A. S. Abell Co.

238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. S. Abell Company and Melvin K. Scherer Hearst Consolidated Publications, Inc. and Melvin K. Scherer.. Cases Nos. 5-CA-1905 and 5-CA-1906. May 04, 1960 DECISION AND ORDER On February 15, 1962, Trial Examiner Harold X. Summers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter the Respondents filed exceptions to the Inter- mediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order. MEMBER RODGERS. dissenting : Considering the entire record in the light of Section 2(3) of the Act, the clear legislative history pertaining to that section,' and the Board and court decisions,' all of which requires the Board to apply common law standards in here determining the relationship of the carriers to the Respondents, I would find that the carriers are inde- 1 Congress , in defining "employee" in Section 2(3) of the Act, specifically excluded from that definition any individual having status of an independent contractor " Moreover, the legislative history of Section 2 ( 3) also reveals that Congress intended the term "independent contractor" to apply to those who "undertake to do a job for a price, de- cide how the work will be done , usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods , material, and labor and what they receive for the end result , that is, upon profits " Legislative History of the Labor Management Relations Act, 1947, U S. Govt Fruiting Office, 1948, vol. 1, p . 309. See also same volume , pp 536-537, and vol 2, pp 1537 and 1617. 2 The Kansas City Star Company, 76 NLRB 384, Hearst Consolidated Publications, Inc., et at, 83 NLRB 41; The Times Herald Printing Company, 94 NLRB 17-85, Carter Publications, Inc., 100 NLRB 599; Los Angeles Evening Herald and Express Division of Hearst Publishing Company, Inc, 102 NLRB 103; P G. Publishing Company, 114 NLRB 60; American Broadcasting Company, et al , 117 NLRB 13; N L R.B v Morris Steinberg, et at , d/b/a Steinberg and Company, 182 F. 2d 850 (C.A. 5) ; and National Van Lines, Inc. v. N L .R B., 273 F. 2d 402 (CA. 7). 137 NLRB No. 36. A. S. ABELL COMPANY 239 pendent contractors , and are not employees within the meaning of Section 2 (3). Accordingly, I would dismiss the complaint. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges of unfair labor practices filed on May 10, 1961, against A. S. Abell Company and Hearst Consolidated Publications, Inc., the General Counsel of the National Labor Relations Board issued a consolidated complaint on October 6, 1961, alleging that Respondents had engaged in unfair labor practices in violation of Section 8(a) (1) of the National Labor Relations Act, herein called the Act. Answers of Respondents admitted some allegations of the complaint, denied others, and denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Harold X. Summers at Baltimore, Maryland, on November 13, 14, and 15, 1961. All parties were afforded full opportunity to present evidence, to examine and cross-examine witnesses, to argue orally, and to submit briefs. Briefs have been filed by the General Counsel and by each Respond- ent, which briefs have been fully considered. Upon the entire record in the case,' including my evaluation of the credibility of the witnesses based upon the evidence, and upon my observation of their demeanor, I make the following: FINDINGS OF FACT 1. THE COMPANIES A. S. Abell Company, hereinafter called Abell, is and has been at all times ma- terial herein a corporation organized and existing under the laws of the State of Maryland, having its principal office and place of business at Baltimore, Maryland, where, in addition to its ownership and operation of a television broadcasting station, it is engaged in the printing and publishing of the so-called Baltimore Sunpapers, The Sun, The Evening Sun, and the Sunday Sun. In the course and conduct of its newspaper operations, during the 12 months preceding October 6, 1961, a repre- sentative period, Abell did a gross volume of business amounting to in excess of $1,000,000; it subscribed to interstate news services for which it paid a substantial amount of money; it published nationally syndicated features for which it paid a substantial amount of money; and it purchased products and materials of substantial value from points located outside the State of Maryland. Hearst Consolidated Publications, Inc , hereinafter called Hearst, is and has been at all times material herein a corporation organized and existing under the laws of the State of Delaware, engaged in the printing and publication of newspapers in various States of the United States, including the Baltimore News-Post and Sunday American, which are published at its plant and office in Baltimore, Maryland. In the course and conduct of its operations at Baltimore, Maryland, during the 12 months preceding October 6, 1961, a representative period, Hearst did a gross volume of business amounting to in excess of $1,000,000; it subscribed to interstate news services for which it paid a substantial amount of money; it published na- tionally syndicated features for which it paid a substantial amount of money; and it purchased products and materials of substantial value from points located outside the State of Maryland. Both Abell and Hearst, sometimes herein collectively referred to as the pub- lishers, are engaged in commerce within the meaning of the Act. If. THE UNION Local 355, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called Local 355, is a labor organization within the meaning of the Act 2 i On December 20, 1961, I issued an order to show cause, inter alia, why the transcript of the hearing should not be corrected in specified respects No good cause to the con- trary having been shown, the corrections indicated In the order to show cause, which is received in evidence as Trial Examiner's Exhibit No 1, are hereby ordered made. 213y inadvertence, a stipulation to this effect failed to appear in the transcript of the hearing The order to show cause which is now in this record as Trial Examiner's Exhibit No. 1 brought this to the attention of the parties. No good cause to the con- 240 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD M. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Abell is engaged in the production and distribution of a morning, an evening, and a Sunday newspaper, and Hearst is engaged in the production and distribution of an evening and Sunday newspaper, in the city of Baltimore. In their operations, both publishers recognize and deal with a number of labor organizations for various groups of employees. The freshly printed Sunpapers are transported, in bulk, by truckdrivers to a number of prospective retail outlets: stores, street corners, city carriers, rural carriers, and country or small-town dealers. The position of rural carrier was originally designed to effect newspaper distribution to homes in rural areas between cities and towns; the areas which they covered was truly rural in character. More recently, the same areas have been infiltrated by home developments and com- munities, but the method of distribution has persisted. Abell now has 72 rural carriers 3 Hearst's distributive system differs only in organizational details Its equivalent of rural carriers are its motor carriers, who fall within one or another division of the city circulation department, depending upon the locations of the areas served by them. There are now in excess of 160 motor carriers? During World War II, as an economy measure, certain rural/motor carriers were permitted to handle both the Sunpapers and the News-Post/American in their prescribed areas. The practice has continued, and there are now between 46 and 54 such individuals, known as combination carriers. This case involves, among other things, the status of Abell's rural carriers and Hearst's motor carriers, including the combination carriers. Unless otherwise indi- cated, they will be referred to herein collectively as "carriers," a term not to be construed as including city or nonmotor carriers. B. Union activity In the spring of 1961, Melvin Scherer,5 a combination carrier established contact with Local 355 for the purpose of exploring the possibility of organizing the carriers. Four meetings were held; the first on March 7 and the second on March 14, 1961. In attendance were carriers and representatives of Local 355. C. Employee or independent contractor? The General Counsel contends that Abell and Hearst, through supervisors and agents, violated Section 8 (a) (1) of the Act by (1) interrogating carriers as to their membership in, adherence to, or activities on behalf of Local 355, (2) threatening them with loss of employment if they became or remained members of Local 355 or selected Local 355 as their bargaining representative, and (3) threatening them with a refusal to recognize or to bargain with Local 355 if a majority of them selected Local 355 as their bargaining agent. Without making any concessions in any other respect, Respondents contend that the carriers are independent contractors and not employees; that, therefore state- ments, if any, made to them cannot constitute 8(a)(1) violations. Since this is a threshold question, it will be discussed prior to any treatment of what occurred and whether any such occurrences constituted interference, restraint, or coercion. The Act does not precisely define the term "employee." Section 2(3) provides, in pertinent part, that the term shall not include "any individual having the status of an independent contractor." The legislative history of the section shows that Con- gress expressly excluded independent contractors from the definition of "employee" in order to remedy what Congress thought was an unwarranted expansion of that definition in N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111, to include persons trary having been shown it is hereby ordered that the transcript be considered to contain a stipulation that Local 355 is a labor organization within the meaning of the Act. 8 The Audit Bureau of Circulation (ABC), a nonprofit organization designed to authenti- cate circulation figures for presentation to advertisers, has set up three "sales zones" in the Baltimore area: the "city zone," consisting of Baltimore city and immediate suburbs; the "retail zone," a strip surrounding the city zone ; and an "all -other zone." the area beyond the retail zone Most of Abell's rural carriers perform their duties within the retail zone. 4 Thirty-two in ABC's city zone, 48 in the retail zone, and over 80 in the all -other zone. 5 The Charging Party herein A. S. ABELL COMPANY 241 who would be considered independent contractors at common law.6 Congress broadly viewed as "employees" persons who "work for wages or salaries under direct supervision" and as "independent contractors" persons who "undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but on the difference between what they pay for goods, materials and labor and what they receive for the end result, that is, upon profit." ° As shown by the legislative history of amended Section 2(3), whether in any given situation the relationship at issue is that of employer-employee or that of inde- pendent contractorship must be determined by common law concepts.8 Generally, under the common law test of the "right of control," an independent contractor relationship has been found where the person for whom the work is to be done, while he may control the result to be accomplished by the work, does not control the details and means by which that result is accomplished.9 As was pointed out by the Supreme Court in the Hearst case, supra,1° the application of common law concepts to given fact situations is no simple task. It becomes necessary for me to .place each facet of the publisher-carrier relationship under close scrutiny. The carrier agreement: The formal basis of the relationship between publisher and carrier is an agreement or contract. There is some indication that, until some 5 years ago, not every carrier entered into a written contract. But, within the past 5 years, all new carriers, and most if not all old carriers who had not previously signed, have become parties to written contracts. I find that all carriers are cov- ered, expressly or impliedly, by the terms of one or both of the agreements here described.ll Under the Abell contract, the carrier, in consideration of his privilege to sell and deliver the Sun (morning, evening, or Sunday, as specified), agrees to pay monthly for newspapers shipped to him at rates set forth, subject to change by Abell upon 10 days' notice; agrees to promote and to increase the sale of Sunpapers in his territory; and agrees that Abell may terminate the relationship upon the carrier's failure to meet his financial obligations or to render satisfactory service. There is also provision for termination by either publisher or carrier upon 10 days' notice. Finally, in the case of a minor-carrier, there is provision for a guarantee of pay- ment by an adult. Similar terms appear in the News-Post/American contract, except for a number of items: The carrier agrees that, in the event he gives up the route, he is to make every effort to find a successor and to turn over to his successor the list of sub- scribers; he is to maintain a current and accurate list of subscribers, to be the property of Hearst and to be furnished to it upon request; he is to make no deduc- tions from his monthly bill except for those papers for which the subscriber refuses to pay as a result of late delivery to the carrier by the publisher and for extra papers delivered to but not ordered by the carrier; and he is to post a specified amount of money as security for payments of monthly bills owned by him, interest to be paid by Hearst on such bond. The agreement also provides that it may be canceled by either the carrier or Hearst without cause, if by the carrier with 30 days' notice, if by Hearst without notice. Finally, one of the contract forms used by Hearst provides that no interpretation of the agreement shall constitute the carrier an employee of Hearst. In the case of both Hearst and Abell, the contract provides for the delivery of no newspaper other than that of the publisher involved-which provision is stricken in the case of all combination carriers. Where the signature of a publisher representative is called for, either for execu- tion or for approval of the agreement, roadmen have signed for the publisher 12 a See, e g, IT Rept 245 on IT R. 3020, 80th Cong, 1st sess., p. 18: and H Conf. Rept 510 on HR. 3020, 80th Cong , 1st sess , pp 32-33 71-T Rent. 245, supra 8 N L R B v Nn-Car Carriers, Inc , 189 F 2d 756 (CA 3), cert denied 342 U S 919 See also N L R B v Morris Steinberg, et al , d/b/a Steinberg and Company, 182 F 2d 850, 854-855 (CA 5) 6 27 Am Jur, Independent Contractor, § 2, United States v Silk, 331 U S 704: N L R B v. Morris Steinberg. et al , d/b/a Steinberg and Company, supra. at 857-858, Williams v United States, 126 F 2d 129, 132-133 (CA. 7), cert. denied 317 U S. 355 10 At pp 120-124 11 Several contract forms are in the record Although they differ in detail, the sub- stance is as described below 12 Both publishers employ roadmen, who are within the respective circulation depart- ments. Among their other duties roadmen are charged with the responsibility of Iran- 649856-63-vol. 137-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The carriers' geographical limitations: Each carrier has the exclusive right to deliver the newspapers of a publisher-or, in the case of combination carriers, of both publishers-within a defined area, called a territory or route. Both carrier and publisher are aware of 13 and-in connection , for example, with the addition of new customers-adhere to the boundaries of the route. From time to time, depending on such things as the establishment of a new or growth of an old community , new routes are created ; and, from time to time, as an accommodation to changing circumstances , the boundaries of established routes will be changed . On occasion , the change will be initiated by a carrier 's request. Any proposed change, to use the publishers' terminology, is "negotiated" between publisher and affected carrier or carriers , and every attempt is made to satisfy the carriers' needs or desires, to the extent that the satisfactory delivery to the reader is not adversely affected, but the eventual disposition of route boundaries, I find, lies with the publisher. Where agreement cannot be reached, he makes the decision. Tiansferability of routes: When a carrier decides to give up his route, he is ex- pected to find, and he often does find, a successor. On the other hand, he cannot sell or transfer his route to anyone else. Carriers' compensation : Basically, the carriers receive, for their services, the difference between the price they pay the publishers for the papers given them and the price they receive from the readers and the retail stores which they serve.14 Within this broad framework, they must pay their own distribution expenses except for a mileage allowance and the cost of certain supplies , as discussed elsewhere in this report; they exercise their own discretion as to the extension of credit to their customers ; and they bear any financial losses incurred as a result of overordering or nonpayment by their customers. The carriers' cost price, the home retail price which they charge home subscribers, and the wholesale price which they charge stores are fixed by the publishers. While the testimony on the first two items is uncontradicted , that on the third requires some clarification .15 At least three witnesses testified that the publishers set the wholesale price ; exhibits corroborated this with respect to Hearst , and Abell's witnesses did not testify concerning the item. Witness Sechtman , for Hearst, testi- fied that, in effect, carriers could fix their own wholesale rates since there was a difference in the price charged the carrier between papers to be delivered to homes and papers to be delivered to retail stores . I find this to mean that, by failing to report that they had delivered some papers to stores instead of to the homes, carriers could thereby increase their profits; this does not, however . bear upon their discretion to fix wholesale rates. The same witness cited an incident wherein a carrier was given an opportunity to lower a wholesale rate in order to meet com- petition from another division of the publisher . This does not negate the inference that the publisher had fixed the rate being charged by the carrier ; on the contrary, it supports a finding that the publisher , having fixed the original wholesale rate, could also permit lowering of the rate under appropriate circumstances. Carriers are billed monthly by the publishers , payment therefor to be made by the 10th of the following month Payments are made to the publishers ' roadmen or, more often , directly to the publishers. Collection from home subscribers is made monthly on a door-to-door basis by carriers.16 The details of collecting are left to the discretion of the carrier.17 Some dling all circulation problems which arise in specified geographical areas ( larger than those of the carriers ) In the course of the performance of their functions, they ire the publishers' point of contact with the carriers (For the freouency of contact see infra ) I find them to be agents of the respective publishers , for the purpose of communicating company policy on the delivery of and collection for newspapers "Abell and Hearst maintain records through which they can ascertain the route within which any designated location falls 14 For convenience ' sake , I shall sometimes refer to the price charged the carriers as the carriers' cost price, the price which they charge home subscribers as the home retail price, and the price which they charge retail stores as the wholesale price. 151n its brief , Hearst implies that wholesale rates may be fixed by the carrier. 16 Or their designees-of which more later 17 Although one witness testified that she was criticized for leaving monthly statements with customers, thus giving them the impression that they should leave their money in delivery boxes , she further testified that she did not discontinue the practice I find that the publishers allow carriers to use whatever method of collection they desire Both publishers furnish "collection cards" suitable for use as a customer's evidence of payment and Hearst furnishes forms suitable for use as a statement or as a receipt ; carriers are free to use or not to use them A. S. ABELL COMPANY 243 customers-at their own option-send checks directly to the publishers, which amounts are credited to the carriers on their next monthly bill. For the expense which might be incurred in making collections, some carriers 18 receive an extra transportation allowance. In addition to the regular mileage allow- ance received by them-see infra-they receive a mileage allowance amounting to an extra trip per week. This allowance appears as a credit on their monthly statements. Carriers' receive an extra compensation, or subsidy, for delivery of the morning Sun. The amount varies from carrier to carrier. Carriers, at their own discretion and without consultation with or notice to the publishers, may extend credit to customers. Thus, customers have been allowed to be in arrears at least three monthly payments. If a customer does not pay his bill, the carrier sustains the loss. If a carrier over- orders, he sustains the loss.19 For purposes of financial risks, the newspaper is treated as if title has passed from publisher to carrier when it has been delivered to the car- rier's pickup point by truck. Much has been made of a credit given carriers by the publishers for newspapers which were delivered to them during one, perhaps two, instances of inclement weather. There were no more than two such occasions during the past few years. In each case, deliveries from the loading platforms to the carriers' pickup points ran late. Where a newspaper was never delivered or was delivered so late that the cus- tomer refused to pay for it, there was a serious question as to whether the carrier or the publisher was responsible for the nonpayment. At any rate, the publishers, to settle the matter, decided to give credit to carriers for all papers during these periods for which their customers had not paid.20 Payroll deductions: The publishers make no deductions from the carriers' com- pensation for social security or income taxes. As for persons engaged by the carriers to assist in the delivery of newspapers, to the extent normal payroll deductions have been made-they have been made in some cases, not in others-they have been made by the carriers. Use of help: Usually, the carriers personally perform the duties of picking up, delivering, and collecting for newspapers on their routes. However, there is no restriction upon their utilizing helpers or substitutes, on a pay or nonpay basis; and many carriers, on many occasions-some on a more or less regular basis-have used helpers or substitutes. In at least one instance, the route's delivery, in one individual's name, was a "family affair"; in another, a carrier uses his son, himself a carrier, for part of the father's duties, on a regular basis; and carriers will "cooperate" with car- riers operating contiguous routes. In cases of illness, or desired vacations, the carrier must make arrangements to have his route serviced in his absence.21 Carriers using helpers or substitutes need not consult with or notify the publishers of the fact. The publishers do not know what carriers use helpers or substitutes, and they are unaware of the identity of any such helpers or substitutes. Within this framework, there is one check. Should Abell become aware that a helper or substitute is performing unsatisfactorily, it will place and has placed restric- tions on the use of such person 22 Outside activities: There is no restriction on carriers' being engaged in other ac- tivities, employment, or self-employment, except to the extent that it interferes with the delivery of the publishers' newspapers. An unknown number of carriers are in fact engaged in such activities. Bond: Carriers are required to post a cash bond with the publisher or publishers for whom they make deliveries, to insure payment of their monthly statements. The amount of the bond varies with the carrier and with the times; the rough measure is that it is equivalent to the carrier's "draw" for 9 weeks. Hearst pays interest on money posted with it as bond. The bond is usually built up by installments reflected in the monthly statements. By mutual agreement of carrier and publisher, it can be increased or lowered. For example, a carrier may, for personal reasons, withdraw sums from his posted bond. Carriers' customers: As indicated, the carrier serves all subscribers within a pre- scribed territory. 39 The two witnesses who testified to this effect were News-Post/American carriers. 19 Except under special circumstances-which I find to be isolated occurrences-where- under, by special agreement, the publisher has undertaken to give credit for "returns" by certain retail customers of carriers. 20 They also made deductions from the ABC circulation reports. ' In cases of emergency , the publishers, through roadmen or solicitors, will provide some help. n The record contains no similar testimony respecting Hearst. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The carrier himself maintains day-to -day records of the identity of his customers. Depending upon his ability and, perhaps , inclination, the records are more or less up-to-date. There is evidence in this record that the customers' lists can become something less than accurate , if not downright confused . Also, there is evidence that-for example , upon a change of carrier-a subscriber list must be totally reconstructed. The publisher does not maintain an up-to-date list of subscribers . Once a year (formerly twice ) each carrier must submit a list of his customers , with addresses, to the publishers in order to satisfy the requirements of the Audit Bureau of Circula- tion . The list thus submitted is accepted at face value by the publishers; it is not checked for accuracy . Although it may occasionally be used to locate a given individ- ual, I find that it is not a running, current , and accurate list of subscribers in the hands of the publisher. On the other hand, although it may not be under constant enforcement , I find that the publishers regard the list of customers to be their own property, and that the carriers are under a continuing requirement imposed by the publishers to maintain a current, accurate list of subscribers to be made available, upon request, to the publisher. As noted earlier, this is specifically set forth in the Hearst-carrier contract; in addition, I find, it is an implied condition of the Abell-carrier relationship 23 Changes in a carrier's "draw"-the number of papers delivered to him-are initi- ated by the carrier himself. New customers may have been obtained through his own efforts or may have come to his attention through the publishers as a result of their solicitation or direct contact by the new customer. "Stops"-subtractions from his requirements as a result of subscription cancellations or transfers to another terri- tory-are normally first known to him alone. In either case, the publisher continues to deliver an unvarying number of papers until the carrier notifies them of a change.24 A carrier may not refuse to serve a subscriber in his territory except for that customer's failure to pay for papers delivered . (As has been seen, it is within a carrier's discretion whether, and to what extent, to extend credit to a customer; and the publisher will normally raise no objection to a carrier 's determination that he no longer wishes to serve a customer because of that customer's failure or refusal to meet bills.) For example, a carrier may not stop delivery because of an altercation with a customer as to where the delivered paper should be placed, without permission of the publisher. Transportation: Because of the loads and distances involved , the carriers' pickup and delivery of newspapers require the use of an automobile . The automobile, in each case, is furnished by the carrier.25 The automobile bears no legend or markings identifying it with either publisher. For the use of his automobile, above and beyond any other compensation, the carrier is paid a mileage allowance , which appears at a credit on his monthly bill 26 If he is a combination carrier, payment of his mileage allowance is shared by the two publishers, to the extent of their respective interests. The mileage allowance is fixed by actual measurement of the route-miles traveled and is subject to change as the distance changes The determinant of the number of miles traveled as the odometer , as checked by the publisher's roadman riding along with the carrier. Out of his mileage allowance, the carrier is expected to pay for fuel, oil and lubri- cation, repairs , tires, depreciation , and insurance The testimony on whether automobile liability insurance is required is conflicting Until several years ago , carriers were regularly asked about their insurance; more recently, this practice has stopped At this time, prospective carriers are asked about their insurance , presumably as a measure of their all-round responsibility. Cer- tainly, no insurance rider in favor of either publisher is required, and the record is bare of any specified amount of insurance which is alleged to be required. On the basis of this record, I find that: ( 1) a carrier-contract would not be tendered to an applicant who did not carry insurance, but (2) the preponderance of the available 29 Uncontradicted testimony in this record revealed that, on one occasion, when a carrier was in financial difficulties , representatives of both publishers asked for his list of sub- scribers and spent 2 hours checking through it a In the case of Hearst . subtractions from the draw must come to the publisher's attention by a mailed card which , among other things , states the reason for the stop In the case of Hearst, the publisher can request and on occasion has requested details on stops 25 Some carriers have more than one automobile at their disposal 'The mileage rate, which is established by the publishers , is currently 9Y2 cents A. S. ABELL COMPANY 245 evidence does not establish a continuing requirement that the carrier maintain auto- mobile liability insurance 27 Supplies and equipment: Besides an automobile, newspaper distribution by the carrier requires very few supplies or equipment. Delivery tubes or cans, along with posts, brackets, and fittings, are supplied by the publishers at no cost to the carrier.28 It is the responsibility of the carrier to install the tubes, but, in some cases, they will be put up by a subscription solicitor having no connection with the carrier. Coin-box paper racks are available for use by carriers, which racks remain the property of the publisher. The publishers furnish mouthy collection cards, to be retained by the customer as evidence of payment. (As found earlier, carriers are free to use or not to use them.) Also, Hearst, upon request of the carrier, provides the statement/receipt form alluded to earlier. Carriers may purchase rubberbands, waterproof bags, and punches from the publishers or, I find, from any other source. Controls on delivery process: Carriers are required to deposit newspapers at desig- nated locations at the subscribers' homes-usually, in tubes. When a carrier fails so to make delivery, and it comes to the attention of the publisher, a "complaint" slip is dispatched to the carrier. When a carrier, for personal reasons, has chosen a loca- tion for delivery, either on a single occasion or as a regular practice, which is at odds with the customer's desires, the publisher will cause the carrier to remedy the situa- tion29 In one instance which was the subject of testimony herein, a carrier who desired to stop service to a customer because of a pay deduction based on delivery of the newspaper at the "wrong" location, was told by the Hearst representative that the carrier would have to continue serving the customer or lose the route so Despite testimony to the contrary, the publishers do not here concede that they place deadlines on the hours of delivery of newspapers; they contend only that they are interested in a result-a reasonable paper in reasonable time; the person who makes the decision, they say, is the customer. Be that as it may, on this record, I find that, whether inspired by customers' complaints or otherwise, the publishers re- quire the carriers to make delivery by a reasonable hour-the morning Sun by 7 a in. or thereabouts; the Evening Sun and News-Post by 4:30 to 6 p.m.; and the Sunday papers by 8:30 to 9 a.m. With respect to the Sunday papers, the supplements-magazine, comic, classified advertising, and other nonnews sections-are delivered to the carrier on Saturday afternoon. But he may not, without permission from the publisher, deliver the "supps" to the subscriber prior to and separately from the main sections. Finally, the carrier may deliver no other newspapers, handbills, or other foreign matter along with the publishers' newspapers. Contacts with company personnel: Contacts of carriers with the publishers are quite limited. Truckdrivers employed by one or the other of the publishers make daily delivery of papers to pickup points; the publishers dispatch financial statements monthly; by transmittal form accompanying the papers, by mail, or by telephone, routine messages are communicated. In addition, roadmen of the publishers make necessary personal contacts. The contacts are ad hoc contacts-collection of arrearages, complaints which need special handling, and "troubleshooting" in general. The roadmen have a variety of duties; personal dealings with carriers generally, and with any given carrier in particular, take only a minor portion of their time. Months may pass without contact between an individual carrier and his roadman?i In short, absent "trouble," carriers' contacts with company personnel are few and routine. Termination of relationship: As earlier indicated. Abell's carrier agreement is ter- minable by Abell upon the carrier's failure to meet his financial obligations, and by 27 Hearst has never been involved in a lawsuit arising out of a carrier's automobile accident; Abell has been involved in one. 28 Separate tubes by Abell and Hearst. 291 assume, and find, that the publisher will use reasonable standards in determining what position to take; that he would not, for example, side with a customer who was acting unreasonably 29 Later when the customer fell into arrears, the carrier was permitted to stop service. 81 A formal company meeting of carriers, held 5 veers ago, was testified to. I find this to have been for a special purpose-treatment of vacationing subscribers-and to be isolated. 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either Abell or the carrier upon 10 days' notice. I find this to mean that Abell may terminate without notice for either of the causes mentioned and that either party may terminate upon 10 days' notice, with or without cause. Hearst's contract permits either party to terminate with or without cause, with Hearst obligated to give no notice and the carrier obligated to give 30 days' notice. The record here alludes to three specific terminations 32 In November of 1960, Gladys Gabell, a combination carrier, was given 3 days' notice of termination of contract by both Abell and Hearst. The reason for the action does not appear in the record. On March 31, 1961, after he had served his papers that day Melvin Scherer, a combination carrier with 10 years' service, was told by Abell representatives that the Company was taking over his route as of next day-that he could work, however, on the next 2 days 33 Next day, Hearst representatives informed him that, although the News-Post had not terminated his relationship with them,34 they, along with Abell, were converting the route to delivery by boys35 On March 31, 1961, Lawrence Ladd, a combination carrier, was having serious financial problems. He was in arrears on his payments to the publishers, he was in debt elsewhere, and his records of customer payments were hopelessly snarled. On that date, citing his financial situation, representatives of Abell terminated his con- tract. Later that day, because he believed that continued delivery of the News- Post/American alone would not pay him, he terminated his contract with Hearst. The carriers' self-estimate: The parties are in agreement that some weight should attach to carriers' own opinions of whether they were employed or self-employed. Since all factors should be given consideration in a determination of this kind, I here set down certain findings in this respect. There is no doubt that the publishers regard the carriers as independent contractors and have not failed to avail themselves of the opportunities to convey this to car- riers.36 Those carrier-witnesses to whom were put the direct question, hesitantly and reluctantly, but invariably, said that they treated themselves as self-employed; for example, they utilized the self-employment sections of income tax returns. On the other hand, it was quite apparent that they were at least in a confused state. Before being pinned down, each would disclaim knowledge of his status. I find that, for whatever the reason, carriers generally regard themselves as independent contractors. Miscellaneous criteria: Carriers do not enjoy certain benefits afforded those re- garded by the publishers as employees, such as sick benefits, vacations,37 pensions, or insurance. The publishers do not carry workmen's compensation or similar compensation on any of the motor carriers. Hearst runs new-subscription contests which carriers are free to enter or not to enter Awarded as prizes are cash and items ranging from soft drinks to kitchen utensils. But carriers are not eligible to enter other Hearst contests, run among those who Hearst considers to be employees; and in these contests, unlike the carriers', regular employee deductions are taken from the prizes awarded. D. Concluding findings as to status of carriers Having given careful consideration to each of the above factors and to the total picture which they develop, I am persuaded, and I find, that the publishers retain the right to direct and control, in substantial measure, the details and means by which the delivery of their newspapers by carriers is effected. The carrier performs the 32 None of these terminations is urged here as violative of the Act 34 It appears that Abell's reason for the action was connected with the status of Scherer's account The matter was not gone into at length since it had been the subject of a prior, dismissed unfair labor practice charge 3+ Scherer, in testifying, attributed the use of the phrase "had not fired me." to the Hearst representatives who spoke to him They did not testify, and there was no con- tradictory testimony. However, considering this in the light of the rest of his testimony, I find that Scherer, in giving the substance of the conversation, was using some words and phrases, such as this, which were his own. 85 The route was, in fact, converted to a "boy" route by both publishers It no longer is serviced by a carrier The conversion is not alleged to be an unfair labor practice 31 One carrier was told, "When everything is going along all right, you are working for yourself ; if there is anything wrong, you are working for the 'Sunpapers." I find that this remark, if made, was jocular s7 They may arrange on their own , to take time off, in which case, as previously noted, they provide their own replacements. A. S. ABELL COMPANY 247 service of final delivery in a geographical area which is determined by the pub- lisher and is not his to sell or transfer, under standards and conditions finally fixed, in each case, by the publisher. Although the method of compensating the carrier is indicative of an independent contractor relationship, the system of cost-and-price determination effectively limits the carrier's control over his earning power. Finally, the almost-at-will terminability of the relationship bears directly upon the right of control which is the essential issue here. On balance, I find that the entrepreneurial aspects of the carrier's work are outweighed by the "outer-control" aspects and that the presumption created by the formal agreement has been rebutted. Each of the precedents cited by Respondents-and by the General Counsel- contains relevant distinctions from the situation here presented. I find most ap- posite the decision of the Board in Lindsay Newspapers, Inc.,38 and, in accordance therewith, I find that the carriers involved here are employees. E. Alleged interference, restraint, or coercion On the afternoon of Tuesday, March 7, 1961, prior to the holding of the first union meeting scheduled for later that day, roadman Jefferson of the Sun, ap- proached John Feeley, a Sun rural carrier, and asked him if he were running for secretary or treasurer of the Union. Asked to explain, he said he was referring to the union meeting to which Feeley was going that night. Feeley said he was not running for anything; that, in fact, he did not know if it was a "union" or an "association" meeting. Jefferson asked where the meeting was to be held, and Feeley told him. Next day, Jefferson asked Feeley if a certain carrier had attended the meeting. Receiving an affirmative answer, he asked who else had been there. Feeley told him he would have to ask someone else. On the next day, Thursday, or on Friday, Feeley telephoned the Abell offices to make a change in his "draw." He spoke to Vance Askew, rural route manager 39 Askew said he heard that Feeley had attended the meeting. Feeley said he had, and Askew asked him if he was "interested in the meeting." Feeley said, in effect, that he wanted to find out what it was all about. On or about Thursday, March 9, 1961, Hook, roadman for Hearst,40 met combi- nation carrier Lawrence Ladd at the latter's "pickup" point. Hook asked Ladd if he had heard anything about the meeting and whether he had seen combination carrier Melvin Scherer there. Ladd said he had not-although he had. Hook said that he and (Sun roadman) Jefferson understood that there had been a meeting and that they were trying to find out about it. Later that day, at Ladd's second pickup, both Hook and Jefferson met him. They indicated an awareness that Ladd had attended the meeting and that he had seen Scherer, and they proceeded to question him as to who else was there. On Monday, March 13, 1961, Herbert Reynolds, Sun circulation manager,41 and Askew met carrier Feeley on the latter's route. Reynolds asked Feeley if he was interested in the Union; Feeley said that he was, that he wanted to find out about it. Reynolds then said that under no circumstances would the Sunpapers negotiate with the Teamsters Union or any other union. One or two days after the second union meeting (held on March 14, 1961), at "pickup" time, Reynolds and Askew met combination carrier Melvin Scherer. Rey- nolds said he wanted it clearly understood-the Sunpapers "would positively not agree to negotiate with the Teamsters Union." Alluding to the Washington Star, "which became union," he said "in order to do that" the carriers would have to be "recognized" as employees; that they would not be recognized by Abell as em- ployees since they were independent contractors. Furthermore, he stated, before there would be any negotiation, the routes would "go to boys," 42 that the News had done this successfully and so could the Sun. Next day, Edward Sechtman, Hearst circulation manager,43 and roadman Hook went to see Scherer at the latter's home. Sechtman went in while Hook remained outside. Sechtman told Scherer that he understood Scherer had attended some union meetings; that he would not ask Scherer how he felt but that he wanted it understood the News-Post would not negotiate with the Teamsters under any cir- 38 130 NLRB 680 39 The parties stipulated and I find, that Askew was a supervisor for Abell. 40 Subsequently assistant county circulation manager for motor routes, a supervisory position 41 Stipulated and here found to be an Abell supervisor 42I find this to mean that the rural carrier system would be eliminated. 43 Stipulated and here found to be a Hearst supervisor. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cumstances; and that the carriers were independent contractors and not employees. On March 21, 1961, the Tuesday after the second union meeting, News-Post motor carrier Elmer Sisk had completed his day's deliveries and was at a gasoline service station when he was approached by Harry Deems, Hearst city home delivery manager.44 Hearst roadman Howard Mann was also present . Deems said he heard that there was going to be another union meeting that night. Sisk agreed. Deems told him-and he said he was telling this to all the carriers-that Hearst would not recognize and negotiate with a union (for the carriers). During the last week in March 1961, roadman Jefferson was riding in an auto- mobile with rural carrier Scherer. In the course of a business discussion, the con- versation turned to unions. Jefferson said "things were pretty much in a turmoil over this union activity" and he did not see what the men seemed to gain by it; and that the Company was prepared to take over the routes with boys if they persisted. Late in March or early in April 1961, Deems and Mann-Deems doing the talk- ing-told motor carrier Sara Osterkamp that they had heard the carriers were trying to organize a union and that, since the carriers were "independent dealers," the Union would not be recognized. On a date uncertain, but subsequent to March 31, 1961, Abell roadman Shindell was in a nearby automobile while rural carrier Feeley was picking up his papers. Feeley walked over to the car and got in. He asked if things had quieted down at the Sun office. He was told, no, they were still in an uproar. Feeley (referring to the termination of two carriers on March 31) asked Shindell if he thought any other carriers would be fired. Shindell answered that as long as things quieted down and there were no other meetings, he did not believe anyone else would be bothered. In mid-April 1961, Askew was giving some baseball schedules to Feeley. They began to talk about Melvin Scherer (no longer a carrier). Askew said he could not understand Scherer's having been interested in the Union, since, if the Union did get in, all carriers would be required to take a physical examination and Scherer- alluding to a blood pressure ailment-would undoubtedly not be able to pass it. On a date unspecified, but during the period when Local 355's organizational activity was at its height, Reynolds and Askew (both of Abell) met combination carrier Ladd while the latter was serving papers. Reynolds said they understood the carriers were trying to form a union and that under no circumstances would the publishers recognize or negotiate with the Teamsters. Later in the day, Sun roadman Jefferson asked Ladd if he understood what was meant by the fact that the publishers would not recognize the Teamsters. Told "Not exactly," Jefferson said that the Company (Abell) was prepared to replace the carriers with boys if they insisted on having a union. On the next or the second following day, Ladd met Sechtman (Hearst), who told him that the News-Post would not recognize the Teamsters. He asked if Ladd had signed a card; Ladd said he had . Sechtman asked him whv, and Ladd said all the carriers seemed to feel it was a good idea. Sechtman asked if Ladd thought he could get out of it, to which Ladd replied that he did not know. Also on an unspecified date, but while the organizational activity was going on, Askew was having lunch with combination carrier Phillip Lee. He asked what the carriers had in mind, what they desired, and what they were trying to get. On two occasions, Reynolds went to see Lee. On these occasions, he told Lee "what a bad thing the union was" and how much better off the carriers presently were. On another occasion, Mr. Sydner of the News-Post 45 told Lee that, as it was, the motor carriers "had it too good " Subsequent to the Local 355 activity, the publishers increased the carriers' mileage allowance from 81/2 to 91/2 cents.46 The testimony concerning the findings above is virtually uncontradicted. None of those named as speaking for the publishers testified, except for Reynolds and Secht- man. These two, in effect, testified to the existence, at all times relevant herein, of a policy and program of each publisher which is consistent with the actions described above. Reynolds testified that, motivated by inquiries from 10 or 15 carriers who had heard that if they did not sign up with the Teamsters they would lose their routes if and when the Teamsters acquired bargaining rights, he instituted a program of making it clear to rural carriers that, although they were free to join a union, Abell would not recognize or sign a contract with a union because it considered them to be independent contractors; and that, if Abell were forced to recognize the carriers as " Stipulated and here found to be a Hearst supervisor '6 The parties stipulated, and I find, that Sydner now deceased, was assistant county circulation manager for motor routes and a supervisor at the time 46 This is not alleged to be an unfair labor practice A. S. ABELL COMPANY 249 employees, the system might become so financially burdensome that Abell would most probably have to look for another avenue of getting the papers delivered or abandon the function. Sechtman testified that, having heard of an organizational attempt, he felt it his responsibility to insure that the motor carriers know the Hearst position: that they considered the carriers to be independent contractors and not employees; that as independent contractors they could not join "the type" of organiza- tion they were talking about; and that, for this reason, Hearst would not recognize a union of motor carriers. F. Concluding findings as to interference, restraint, and coercion I find that the actions of each of the publishers 47 as found above, constitute (1) interrogation of employees as to their membership in, adherence to, and activities on behalf of Local 355; (2) threatening them with loss of employment if they became or remained members of Local 355 or selected Local 355 as their bargaining repre- sentative; and (3) threatening them with a refusal to recognize or to bargain with Local 355 if a majority of them selected Local 355 as their bargaining agent, all of which interfered with, restrained, or coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act. In so finding, I do not include as interference, restraint, or coercion, (1) any state- ments to carriers to the effect that the respective publishers did consider them to be independent contractors or did not consider them to be employees, (2) any statements in praise of the carriers' present working conditions or questioning that the carriers had anything to gain by belonging to a union, and (3) the increase in the mileage rate from 8i/2 to 91/2 cents. In addition, I do not find interference, restraint, or coer- cion on the part of either publisher arising out of conduct or actions of supervisors or roadmen of the other publisher. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and sub- stantial 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 Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and to take certain affirmative action in order to effectuate the policies of the Act. Because of the narrow scope of the unfair labor practices as found herein, I shall recommend a narrow cease and desist order. On the other hand, because it appears from the record that carriers rarely, if ever, visit the plant, I shall make special provision for the individual publication of any notice posted. Upon the basis of the foregoing factual findings and conclusions, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. A. S. Abell Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hearst Consolidated Publications, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Local 355, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , is a labor organization within the meaning of Section 2(5) of the Act. 4. The rural carriers of A. S. Abell Company and the motor carriers of Hearst Consolidated Publications, Inc., are employees within the meaning of Section 2(3) of the Act 5. By interrogating employees as to their membership in, adherence to, and ac- tivities on behalf of Local 355, by threatening them with loss of employment if they became or remained members of Local 355 or selected Local 355 as their bargaining representative, and by threatening them with a refusal to bargain with Local 355 if a majority of them selected Local 355 as their bargaining agent, A. S. Abell Company "In this respect, I hold the publishers liable not only for the actions of their super- visors but also for those of their roadmen, who acted as agents in communic'iting com- pany policy on delivery of and collection for newspapers and who, within the apparent scope of their authority, engaged in a course of conduct paralleling that of the admitted supervisors In the absence of a contention that roadmen are supervisors, I make no finding as to their supervisory status. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Hearst Consolidated Publications , Inc., each interfered with, restrained, and coerced employees in the exercise of their rights guaranteed them in Section 7, thereby violating Section 8(a)( I) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , I recom- mend that A. S. Abell Company, its officers, agents , successors , and assigns, and Hearst Consolidated Publications , Inc., its officers, agents, successors , and assigns, shall each: 1. Cease and desist from: (a) Unlawfully interrogating rural carriers and motor carriers respectively, its employees, as to their membership in, adherence to, and activities on behalf of any union. (b) Unlawfully threatening them with loss of employment if they become or remain members of any union or select any union as their bargaining representative. (c) Unlawfully threatening them with a refusal to bargain with any union selected as bargaining agent by a majority of them. (d) In any like or related manner interfering with, restraining , or coercing them in the exercise of their right to self-organization , to form labor organizations , to join or assist any labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities , except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant at Baltimore , Maryland, copies of the notice attached hereto marked "Appendix A" or "Appendix B," respectively 48 Copies of such notice, to be furnished by the Regional Director for the Fifth Region, shall , after being duly signed by an authorized representative of the respective Respondents , be posted imme- diately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered , defaced, or covered by any other material. (b) Within 10 days after the posting of such notice , send a copy thereof to each of its rural carriers or motor carriers , respectively . The transmittal thereof shall be by the method customarily used to transmit written messages to such carriers. (c) Notify the Regional Diector for the Fifth Region, in writing, within 20 days from the date of receipt of this Intermediate Report, what steps Respondents have taken to comply therewith 49 48 If these recommendations are adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the event that the Board's Order is enforded by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "Pursuant to a Decree of the United States Couit of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order " 48 If these recommendations are adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner 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 ask our rural carriers, who are among our employees, about their interest in or activities on behalf of Local 355, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten them with loss of employment if they should join ,any labor organization or select a labor organization as their bargaining representative. ROY E. HANSON, JR., MFG. 251 WE WILL NOT threaten them with a refusal to bargain with any labor organization selected by a majority of them. WE WILL NOT in any like or related manner interfere with , restrain, or coerce them in the exercise of their right to organize, to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by themselves , to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union-security requirement). A. S. ABELL COMPANY, Employer. Dated------------------- By------------------------------------------- (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. Employees may communicate directly with the Board 's Regional Office, 707 N. Calvert Street, sixth floor, Baltimore 2, Maryland, Telephone Number, Plaza 2-8464, Extension 2100, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Rela- tion Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT ask our motor carriers, who are among our employees, about their interest in or activities on behalf of Local 355 , International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten them with loss of employment if they should join any labor organization or select a labor organization as their bargaining representative. WE WILL NOT threaten them with a refusal to bargain with any labor organization selected by a majority of them. WE WILL NOT in any like or related manner interfere with, restrain, or coerce them in the exercise of their right to organize , to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by themselves, to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union -security requirement). HEARST CONSOLIDATED PUBLICATIONS, INC., Employer. Dated------------------- By------------------------------------------- (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. Employees may communicate directly with the Board's Regional Office, 707 N. Calvert Street, 6th floor, Baltimore 2, Maryland , Telephone Number, Plaza 2-8464, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Roy E. Hanson, Jr., Mfg. and Elias Mancillas and United Steel- workers of. America, AFL-CIO. Cases Nos. f1-CA-4518-1 and 921-CA-4518-.. May 24, 1962 DECISION AND ORDER On March 23, 1962, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding 137 NLRB No. 38.