The News-Journal Co.

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The News-Journal Company and Newspaper Guild of Greater Philadelphia, Local 10, AFL-CIO. Case 4-CA-5212 August 27, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS Upon a charge filed by Newspaper Guild of Greater Philadelphia, Local 10, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 4, issued a complaint and notice of hearing dated April 24, 1970, against The News-Journal Company, herein called Respondent, alleging that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing were duly served upon Respondent and the Union. The complaint alleges in substance that on February 26, 1970, the Union was duly certified in Case 4- RC-8171 (not published in NLRB volumes) as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate by the Board in its Decision and Direction of Election dated January 21, 1970 (180 NLRB No. 137), and that since on or about March 10, 1970, Respondent has refused, and is refusing, to recognize and bargain with the Union as such exclusive bargaining represent- ative, although the Union has requested it to do so. On May 13, 1970, Respondent filed its answer, admitting that it had been served with the charge herein; its volume of business meets the Board's juris- dictional standards; it engages in commerce within the meaning of the Act; the Union is a labor organiza- tion within the meaning of the Act; the Union was chosen by a majority of the employees in the unit found appropriate to be their exclusive collective- bargaining representative; the Union was certified by the Board thereafter; and Respondent has refused to bargain with the Union. Respondent denied, howev- er, the remaining parts of the complaint which alleged that the Union was the representative of an appropriate unit of Respondent's newspaper deliverers and that the Union has requested, and is requesting, Respond- ent to bargain with the Union; Respondent contends in its answer that the newspaper deliverers who com- prise the appropriate unit are independent contractors, not employees within the meaning of the Act, and thus not entitled to representation. On May 28, 1970, the General Counsel filed with the Board a Motion for Summary Judgment. On June 2, 1970, the Board issued an order transfer- ring the proceeding to the Board and requesting Respondent to show cause why the General Counsel's Motion for Summary Judgment should not be granted. On June 10, 1970, Respondent filed a Cross-Motion for Summary Judgment requesting the Board to dis- miss the complaint and set aside the election and certification.' 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. Upon the entire record in this case, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT The record before us establishes that on February 27, 1969, the Union filed a petition in Case 4-RC- 8171, seeking to represent all newspaper deliverers at Respondent's Wilmington, Delaware, location. After a hearing, the Regional Director for Region 4 transferred the case to the Board for decision. In its Decision and Direction of Election dated Janu- ary 21, 1970, the Board found appropriate for collec- tive bargaining the following unit of employees: All newspaper deliverers employed in the circula- tion department of the Employer's [Respondent] Wilmington, Delaware, newspaper business, excluding all other employees, and all supervisors as defined in the Act. (180 NLRB No. 137) On February 17, 1970, pursuant to the Decision and Direction of Election, an election was held in which a majority of the employees of Respondent in the unit described above designated and selected the Union as their representative for the purposes of collective bargaining with Respondent. There were no challenged ballots or objections to the conduct of the election, and, on February 26, 1970, the Region- al Director for Region 4 issued his Certification of Representative. Respondent thereafter admittedly refused to bargain with the Union upon the latter's request, and the instant refusal-to-bargain charge was filed on April 10, 1970. In its statement in opposition to the General Coun- sel's motion, and in support of its motion, Respondent contends that the Union's certification in the underly- Respondent's request for oral argument before the Board is hereby denied as the record and briefs adequately present the issues and the positions of the parties 185 NLRB No. 40 THE NEWS-JOURNAL COMPANY ing representation proceeding is invalid because the newspaper deliverers represented by the Union are independent contractors, not employees within the meaning of the Act, and, thus, not entitled to represen- tation. It appears, however, that Respondent is attempting to do no more than relitigate in the instant proceeding issues which were previously decided by the Board in the underlying representation case. It is well established that, in the absence of newly discov- ered or previously unavailable evidence, an employer is not entitled to relitigate in an 8(a)(5) proceeding issues which were, or could have been, raised in the underlying representation proceeding. According- ly, as no such evidence bearing on the status of the newspaper deliverers has been presented, we find without merit Respondent's claim that the election conducted in the representation proceeding is invalid because the unit was not comprised of "employees" within the meaning of the Act.2 In its answer, Respondent contends that a recent Ninth Circuit Court of Appeals decision, Carnation Co. v. N.L.R.B., 429 F.2d 1130 (C.A. 9), in which the court denied enforcement of our order that, inter alia, invalidated certain individual agreements entered into between Carnation and its wholesale and retail dairy product deliverers because the deliverers were then represented by a union and covered by a valid collective-bargaining agreement, requires reversal of our unit determination herein. In Carnation, we found that because the deliverers were employees, not inde- pendent contractors, and entitled to representation by the union involved therein, Carnation could not lawfully negotiate separate contracts with them. The court disagreed with this finding and concluded that since the deliverers were independent contractors, Carnation did not violate the Act by dealing with them individually. In the underlying representation proceeding herein we found that the newspaper deliverers were employ- ees, not independent contractors, within the meaning of the Act because, inter alia, the services rendered consisted of the routine manual work of loading and driving trucks over predetermined routes and dropping off bundles of newspapers in a prearranged order at designated drop spots; the drop spots are changed without prior consultation with the deliverers; the deliverers are closely supervised to insure proper and timely delivery of the newspaper; and the opportunity ' The only new evidence which Respondent offered to present to the Board involved the fact that several of the deliverers threatened to sue Respondent to enforce their individual contractor status We are of the opinion that this factor, when weighted against the other factors which support a finding that the newspaper deliverers are not independent contractors, is not sufficient to warrant reversal of our prior unit determination 159 to realize any meaningful additional profit by cutting costs or changing methods of operation appears to be limited. The deliverers employed by Carnation, however, set their own hours of work and sequence of deliveries and, most importantly , can increase their profit by enlarging the difference between their costs, including the cost for Carnation dairy products, and the price they charge their wholesale or retail custom- ers. While we do not necessarily agree with the court's decision in Carnation, we find that it does not warrant reversal of our unit determination herein because Respondent clearly retains much greater control of the manner and means of accomplishing the result (newspaper delivery) than did Carnation, whose dis- tributors were free to vary their methods of operation or raise the price in order to increase profitability. All material issues having been either decided by the Board, admitted in the answer to the complaint, or established by the uncontested documents attached to the General Counsel's Motion for Summary Judg- ment, there are no factual issues requiring a hearing before a Trial Examiner. Accordingly, the General Counsel's Motion for Summary Judgment is granted and Respondent's Cross-Motion for Summary Judg- ment is denied. On the basis of the record before it, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, The News-Journal Company, is engaged at Wilmington, Delaware, in the business of publishing and distributing newspapers in and around Wilmington, Delaware. During the past year, Respondent had a dollar volume of sales from its Wilmington facilities directly to customers, outside the State of Delaware in excess of $50,000 and, pur- chased materials from outside the State of Delaware valued in excess of $50,000. Respondent admits, and we find, that Respondent is, and at all material times herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Newspaper Guild of Greater Philadelphia, Local 10, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit At all times material herein, the following employees have constituted and now constitute a unit appropriate for purposes of collective bargaining within the mean- ing of the Act: All newspaper deliverers employed in the circula- tion department of the Employer's Wilmington, Delaware, newspaper business, excluding all other employees, and all supervisors as defined in the Act. 2. The certification On February 17, 1970, a majority of the employees in said unit, voting in a secret-ballot election conducted under the supervision of the Regional Director for Region 4 of the National Labor Relations Board, designated the Union as their representative for the purposes of collective bargaining with Respondent, and on February 26, 1970, the Regional Director for Region 4 certified the Union as the exclusive collective-bargaining representative of all the employ- ees in said unit, and the Union continues to be such representative. B. The Request To Bargain and Respondent 's Refusal On or about March 10, 1970, the Union requested and continues to request that Respondent bargain collectively with it as the exclusive collective-bargain- ing representative of all the employees in the above- described unit. Commencing on or about March 10, 1970, Respondent refused, and continues to refuse, to bargain collectively with the Union as exclusive bargaining representative of the employees in said unit. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of Respondent in the appropriate unit described above; that the Union at all times since February 26, 1970, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit , within the meaning of Section 9(a) of the Act; and that Respondent has since March 10, 1970, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit. By such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of Respondent set forth in section III, above, occurring in connection with the operations as 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 unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom , and, upon request , bargain collectively with the Union as the exclusive representa- tive of all employees in the appropriate unit and, if an understanding is reached , embody such under- standing in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their elected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See: Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd . 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). CONCLUSIONS OF LAW 1. Respondent is, and has been at all material times herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Newspaper Guild of Greater Philadelphia, Local 10, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All newspaper deliverers employed in the circula- tion department of Respondent's Wilmington, Dela- ware, newspaper business, excluding all other employ- ees, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since February 26, 1970, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. THE NEWS-JOURNAL COMPANY 161 5. By refusing on or about March 10, 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing,its employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 4, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (c) Notify said Regional Director for Region 4, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, The News-Journal Company, Wilmington, Delaware, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Newspaper Guild of Greater Philadelphia, Local 10, AFL-CIO, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All newspaper deliverers employed in the circulation department of its Wilmington. Delaware, newspaper business, excluding all other employees, and all supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Wilmington, Delaware, place of business copies of the attached notice marked APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Newspaper Guild of Greater Philadelphia, Local 10, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union as the exclusive representa- tive of all of our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All newspaper deliverers employed in the circulation department of our Wilmington, Delaware, newspaper business, excluding all other employees, and all supervisors as defined in the Act. THE NEWS-JOURNAL COMPANY (Employer) 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By Any questions concerning this notice or compliance (Representative) with its provisions may be directed to the Board's (Title) Office, 1700 Bankers Securities Building, Walnut & This is an official notice and must not be defaced Juniper Streets, Philadelphia, Pennsylvania 19107, Tel- by anyone, ephone 215-597-7601. This Notice must remain posted 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.