evidence in the record and I therefore reject it. Respondent's answer also alleges that Cartlidge and Mrs. Frisbie have engaged in conduct since their discharge warranting denial of reinstatement. This defense is likewise without merit. No evidence of any misconduct by Mrs Frisbie after her discharge, was adduced by Re- spondent. In the case of Cartlidge, Respondent introduced two letters sent to customers by Mrs. Cartlidge after his discharge. 56 I can find no evidence of any misconduct by Cartlidge in either of these letters. Finally, Respondent asserts as a "9th Defense," that if Cartlidge and Mrs. Frisbie are found to be employees, "then said individuals were supervisors of Respondent within the meaning of Section 2(11) ii See General Counsel's Exhibits Nos. 5-i, 5-c, 8-a, and 8-i. 61 Emphasis supplied 11 Other indications that the Company treated the carriers as employees were • gift turkeys to the carriers at Christmas and Thanksgiving Day for procuring a certain num- ber of new subscriptions; and solicitation campaigns by other company personnel of new subscriptions which were then turned over to the motor route carriers without cost. 11 In Case No. 12-RC-631, the Board found that the newsboy carriers of the Respondent are independent contractors However, the record before the Board in that case dis- closed none of the elements of Respondent's control upon which I rely in my finding that Cartlidge and Mrs. Frisbie are employees. 64 Citizens News Co, supra. The indicia of independent contractor status included the following. The carriers are not listed on Respondent's payroll, funds are not withheld from their earnings for income taxes, social security, and unemployment insurance, they do not receive paid vacations or holidays, they are not covered by workmen's compensation, Respondent does not require them to carry its name on their automobiles used for paper delivery, and they pay for their own supplies and equipment at their own cost. cc I do not, by this finding, pass on the relationship between Respondent and the other motor route carriers because the issues presented by the pleadings were limited to whether Cartlidge and Mrs. Frisbie were employees Moreover, the record disclosed the existence of written contracts between Respondent and some of the other carriers, and other vari- ances in the extent of control which Respondent exercised over them However, I do not, by the foregoing, intend to imply that I regard the other carriers as possessing a different status than Cartlidge and Mrs Frisbie I merely regard the status of the other motor carriers as outside the scope of the issue before me 66 Respondent's Exhibits Nos 22 and 23. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act." Respondent refers to the fact, noted above, that Mrs. Frisbie regularly employed a helper to assist her with her route and that occasionally Cartlidge utilized a helper. The record does not disclose that Cartledge employed a helper other than his wife at the time of his discharge. However, since, in any event, such helpers were employees of Cartlidge and Mrs. Frisbie and not of Respondent, it is obvious that neither Cartledge nor Frisbie supervised any employees of Respondent and therefore, were not "supervisors of Respondent." Accordingly, I likewise reject this defense. Therefore, I find and conclude that by discharging Cartlidge and Mrs. Frisbie for engaging in union activities, Respondent discriminated against employees and dis- couraged membership in the Union, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent discriminated in respect to hire and tenure of em- ployment of John A. Gulsby, Jack E. Cartlidge, and Myra Frisbie, I shall recom- mend that Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. I shall further recommend that Respondent be ordered to make John A. Gulsby, Jack E. Cartlidge, and Myra Frisbie whole for any loss of earnings they may have suffered as a result of the discrimination against them by the payment of a sum of money each normally would have earned from the date of his or her discharge to the date of the offer of reinstatement, less their net earnings during said periods, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I shall also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due under this recommended remedy. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Sarasota Printing Pressmen and Assistants ' Union Local 565, International Printing Pressmen and Assistants ' Union of North America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in respect to the hire and tenure of employment of John A. Gulsby, Jack E. Cartlidge , and Myra Frisbie, thereby discouraging membership in Sarasota Printing Pressmen and Assistants' Union Local 565, International Printing Pressmen and Assistants' Union of North America , AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (4) of the Act. 3. By the foregoing conduct and by interrogating employees in respect to their union membership, activities, and desires, the Respondent has interfered with, re- strained , and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of the Act. [Recommendations omitted from publication.]