The Pulitzer Publishing Co.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Pulitzer Publishing Company and St. Louis Newspaper Carriers' Union No. 450, affiliated with International Printing Pressmen and Assistants' Union of North America, AFL-CIO, Petitioner. Case No. 14-RC-4539. March 9, 1964 DECISION ON REVIEW On May 28, 1963, the Regional Director for the Fourteenth Region issued the attached Decision and Order in the above-entitled proceed- ing, dismissing the petition filed herein on the ground that the news- paper carriers sought to be represented by the Petitioner are inde- pendent contractors. Thereafter, the Petitioner, in accordance with Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, filed with the Board a timely request for review contend- ing that the newspaper carriers are employees within the meaning of the Act. The Board by telegraphic order dated June 25,1963, granted the request for review. Briefs on review were filed by the Employer and the Petitioner. The Board has considered the entire record in this case, together with the parties' briefs, and is of the opinion that the facts clearly support the Regional Director's determination that the newspaper carriers involved herein are independent contractors.' Accordingly, we hereby affirm his Decision and Order. 1 Cf. Lindsay Newspapers, Inc., 130 NLRB 680, affd . 315 F. 2d 709 (C.A. 5). REGIONAL DIRECTOR'S DECISION AND ORDER Upon a petition duly filed , a hearing was held before Hearing Officer Eugene L. Rosenfeld of the National Labor Relations Board . His rulings made at the hearing are free from prejudicial error and are affirmed.' 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 Regional Director Salvatore Cosentino. Upon the entire record the Regional Director finds: 1. The Pulitzer Publishing Company 2 (herein called Publisher ) is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organization named above claims to represent certain employees of The Pulitzer Publishing Company.3 ' Petitioner excepted at several points throughout the hearing to a ruling excluding all evidence concerning conversations with one Fred Eck, now deceased , where Eck and the witness were the only ones present. The Petitioner, although afforded an opportunity to do so, failed to make any offer of proof for the record . In reviewing the entire record, it appears that Petitioner had an opportunity to elicit like testimony from several witnesses concerning similar events which took place in conversations held with one Charles Mundy, who now holds the same position which Eck held immediately prior to his death. 2 The name of the publisher appears as corrected at the hearing. $ The Publisher refused to stipulate that Petitioner was a labor organization within the meaning of the Act on the grounds that all of its members were independent contractors. In view of the findings made herein, it is unnecessary to reach any conclusions as to the status of Petitioner as a labor organization. 146 NLRB No. 33. THE' PULITZER PUBLISHING COMPANY 303 3. A question concerning commerce does not exist concerning the representation of certain employees of the Publisher within the meaning of Section `9 (c) (1) 'and Section 2(6) and (7) of the Act. The Publisher contends that all individuals who would be included in the unit description are independent contractors within the meaning of Section 2(3) of the Act. The record reveals that on July 13, 1945, the Board in Case No. 14-R-890 certified this same petitioner as the collective-bargaining agent for paper carriers for several St. Louis newspaper publishers , among them The Pulitzer Publishing Company. In The Pulitzer Publishing Company, et al., 62 NLRB 229, the Board in ordering an election among the newspaper carries discussed the several factors which led it to conclude that the carriers were employees rather than independent contractors. The record in the instant case reveals that there have' been several changes since the Board decision in 62 NLRB 229. At the time of the original Board decision , the sale of a newspaper route was evidenced by a written contract executed in triplicate with copies for both parties and for the Publisher . That contract contained the following paragraph: I further understand that the Post -Dispatch has established certain policies which guide it in its relationship to carriers, which are printed on the reverse side hereof, and that such policies are subject to change by said Post -Dispatch. The reverse side of the contract contained 14 conditions of employment. The carrier agreed that any helpers he might employ had to meet with the approval of the Post-Dispatch ; that the Post-Dispatch reserved the right to designate the edition to be delivered on each route ; that the Post-Dispatch will designate what other papers, if any, a carrier will be allowed to deliver ; the Post-Dispatch set the price for which a carrier had to sell its newspaper ; the carriers were not allowed to refuse delivery to subscribers except for a reason such as a poor credit rating ; the carriers were allowed to deliver back copies of newspapers . The Post-Dispatch on several occasions compelled carriers to disposed of their routes for various reasons. The Post-Dispatch instructed new carriers on the time and method of delivery and the wrapping of papers . The carriers could not make any charge for any special delivery service rendered to a subscriber , nor could they give subscribers any discount , rebate, or cutback. The Publisher had collective-bargaining agreements with the Petitioner from the time of the Board's certification in 1945 until May_ 26, 1961 , when their last agreement expired . In 1961 the Publisher announced that it would no longer enter into collective-bargaining agreements with the Petitioner, as under the National Labor Relations Act, as amended, it had no duty to do so-since the carriers were all independent contractors. The record reveals that since 1945 there ' has been a substantial change in the relationship between the carriers and the Publisher and that these changes tend to establish the status of the carriers as independent contractors within the meaning of Section 2 (3) of the Act. The Publisher has established approximately 190 newspaper routes in the city and county of St. Louis. Carriers are required to,operate within the boundaries of these routes and are not allowed to sell or deliver newspapers on street corners or to any place outside of these routes . Whenever a carrier desires to sell a route, the Publisher insists on an interview with the purchaser, and these interviews have always taken place at the Publisher's offices. At this interview the Publisher deter- mines the purchaser's credit rating, his experience in newspaper delivery, and his knowledge of the boundaries of the route, and attempts to form an opinion as to the type of businessman the purchaser will make . Based on the information gathered at this interview, the Publisher decides whether it will enter into a relationship with the purchaser. A transfer agreement is signed by the selling carrier and filed in the Publisher's offices, but the parties do not retain a copy of this agreement. The agreement contains no conditions except that the seller agrees to furnish the purchaser with a list of his customers. The Publisher does require that the carriers deliver the newspaper each day that it is published and it alone controls the number of days that the newspaper is published and the size of each newspaper. The Publisher unilaterally fixes the wholesale price at which the newspaper is sold to the carriers . The Publisher furnishes to the carriers various forms for the carriers' use in their daily operations such as stop and start orders , wax wrapping paper, billing forms, and insurance 744-870-65--vol. 146-21 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards. The record reveals that the carrier is not required to use any of these: materials furnished by the Publisher. The Publisher currently pays travel allow- ances to 7 men and hardship allowances to 10 men. The travel allowances are not calculated on a per mile formula, but rather are wholly within the discretion of the Publisher and are based upon the average number of miles traveled by the carrier and the density of population within the route. The Publisher pays a hardship allowance to carriers if it deems that a route can no longer be profitably operated due to extensive destruction of real estate or the changed character of neighborhoods within a route. The Publisher extends credit to the carriers and is the sole arbitrator of the amount of credit to be extended before it will terminate its relationship with the carrier. The Publisher conducts campaigns at least twice yearly to solicit new subscribers and relays the names of the new subscribers to the carrier on a start order form. The Publisher makes available to all subscription readers an accident insurance program at the recommended price of 50 each Satur- day. The carriers collect these sums and are billed once each month for the- premiums. The record reveals that some carriers charge a flat rate of 25 cents per month, which rate is in excess of the Publisher's announced price. There is no indication that a carrier is required to participate in the insurance program. On the other hand, carriers may refuse to make deliveries to a potential sub- scriber for any reason. The record discloses carriers occasionally refuse either because they feel the subscriber may be a poor credit risk or because the carrier finds. it economically unfeasible to deliver to that subscriber. Carriers deliver the news- paper with, their own equipment, which they must maintain at their own expense. The carriers may hire any help they choose without the approval, consent, or knowledge of the Publisher. The carrier determines the number of newspapers he will, receive each day by calling the Publisher and either decreasing or increas- ing, his draw. - The carrier alone determines which edition of the Post-Dispatch he will deliver each day. The carrier maintains his own customer lists, which the Publisher never asks for or has a right to see. The carrier does all his own billing and keeps records which are entirely within his possession and are never shown to the Publisher. The carriers frequently charge monthly rates to subscribers in excess of the Pub- lisher's recommended retail subscription rate. Carriers bill customers at intervals. ranging from 2 months to 1 year and are not required to deposit any advance payments with the Publisher or to a special account. All revenues collected by the carrier remain in his possession . Carriers conduct their own solicitation cam- paigns in addition to solicitations carried on by the Publisher. No carrier is, required to participate in any solicitation campaign or any promotional campaign and, indeed, several carriers have refused to participate without being subjected to• any retaliatory action. Once yearly the Publisher asks 'those 14 carriers whose routes lie partially within the city and partially within the county to supply it with the number of newspapers, that the carrier delivered within the city on a given day. This request is to conform with a rule of the Audit Bureau of Circulation, a voluntary organization of which the Publisher is a member. The Publisher does not accept any "returns" although it will replace any papers torn or damaged in shipment. The carrier may deliver any other publication or advertising material at the, same time he delivers the Post-Dispatch. The Publisher does demand that no foreign material be inserted in or wrapped around the Post- Dispatch. The only time a carrier may be asked to come to the Publisher's office is on the occasion of the transfer of a newspaper route or to discuss an overdue newspaper bill owing to the Publisher. The Publisher does not carry on its payroll as an employee any carrier , nor does. it charge against the carrier any Federal or State withholding tax. The record reveals that the Publisher employs a "carrier contact man," who serves essentially as a liaison between the carriers and the Publisher. This in- dividual in no way exercises any supervisory functions over the carriers. The carrier's income is determined by the difference between the wholesale rate he is charged by the Publisher and-the prices for which he sells his newspapers to his customers. The carrier's total income may fluctuate depending upon the total number of subscribers on a given day. The carrier may refuse to deliver back editions of the Post-Dispatch. The carriers determine at what place they will pick up their daily draw of newspapers. Carriers have been requested by the THE YOUNGSTOWN CARTAGE COMPANY 305 Publisher to deliver the Sunday newspaper in only one section, but several car- riers have continued a past practice of delivering the Sunday paper in separate sections without any action being taken by the Publisher. The carrier can terminate his relationship with the Publisher with no notice, and the record indicates that the Publisher has a policy of giving 30 days' notice before terminating a relationship. In Lindsay Newspapers, Inc., 130 NLRB 680, the Board restated its "right to control" test for determining the status of an individual as an employee or an independent contractor: Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment; while, on the other hand, where control is reserved only as to the result sought, the relationship is that of an independent contractor. The Board has used this test many times in determining the status of newspaper carriers. See A. S. Abell Company, 137 NLRB 238; Lindsay Newspapers, Inc., supra; and The Kansas City Star Company, 76 NLRB 384. The Board in deter- mining the status of the newspaper carriers in these cases has weighed each factor present in the cases against its right-to-control test. All the factors involved in those cases are present in the instant case. In those cases in which the Board found the carriers to be employees, they also found a considerable degree of discre- tion and control over the actual operation of the distribution procedure retained by the publisher. Here, the Publisher's only retention of control is in the area of the initial establishment of the relationship between itself and the carrier and in the determination of the contents of its delivered newspaper, and the frequency of its delivery. The method of delivery is established by the carrier, and all matters incident thereto with which the Publisher comes in contact are immediately relayed to the carrier without comment or recommendation. As the Petitioner seeks to represent only individuals who I find are independent contractors within the meaning of Section 2(3) of the Act, the petition must be dismissed. [The Regional Director dismissed the petition.] The Youngstown Cartage Company and Howard Smith and Peter Dohollow and Michael Boano and Eugene Theodore Local 377, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Howard Smith and Peter Dohollow. Cases Nos. 8-CA-2693P2, 8-CA-93837, 8-CA- 2979-1, 8-CA-2979-2, 8-CA-3092, 8-CB-582, and 8-CB-628. March 10, 1964 DECISION AND ORDER On October 8,1963, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that Respondent Youngstown had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent Youngstown and Respondent Local 377 had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal 146 NLRB No. 34.