Hearst Consolidated Publications, Inc.

SAN ANTONIO LIGHT DIV., HEARST CONSOLIDATED PUB. 619 and Armitage, respectively, "Well, we have been a little too lenient with them"; "We will have to see him some night," constituted a threat and were violative of Section 8(b)(1)(A) of the Act. Affonso, an International organizer of Respondent, had several conversations with employee Maria Baptista . Baptista did not speak English , being a recent arrival from the Azores Islands. Affonso spoke to her in Portuguese and sought to con- vince her of the advantages of joining the Union. On May 6, the inception of the strike, Affonso spoke to Baptista at considerable length near the entrance of the plant. The theme of Affonso's conversation was that Baptista should not go in to work. According to the credited testimony of Baptista, Affonso told her at one point that the Union was very powerful , that it had very good attorneys and that if Baptista refused to cooperate, they could deport her. It is found that the threat of deportation was violative of Section 8(b) (1) (A ) of the Act. Margaret Bevins was an International organizer of the Union . She had several conversations with employee Alice White about the advantages of joining the Union. About a week after the commencement of the strike Bevins came to the home of White. The conversation concerned itself with White's attitude toward the Union and whether or not White should work during the strike. Bevins asked White if she was going in to work the next day and White said she would think about it. As the conversation ended, Bevins said to White, according to White's testimony, "You better not go in if you know what is good for you ." Bevins denied that she made such a statement . The record shows that Bevins was a persistent advocate of the union cause and there is considerable testimony regarding her efforts toward employees along such lines. However, it was the Trial Examiner's opinion that Bevins' technique fell short of threats and after a careful consideration of the witnesses and their testimony the denial of Bevins is credited .8 Dismissal of this allegation is recommended. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with the business operations of Twin-Kee described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and conclusions , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Through threats, as found in section III, above, Respondent has restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 8 On cross-examination White said that Bevins made the aforedescribed statement, "Something to that effect. . . . San Antonio Light Division, Hearst Consolidated Publications, Inc. and William D. Pearson. Case No. 23-CA-992. Febru- ary 21, 1961 DECISION AND ORDER On September 26, 1960, Trial Examiner William J. Brown issued his Intermediate Report in the above-entitled proceeding, finding that 130 NLRB No. 83. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Fanning and Kimball]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following corrections' and additions. We agree with the Trial Examiner that the route dealers are em- ployees and not independent contractors; 2 that the Association was an existing, albeit inactive, labor organization; and that the Respond- ent discharged Pearson for cause and not because he was engaged in union or concerted activity. At the hearing, witnesses for the Respondent testified that Pearson was discharged because he interrupted a weekly promotional meeting, the bank returned his January newspaper-payment check marked "insufficient hinds," and, as stated by Tilson, the Respondent's circu- lation manager, he was destroying the effectiveness of the route-dealer organization by his "rabble rousing." While it appears that other dealers had paid their accounts with checks which were returned, and had been warned but not discharged, it is clear that the Respondent considers the weekly promotional meetings to be extremely important, and the promotion manager, who has only 10 minutes in each of a series of such meetings to review the promotion activities for the com- ing week, is intolerant of interruptions. Another route dealer had been previously discharged for inattentive conduct at such a meeting. Moreover, 5 months prior to his discharge, Pearson's contract had been terminated for similar conduct, but the termination was re- scinded upon his assurances that such misconduct would not recur. Tilson had used the term "rabble rousing" previously to describe Pearson's conduct in taking a proposed route-dealer contract out of the office for the purpose of comparing it with a similar contract in 'We do not adopt the following findings , which are not fully supported in the record, but which do not affect the Trial Examiner 's conclusions nor our concurrence therein: that the Charging Party did not enter an appearance; that Trainer vacated his office as president of the Association upon his promotion to zone supervisor ; that Pearson assumed the office of president ; that the Association was reactivated from its dormancy in January 1960; and that the only reason given Pearson for his discharge was the cryptic remark, "You know what it is for." s See Buffalo Courser-Express, Inc., 129 NLRB 932. SAN ANTONIO LIGHT DIV., HEARST CONSOLIDATED PUB. 621 another city. The General Counsel argues that these references to "rabble rousing" used during the two periods when Pearson was en- gaged in organizing activities, and the fact that on the day of Pear- son's discharge, a supervisor questioned two route dealers about association or union activity, indicate that Pearson's discharge was motivated by his concerted activity. While both of Tilson's remarks about "rabble rousing" were made at times when Pearson was engaged in organizing the route dealers, it is not established that they had reference to his organizing activities, nor even that the Respondent had knowledge thereof. Moreover, it appears that the supervisors' questions of the two route dealers about association or union activity on the day of Pearson's discharge occurred after the discharge, and after Pearson had made reference to the Association. From the en- tire record, we find that the General Counsel has not sustained the burden of proving that Pearson was terminated because of his union or concerted activity. We therefore find that this discharge, the only unfair labor practice alleged in the complaint, was not violative of Section 8(a) (3) and (1) of the Act. [The Board dismissed the complaint.] INTERMEDIATE REPORT STATEMENT OF THE CASE This case began with a charge and an amended charge of unfair labor practice filed by William D. Pearson, an individual, hereinafter sometimes referred to as "Pearson" or the "Charging Party." Thereafter the General Counsel caused the complaint herein to be issued on April 7, 1960, by the Regional Director. The complaint alleged, in addition to jurisdictional facts, that San Antonio Light Independent Newspaper Dealers Association, hereinafter called the Association, was a labor organization and that San Antonio Light Division, Hearst Consolidated Publications, Inc., hereinafter called the Respondent, discharged Pearson on or about March 2, 1960, because Pearson joined or assisted the Association or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, Respondent thereby engaging in unfair practices within the meaning of Section 8 (a) (3) and (1) of the Act. As amended, pursuant to leave granted by Trial Examiner at the hearing, Respondent's answer admits the allegations of fact on the basis of which the General Counsel contends that legal and discretionary jurisdiction exists, and denies both that the Association is a labor organization within Section 2(5) of the Act and that it discharged Pearson and refused to reinstate him as an employee or committed any unfair labor practice in connection therewith. On the complaint and answer a hearing was held at San Antonio, Texas, on June 1, 2, 3, 4, and 6, 1960, before the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent, by their attorneys, partici- pated in the hearing; the Charging Party did not enter an appearance. Upon receipt of the transcript counsel for the Respondent called to the attention of the Trial Examiner and the General Counsel the omission from the transcript of a portion of the testimony of a witness called by the Respondent, Baylor Randle. Subsequently counsel for the Respondent submitted a written stipulation covering the omitted testimony and jointly executed by himself and the General Counsel with the request that it be made part of the record. By order dated July 18, 1960, and served upon all parties, including the Charging Party, the Trial Examiner accepted the stipu- lation as part of the record in this proceeding. Thereafter, briefs were received from the General Counsel and the Respondent which have been helpful to and fully considered by the Trial Examiner. At the conclusion of the hearing the Trial Examiner reserved ruling on Respondent's motion to dismiss the complaint. That motion is disposed of in accordance with the findings and conclusions hereinafter set forth. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record herein, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, hereinafter sometimes called the Light, publishes the San Antonio Light, a newspaper of daily evening and Sunday circulation in San Antonio, Texas. The complaint alleges and the answer admits that during the 12-month period pre- ceding the complaint, Respondent derived gross revenues in excess of $200,000 in the course of its business. The complaint further alleges and the answer admits that Respondent holds membership in or subscribes to interstate news services and in- cludes in its publication nationally syndicated columns, comic strips, and special features. It was stipulated at the hearing that Respondent's audit bureau of circula- tion figures for the year ending September 30, 1959, show total sales of newspapers outside the State of Texas in the amount of $10,345.56 based on an average sale of 347 daily and 651 Sunday papers, this out of a total paid daily circulation of 107,346 and Sunday circulation of 129,292 papers. On the basis of the pleadings and evi- dence, I find that Respondent is engaged in commerce within the meaning of the Act and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The Association, alleged in the complaint to be a labor organization, is the subject of dispute as to its status. It clearly existed at one time as an organization of the Light's dealers and on at least one occasion engaged in an attempt at collective bar- gaining with Respondent. Respondent contends, however, that the dealers who, constituted its membership were at all material times independent contractors, not employees of the Light, and further that the Association has been defunct since some- time in the late spring or early summer of 1958. On the basis of subsidiary findings more fully explicated below, I find and conclude that the Association is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges a violation of Section 8(a)(3). Respondent contends that: (1) Pearson was an independent contractor, not an employee; (2) the Association was not at any material time a labor organization; and (3) Pearson's contract was not terminated on account of activities on behalf of the Association or for other concerted activities looking to the mutual aid and protection of Pearson and his fellow dealers. The issues are essentually factual and accordingly the evidence is rather fully set out below. A. Respondent's organization and operations San Antonio is 1 of only 12 cities in the United States having 3 or more major newspapers. As appears from the testimony of the Light's publisher, Bernard Hor- ner, the Light, a few short years ago ran a poor second circulationwise among the three San Antonio newspapers and was almost in third place. At present it not only leads but its circulation almost exceeds the total circulation of its two competi- tors. Circulation is vital to a newspaper not only because of revenue from sales of the paper but also because it determines advertising rates and sales of advertising space. The circulation business is highly competitive among San Antonio's news- papers. Furthermore, San Antonio, with its large number of military personnel, presents a circulation problem nonexistent in other major cities due to the frequent transfer of military personnel and the consequent recurring cancellations of their subscriptions. It was, according to Homer's testimony, in order to stimulate circulation growth that effective February 1, 1955, the Respondent, after having made a study of the problem and its handling by other newspapers, established a major change in its circulation department whereby the practice of having district managers, salaried employees with responsibility for circulation in designated districts throughout the city, was terminated. As a substitute for the manager arrangement Respondent inaugurated the practice of leasing to persons designated as "route dealers" specified districts within the city of San Antonio and its suburbs within which the route dealer would effectuate the distribution of the Light. Some (the record does not indicate how many) of the former district managers entered into such contracts as route dealers. On April 1, 1957, the Charging Party executed a contract as route dealer for the district known as district 2600. On. SAN ANTONIO LIGHT DIV., HEARST CONSOLIDATED PUB. 623 March 1, 1958, he executed a new, revised , agreement of lease which was in effect up until its termination by the action complained of herein. Respondent's circulation department is headed by C. S. Tilson, circulation man- ager, whose responsibilities include home delivery as well as street and mail sales. Directly under Tilson, as head of the home delivery operation , is S. Grady Rees. Also reporting to Tilson is Woodrow Curd, circulation promotion manager, who is engaged in circulation promotion by advertising to the public and by creating incen- tive programs for carriers and dealers. Home delivery of the Light within the city and its suburbs is effectuated by some 800 or more carrier boys, the term "boys" being somewhat of a misnomer inasmuch as some adults and females perform this function . The carrier boys purchase their papers from the route dealer and sell them to the home subcriber at the published price. Each dealer contracts with about 30 carriers. Under Rees are four zone supervisors, salaried Light employees, who act as liaison between the Light management and the route dealers. Three supervise among them the 26 city dealerships, and the 4th zone supervisor has responsibility for the 10 rural dealerships. As indicated above the combination of the large number of military personnel in San Antonio and competition with other newspapers for home subscribers requires continued emphasis on procuring new subscriptions . As a consequence, in addition to the advertising and stimulation programs managed by Curd, the Light engages on a commission basis solicitors , Chase and Mansfield by name, who are continu- ously engaged in a citywide home selling campaign . The Light further pays a bonus of 50 cents per new subscription directly to a carrier. It also maintains what is known as the merit club in which all home delivery carriers under 16 years of age participate . The merit club provides a bimonthly dinner for carriers whose per- formance both with respect to subscriptions and general attitude entitles them thereto, those having superior performance as calculated on a point basis receiving cash and other awards at the dinners. B. The Association, its history and relations with Respondent 11 Sometime prior to March 1, 1958, the Light had under consideration the matter of a revision of the standard agreement entered into with its route dealers. A copy of the proposed revision was secured by some of the dealers. Also at this same time the Light switched over from a practice of dropping the bundles of papers for the dealer's district already bound with wire and tagged with route numbers to a policy of bulk delivery which meant some additional work and time for the dealer. Marvin Holley, then a district dealer on district 2100, appears to have taken the lead toward organization of the dealers for mutual aid by writing a letter to an International labor organization in Washington requesting information as to the procedure to organize the dealers into a union . Holley also discussed organization with a number of other dealers including Pearson , the Charging Party. As a consequence of advice received as a result of Holley's letter to Washington , Pearson telephoned one Graham in Fort Worth, an official of the AFL-CIO's regional office. Pursuant to Graham's suggestion that they contact a labor union already recognized by the Light, Woods, a district dealer on Route 2500, communicated with the Printing Pressmen and Assist- ants' Union of North America. That union, however, declined to admit the dealers into full membership. Thereafter District Dealer Eugene "Mike" Trainer suggested that consideration be given to the formation of an unaffiliated association similar to one in existence among dealers of the Houston Chronicle . The group decided to form an association of such a nature and Trainer and Pearson went to Houston for information in that regard. In connection with the trip to Houston and the discussion with representatives of the Houston Association , Trainer and Pearson sought and obtained information as to the cost of hauling papers under an independent dealership as well as information on the organization and operation of the Houston Association . Upon their return from Houston or within a day or so thereafter , in the course of a conference in his office, Tilson informed Pearson that he resented Pearson's action in taking the proposed agreement to Houston saying further that Pearson was a "rabble -rouser" stirring up the men in derogation of the good policy built up by Tilson. Shortly after the trip to Houston , the interested dealers decided . inasmuch as their membership had reached 14, constituting a majority of the city dealerships , to organ- ize formally. As a consequence , an organizational meeting of the Association was held February 10, 1958 , at which bylaws were adopted and officers elected. The officers included Trainer as president and Pearson as vice president. An attorney, Julius Grossenbacher, was retained to advise the Association with respect to its bylaws . He further advised that the four elected officers call on Tilson, '624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as representatives of the group, to discuss the dealers' grievances. Thereafter the four officers met with Tilson but he declined to recognize them in any capacity other than as four individuals. In that capacity he discussed the various grievances they presented and took them under consideration. Thereafter, when the amended con- tract was prepared, it did incorporate one of the suggestions presented by the Asso- ciation officers. The Association continued to have meetings through the spring of 1958 on a formal basis. Apparently some informal meetings continued as late as the summer of 1959. The Association then became relatively inactive but it never formally dissolved. In September 1959, Trainer became a zone supervisor and as such ineligible for membership or office in the Association. As a consequence Pearson became presi- dent by virtue of the bylaw provisions. As of the date of the hearing the Association had on deposit in a San Antonio bank the amount of $71.27. No-check had been drawn on that account during the 2 years immediately preceding the date of the hearing. The record indicates that in January 1960, the Association was reactivated from its dormancy. It was discussed among employees as an existing entity and an out- side professional organizer was consulted in the name of the Association. The organizer, Marvin Johnson, advised the dealers to secure data concerning the em- ployment nature of their relationship with the Light. C. The status of the route dealers The issue herein as to the status of route dealers was fully litigated by the parties and their briefs on the issue reflect penetrating analysis and forceful argumentation on both sides. The issue is not easy. As the Supreme Court has indicated in N.L.R B. v. Hearst Publications, Inc., 322 U.S. 111, each case must turn upon its particular facts. The conclusion is to depend upon the balance to be struck from the myriad facets of each particular relationship. There are two major elements to be regarded: (1) the extent to which the relationship is entrepreneurial in nature, and (2) the allocation of the right of control as to the methods by which the work is to be performed. In the instant case the persistence and acumen of counsel on both sides have resulted in a wealth of testimonial and documentary evidence produced in support of the respective contentions on this issue. The issue is to be determined by weigh- ing all the separate items and finding where the balance lies. The fact that the compensation of the independent dealers is determined by offsetting of the spread between their purchase and selling prices against their own operating costs is not in itself controlling. In this regard the fact that their earnings are to a considerable extent dependent on their own efforts does not in itself make their employment status any different from that of piece or incentive workers or commissioned- compensated salesmen. Furthermore, neither does the mere fact that they neces- sarily retain some elements of control in connection with their performance make them nonemployees. Likewise, although one of the classic definitions of "independ- ent contractor" contains as an element of the relationship that the actor be engaged in an independent calling as, for example, physician, attorney, architect, building contractor, or the like (see 27 Am. Jur. "Independent Contractors" § 2, at p 483), it has been made clear from decisions of the Board and the courts that this item is not determinative in itself. Prior to February 1, 1955, the work in question was done by employees on the Light payroll known as district managers. In connection with ,the changeover to the new arrangement existing district managers were tendered contracts which were executed prior to February 1, 1955, but became effective on that date. The format of the 1955 agreement, there being occasional variations in nonsignificant details as among different dealers, is in evidence as General Counsel's Exhibit No 3. The 1955 agreement was the one in effect when Pearson entered into his relationship with the Light on April 1, 1957. Generally the agreement provided for the lease to the dealer of the privilege of acting in that capacity in distributing the Light in a designated district as shown upon a chart maintained at the Light office (and as it might he changed from time to time upon the chart). The parties agreed upon the sale to the dealer of daily and Sunday papers at the wholesale rate agreed to as indicated by an attachment to the agreement (with the provision that it, too, might be fixed from time to time by the Company) The parties agreed to buy and sell a number of copies equal to the needs of the independent carriers within the dealer's district. The dealer agreed to sell to the carriers at the subwholesale price fixed from time to time by the Light. The agreement further called for the dealer to accept the delivery of papers at SAN ANTONIO LIGHT DIV., HEARST CONSOLIDATED PUB. 625 places and times designated by the Light, prohibited the insertion of extraneous ma- terial except with the Light's permission, and called for the dealer to maintain an accurate current list of subscribers and of carriers within his district, such list to be available for inspection by the Company at all reasonable times. The agreement contained the dealers' representation that he had and would continue to have sole and exclusive control over his activities and that he would be the sole contracting party with the independent carriers within his district. The dealer further agreed to devote his energies and those of his contractors to the performance of the agree- ment, and convenanted not to engage in the delivery of any other daily or Sunday paper nor to transfer or attempt to transfer his rights under the agreement. The agreement was terminable either party on 30 days' prior written notice and termina- ble by the Company with or without notice upon breach thereof by the dealer. The form of home delivery dealers' agreement in use on and after March 1, 1958, and executed on that date by Pearson, differed from the earlier form in several re- spects. A provision was added to the effect that any change in the district should be by written agreement between the parties. It was also provided in the amended agreement that a change in the wholesale rate could be effected from time to time by the Light but only upon 30 days' notice. The former provision to the effect that resale by the dealer to independent carriers should be at the subwholesale price fixed by the Company was changed to read merely that resale should be at subwholesale prices. Finally, the provision defining the relationship of the parties was changed in the 1958 format to specifically assert that the relationship between the parties is that of contractor and independent contractor and that neither party should represent it to be an employment relationship. It is clear that before the adoption of these agreements the relationship was one of employment. The district managers were on the Company's payroll and as such subject to regular employment deductions for social security and withholding of income taxes. They participated in employee programs and benefits such as vaca- tion and hospitalization plans, workmens compensation, and group life insurance. They received a car allowance. They checked in at the beginning and end of their workday, their time was subject to the control of the Company and records thereof were kept. They had occasional assistance from Light paid employees. The Light performed the job of determining the number of papers needed on the district, and contracted with and billed the carriers. Also prior to but not after the change, the Light arganged for a substitute when necessary due to illness, vacation, or time off for other reasons. After 1955 none of the foregoing indicia of an employment rela- tionship remained. Essentially the General Counsel's case supporting his contention that the relation- ship is still one of employment consists of numerous evidentiary items tending to lead to the following conclusions: 1. That the Respondent directs and controls the dealers as to the manner and means by which they perform their duties under the agreement to such a substantial extent as to negate independence on the part of the dealers. 2. That Respondent's control over the opportunities for profit substantially nega- tives any entrepreneurial aspect of the relationship. As stated above the point of contact or liason between the Light and the dealers is the zone supervisor. As salaried employees of the Light having responsibility for home delivery within a specified zone, each zone supervisor has, in the case of a city zone, 8 or 9 dealers under his jurisdiction and in the case of the rural zone, 10 dealers. The zone supervisor frequently appears on the dealer's district and observes him in the performance of his functions. The zone supervisor checks the district dealer particularly for the manner in which the dealer encourages the carrier boys in the solicitation of new subscriptions. On occasion and as necessary the zone supervisor may actually intervene in a dealer's meeting with his carriers where he feels it necessary to advance the interest of the Light in securing new subscriptions through the solicitation efforts of the carrier boys. In furtherance of his responsibilities to advance the Light's interest in his zone, each zone supervisor conducts a regular Monday morning meeting. There is a conflict in the testimony which I find unnecessary to resolve, as to the mandatory character of attendance at these Monday meetings. There is evidence that the deal- ers are expected and encouraged by the Light to attend the meetings and in fact most do attend. The evidence indicates that at least some dealers feel it a condition of termination in the event they fail to attend two or more meetings consecutively. A zone supervisor has been, in at least one instance, directed to correct nonattendance of an individual dealer, and on this occasion, Rees went further and himself com- municated with the dealer. On the other hand, as Respondent has quite clearly 597254-61-vol. 1311--41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought out, there is no known instance of a dealer terminated for failure to attend a Monday meeting. The Monday meetings usually last an hour or so and are held at the offices of the Light, each zone supervisor conducting his own group meeting. Under the leader- ship of the zone supervisor there is a discussion of the way in which the dealers as a group and as individuals are performing with respect to such matters as securing new subscriptions, maintaining circulation generally, and handling complaints . The zone supervisors generally are experienced in these matters and give advice to the dealers. There is frequent discussion among dealers and exchange of advice among them- selves. On this aspect of the case Respondent has clearly demonstrated that there is no recorded instance of a discharge or termination of a dealer for refusal either on a single occasion or repeatedly to follow the advice given at the Monday meetings. Curd attends each supervisors ' Monday meeting and in the limited time available to him explains the current promotion and attempts to kindle enthusiasm for it. General Counsel's witness, John Blackman, a district dealer at present but for- merly a zone supervisor , identified General Counsel's Exhibit No. 27, a two-page report form labeled "Supervisors ' Work Sheet," as a form used by zone supervisors in reporting on their observations made on periodic visits with the district dealers. It calls for detailed information to be furnished the Light 's management as to the way in which the dealer is operating his district both respecting delivery and solicitation as well as recordkeeping . Concerning this exhibit, Respondent developed by cross- examination of Blackman and through the testimony of Grady Rees that it was in use for only a short period of time before falling into disuse. Blackman stated that he did not turn any reports in on this form and does not know of others who did. The form was devised by Tilson , Curd, and Rees and run off by the Light for use of the supervisors. Concerning the relationship of the route dealers with the independent carriers who throw the routes within their districts , it is clear that the Light requires that the dealers contract with the carrier boys on the basis of a standard form in evidence as General Counsel's Exhibit No. 15 . Furthermore the procedure by which carriers are bonded for the protection of the dealer and insured against accident are pre- scribed by the Light and universally followed by the dealers. Ordinarily the district dealer recruits new carriers when necessary on his own sources of information usually obtained from other boys already under contract to him. New carriers are occasionally recruited from other sources including adver- tisements in the paper . There are at least two instances reported in the record in which the Light interceded to prevent the dealer from discharging carrier boys found to be undesirable by the dealer. With respect to the actual management of the district and the carrier routes therein, there are several items of control exerted by the Light. For example, it is a standard requirement that the dealer be available between the hours of 5 and 8 p .m. daily and up until 7 a.m. on Sunday for the purpose of receiving information concerning complaints, usually complaints of nondelivery . The Light frowns on the practice of having a person other than the dealer be the recipient of such telephonic informa- tion as to complaints . The importance of the Light's frown in this and other regards is measured by the 30-day cancellation power in the agreement. The size of the carrier route is also of concern to the Light and periodic reports are required of routes exceeding 100 subscribers. The district dealer turns in daily a drawsheet whereby he informs the Light of the number of papers to be delivered him for the following day . A form is furnished for this purpose and additions to the previous draw are to be accounted for by leave slips, deletions by cut slips. The dealer is apparently free to designate the way in which the paper shall be delivered to him-either all at one drop in bulk or at four or five drops throughout his district . There are , however, instances in which the Light has insisted that the dealer count out the papers to each carrier boy rather than leaving them at a drop for the several carrier boys to count out among them- selves. It appears to be the policy of the Light to encourage the maximum number of carrier boys with, if necessary a reduction in size of the individual carrier route. When no carrier has contracted for a particular route it is referred to as a "down" route; when a route is thrown by a carrier boy who is also throwing another route they are referred to as "double" routes. The Light frowns on down and double routes and Pearson testified without contradiction that at one time when he had doubled routes to make the income attractive enough for an adult carrier, Rees sent the zone supervisor out to observe and report on the matter , finally acquiescing in Pearson's arrangement only on a temporary basis. During the short time General Counsel's Exhibit No. 27 was in use reports on down and double routes were re- SAN ANTONIO LIGHT DIV., HEARST CONSOLIDATED PUB. 627 quired on that form. The evidence indicates further, that independently of the use or disuse of General Counsel's Exhibit No. 27, dealers are called upon periodically to report on the numbers of down and double routes. At the heart of the present case lies the vigorous policy of the Light with respect to new subscriptions. Pursuant to that policy the zone supervisors assign quotas to the district dealers. These quotas represent a certain specified number of new subscriptions required to be secured for the particular month. Each district dealer is informed or reminded at the Monday meetings of his quota for the month and of the way in which he is performing to meet that quota. When the dealer appears to be failing to meet his quota he is given pointed written memoranda of reminder from his zone supervisor. Examples are General Counsel's Exhibits Nos. 30 and 31. Contests are maintained whereby the dealers secure prizes, generally in the nature of trips to foreign countries or distant resorts, but sometimes in the form of a cash prize known as a bonus or override. There appears to be some variety in the treatment of dealers for failure to make their quotas. Pearson himself performed quite well with respect to his quota and was the winner of several trips and overrides. Herbert Mann, a route dealer for approximately 5 years, testified that he was informed by Grady Rees that he would have to make his quota each week for 3 weeks or lose his district. Grady Rees who testified at some length about aspects of his relationship with Mann did not deny this statement attributed to him by Mann, though Rees did testify that he knew of no dealer acually terminated for failure to meet his quota. I am convinced on this record that the strength of the Light's concern for sub- scription promotion is matched by the Light's determination to retain substantial control of the manner and means by which such promotion is effected. An outstand- ing example is that testified to by former dealer Davis whose proposal of a method to increase solicitation was rejected by Rees on the ground that the Light favored a different method. The undoubted fact that there are some, indeed many, respects in which the dealers are free to determine on methods of their own does not detract from the conclusion to be drawn from this record that the Light in truth retains such a substantial right of control as to make the relation one of employment. One of the elements to be considered in determining the status of the route dealers is the extent to which their operations are so entrepreneurial in nature as in effect to make them the masters of their own income. In this regard, it appears that the dealer purchases newspapers sufficient for the carriers in his district on the basis of a wholesale rate. Both the 1957 and the 1958 agreements refer to the wholesale rate "as set forth in an attached rider." Neither of the agreements in evidence had the rider attached and the record does not otherwise contain information as to the whole- sale rate nor any conclusive indication as to the extent of variation, if any, from dealer to dealer. It does clearly appear that the price at which the dealers sell to the carriers is almost uniformly 3.3 cents per daily and 12.5 and 10 cents per Sunday copy for four and five Sunday months, respectively. The record indicates that these figures charged the carriers may be regarded as maxima and that occasionally, to subsidize a particularly difficult route or situation, the dealer sometimes charges the carrier less than the prescribed figure. Although Circulation Manager Tilson testified that the route dealer has the sole right to determine what customers he shall make delivery to within his leased area, he conceded that the dealer would not have the right to refuse to serve a customer ready, willing and able to be a subscriber. Furthermore, Pearson testified without contradiction that sometime during 1958, over his strenuous objection, a whole routeful of new subscribers were added to his district. Pearson, at that time, told Rees that the new area assigned to him was so unprofitable that he would want a new rate covering it, but Tilson ruled that the only way to get more money would be to go out and get more subscribers. It also appears that Manuel Villa- longin had his contract as a route dealer terminated because of his refusal to accept as new subscribers some 60 customers with whom he had previous experience as "dead beats." There are absolute prohibitions both in the agreement with the route dealer and in the operating policies of the Light against the route dealers engaging in any competitive operation. For example, the agreement itself contains a flat prohibition against stamping legends on copies of the Light or inserting circulars with the paper for delivery. Although it is clear that the dealers do not check in at the start or conclusion of their workday or otherwise account for their time yet there are instances where dealers have been told to spend more time on their districts and, if necessary, to abandon other enterprises as a condition of continuation of their agreement. Thus Route Dealer Weise was told to get rid of his icehouse which was taking so much time it interfered with the effective performance of his functions as a route dealer. 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And Route Dealer Holley was informed that to perform his functions properly he should not continue to maintain a cattle spread he was operating some 40 miles outside of San Antonio. The Act has always related to "employees." The fact that independent contractors were not included within the legislative coverage has been recognized by the Board from its earliest days. Metro-Goldwyn-Mayer Studios et al., 7 NLRB 662. The classic definition of "independent contractor" is that as set forth in Blacks' Law Dictionary (4th ed.) as follows: One who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of the work. . If the employee is merely subject to the control or direction of the employer as to the result to be obtained, he is an independent contractor; if he is sub- ject to the control of the employer as to the means to be employed, he is not an independent contractor. The question thus becomes, in each case, one in which the entire factual pattern must be assayed to determine whether the relationship of the parties is such that the putative employee is accorded the right to control the way in which the con- tracted task is to be accomplished or whether such control of methods is retained in the hands of the other party to the contract. Clearly the mere recitation in the agreement that the relationship is that of independent contract is not controlling. Smith's Van & Transport Company, Inc. et al., 126 NLRB 1059. Following the Supreme Court's decision in N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, the Congress amended the Act specifically to exclude from the statu- tory definition of "employee" "any individual having the status of an independent contractor." In the Hearst case the Board had found employee status for news- boys selling on the streets at fixed spots and, in reversing the circuit court's decision which refused enforcement of the Board's order, the Supreme Court indicated that accepted legal standards governing the distinction between employees and inde- pendent contractors and developed under other fields of law should yield to the Board's administrative judgment as to the economic realities in the light of the purposes and policies of the Act. The legislative history of the 1947 amendment specifically excluding independent contractors indicates the twofold intent of Congress (1) to express its disapproval of the conclusion reached by the Board in the Hearst case and (2) to require that the Board apply the traditional legal concepts applicable to the distinction between employees and independent contractors and that the courts see to it that the Board does so. (1 Legislature History LMRA pp. 309, 536.) The 1947 amendments did not, however, intend to alter the traditional legal concepts. N.L.R.B. v. Morris Steinberg, et al., 182 F. 2d 850 (C.A. 5). Both Respondent and General Counsel point to United States v. Silk d/b/a Albert Silk Coal Company, 331 U.S. 704 as delineating the considerations applicable to the issues here. There the Court said: ... degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required in the claimed independent operation are important for decision. No one is controlling nor is the list complete. .. . where the arrangements leave the driver-owners so much responsibility for investment and management as here, they must be held to be independent contractors. These driver-owners are small business men. They own their own trucks. They hire their own helpers. In one instance they haul for a single business, in the other for any customer. The distinction, though im- portant is not controlling. It is the total situation, including the risk under- taken, the control exercised, the opportunity for profit from sound manage- ment, that marks these driver-owners as independent contractors . 331 U.S. 704 at pp. 716, 719. Respondent relies strongly on The Times-Herald Printing Company, 94 NLRB 1785; Carter Publications, Inc., 100 NLRB 599; P.G. Publishing Company, 114 NLRB 60; and Piedmont Publishing Company, Case No. 11-RC-1344, issued June 16, 1960 (not published in NLRB volumes). I find the instant case distinguishable. In Times-Herald, as the Board noted, the record showed the dealers to be "virtually unrestricted by the Employer in the conduct of their business." Carter Publications noted that in the field of procurement of new subscriptions, of substantial significance in the instant case , group meetings with dealers were only occasionally held and even when held did not prescribe methods for solicitation not require dealer par- SAN ANTONIO LIGHT DIV., HEARST CONSOLIDATED PUB . 629 ticipation in subscription campaigns . In P.G. Publishing Company, the dealers' territories were transferable and upon sale of a territory the list of supervisors be- came the vendee dealers' property; furthermore, there did not appear to be direc- tion and control of the solicitation for new subscribers. Finally, Piedmont Publish- ing Company also involved a situation lacking in employer direction and control over solicitation. In view of the limited opportunities for profit, the strict regulation of the dealers' status vis-a-vis the carriers and the substantial and detailed control exercised by the Light over the dealers' methods of operation I find the relationship here to be one of employment. Smith's Van & Transport Company, Inc. et al., 126 NLRB 1059. The fact that the dealers are shown to exercise individual judgment on many items such as promotions of their own for carriers and, normally , in selection and retention of carriers does not detract from the compelling force of the many in- stances whereby the Light is shown to direct the manner and means of its dealers' operations. Respondent asserts that if the dealers be found employees, a necessary corollary would be that they are supervisors, citing Hollywood Citizen-News, 67 NLRB 363 and 97 NLRB 428 in this respect. Analysis of those decisions reveals that the company itself retained the right to and in fact did exercise control over the carrier boys both as to their hire and fire and as to methods of performing their tasks, resulting in an employment relationship and consequent supervisory status for the managers. In the instant case the evidence fails to rebut the presumption that the carriers contract with the district dealer which purports to establish an independent contractor relationship does just that. I find that Pearson was at all material times an employee of Respondent. D. The termination of Pearson In the course of the regular Monday morning dealers ' meeting on February 1, 1960, Curd, at the conclusion of his explanation of the new promotional program, referred to the fact that a number of dealers had merchandise prizes out on consignment and that such prizes, if not to be given out in the dealer's own district, should be returned that day for use in other districts. Curd further stated that it was imperative that the prizes be brought in that day and if the dealers did not have them they would have to go home and get them. At this stage Pearson, in furtherance of his program of getting additional information concerning elements of control by the Light over the dealers, asked Curd whether he could quote him on that. Curd nettled by the inquiry, told Pearson he could do anything he wanted. Shortly thereafter Curd terminated the meeting, went into Tilson's office, and stated to Tilson that it would be impossible for him to participate further in promotional meetings in view of Pearson's attitude . Tilson called Rees in to discuss the situation with him and they then and there, after considering all factors including a bill delinquency , decided to prepare a letter terminating Pearson 's contract. The following morning Rees called Pearson early at his home and told him it was important that he come down to the Light. They went together to see Tilson and the latter handed Pearson a letter of termination . Pearson asked the reason for the termination and was told by Tilson that he reckoned Pearson knew the reason, namely the preceding day's interruption of the meeting. Pressed by Pearson for added reasons, Tilson referred to Pearson's "rabble rousing" and "country club lawyer tactics," and to his tearing down of Tilson's organization. The meeting of the three continued for some time with Pearson doing most of the talking and still attempting to gain admissions from the Light personnel with respect to items of control. Rees testified that Pearson himself introduced the subject of the Association during the course of this meeting. The evidence indicates that one of the zone supervisors was aware at or about this time of the resurgence of the Association . Rees, whose demeanor impressed me as that of a thoroughly credible witness, testified, however, that he had no knowledge of the Association's resurgence. Further Rees testified, and in this he was corrobor- ated by Curd and Tilson, that their conversations concerning the matter of ter- minating Pearson in no way touched upon his relationship with the Association. To show knowledge by Respondent of union activities on the part of Pearson General Counsel has adduced the testimony of Dealers Hammers and Warren. Each of these witnesses testified that on February 2, the day of Pearson's termination, they were asked by their zone supervisor, 0. D. Harris, whether or not they knew anything about an association or a union . This knowledge of association activities could well have been generated by Pearson in the course of the conversation in Tilson's office following his termination. Hammers further testified that Harris made the statement to him at that time that Hammers would be well advised to '630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refrain from participation because what happened to some of the others might happen to him. I cannot attach vital significance to this cryptic statement by Harris. In view of the straightforward denial by Rees that association activities were discussed in connection with the termination of Pearson and in the light of un- doubted good cause for the termination, I conclude that Harris was merely voicing general observations of his own, not shown to be those of the Light. As was stated above in consideration of the issue as to the nature of the relation- ship between the Light and the dealers, I feel that the vigorous subscription policy of the Light is the key to both issues in this case. I see no reason to doubt the verity of the claim that the motivating reason for the discharge of Pearson was his real or fancied rudeness in the Monday meeting of February 1, 1960, considered in the light of a prior history of similar difficulties. Pearson had earlier difficulties in meetings with Rees, with Pearson's former Zone Supervisor Rollins, with Baylor Randle, Pearson's zone supervisor at the time of his termination, and with Curd himself. In the course of a Monday morning meeting presided over by Zone Supervisor Randle in August 1959, Pearson used obscene language in objecting to the matter under discussion. Thereafter within a week or so he engaged in another loud argument at Randle's desk in the Light building within hearing of other supervisors and dealers. At that time a letter was written to Pearson terminating his relationship as of October 1, 1959, but upon Pearson's promise to improve and apology for his past misgivings the decision was made to revoke that termination. The importance attached by the Light to the attitude and demeanor of dealers during the course of the regular Monday meetings with their zone supervisors is also illumined by the testimony of former dealer, Davis, to the effect that Grady Rees 'terminated his contract as a route dealer in the fall of 1955 following a relatively mild altercation between the two concerning Davis' conduct during a Monday meet- ing in checking his ABC list with a pencil in his hand thereby failing to give full ,and undivided attention to the speaker. t The burden of proof is on the General Counsel and he must sustain the burden of proving by a preponderance of the testimony on the record considered as a whole that at least one of the reasons for the termination of Pearson's contract on Febru- ary 2, 1960, was Pearson's activity on behalf of the Association or his activity in associating with others for mutual aid and protection. No reason was given Pearson for his termination according to the testimony other than the cryptic remark "you know what it is for," followed by the reference to "rabble rousing." On this record it is at least equally inferable that Tilson had in mind that Pearson well knew of his prior delinquencies in this regard as that Pearson should assume that the Association or his concerted activities were the object of Tilson's cryptic remark. The fact that at one point in his testimony Tilson asserted that Pearson's rudeness in the February 1 and earlier meetings was the sole reason for his termination and that at other stages in his testimony as well as in his written statement furnished the Board (General Counsel's Exhibit No. 5) he referred to other additional con- siderations does not impress me as of controlling significance. I do find that any discrepancy or variation in this regard is so slight and explainable that it adds nothing to the General Counsel's case. The fact that Pearson was terminated shortly after the renewal of his activities on behalf of the Association is not in itself sufficient to establish impropriety in his discharge. Indiana Metal Products Corporation v. N.L.R.B., 202 F. 2d 613 (C.A. 7). Nor can it be said that the record as a whole establishes antiunion motivation par- ticularly in view of the absence of discrimination against the participants in the 1958 concerted activities and the salutary labor policies in other branches of the Light's operations. Eastern Massachusetts Street Railway Company, 110 NLRB 1963, affd. 235 F. 2d 700 (C.A. 1), cert. denied 352 U.S. 951. I conclude and find on the basis of the record as a whole that the General Counsel has not sustained the burden of proving impropriety in Pearson's termination. Upon the basis of the above findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged and (7) of the Act. 2. The Association is a labor of the Act. 3. The Respondent has alleged in the complaint. in commerce within the meaning of Section 2(6) organization within the meaning of Section 2(5) not violated Section 8(a)(3) and (1) of the Act as [Recommendations omitted from publication.]