The Beacon Journal Publishing Co.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Beacon Journal Publishing Company and Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local Union No. 473, Petitioner. Case 8-RC-7816 January 29, 1971 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a petition duly filed under Section 9(e) of the National Labor Relations Act, as amended, a hearing was held on various dates from May 11, 1970, through June 9, 1970, before Hearing Officer Paul Weingar- ten. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Di- rector for Region 8, this case was transferred to the National Labor Relations Board for decision. There- after, the Employer and Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act,,as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Beacon Journal Publishing Company is an Ohio corporation with its principal office and place of business in Akron, Ohio. It is engaged in the business of publishing and distributing a newspaper known as the Akron Beacon Journal. The Employer holds membership in or subscribes to various interstate news services, publishes various syndicated features, advertises various nationally sold products, and de- rives an annual gross revenue from its publishing op- erations of more than $200,000. As the record shows, and the parties have stipulated, that the Employer is engaged in commerce within the meaning of the Act, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. 2. The labor organization involved claims to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of motor routemen, who are engaged principally in the delivery of the i The Employer apparently used the term motor routemen and agents interchangeably. The record is not entirely clear as to whether there is a Employer's daily or Sunday newspapers. A motor routeman may deliver newspapers, in so-called tubes directly to subscribers, or in bundles to carriers, news- stands, or store dealers, or may place them in his vending racks. The Employer contends that the peti- tion should be dismissed because the motor routemen are independent contractors 2 and not employees within the meaning of Section 2(3) of the Act. The Beacon Journal Publishing Company pub- lishes and distributes daily and Sunday editions of a newspaper known as the Akron Beacon Journal, herein called the Journal. Its operations are under the general control of a vice president and general manag- er. The distribution and sales function is lodged in the circulation department manager, who has under him area supervisors who in turn have under them the district managers. Although these district managers have direct contact with motor routemen, they are not supervisors' The Journal is distributed from Akron into the met- ropolitan, suburban, and rural areas. The papers are taken off the press and put on the docks by mailroom employees who bundle and wrap them. The drivers pick the bundles up at the dock and deliver them to the various street comers in the city of Akron,4 where carrier boys pick them up and deliver the paper to the subscriber. These same drivers also pick up at the dock and deliver bundles of papers to designated points in metropolitan Akron and suburban and rural areas outside Akron, from which point the motor routemen (some of whom are women) take over the distribution. The motor routemen do not have a written contract with the employer.' They were no distinctive uniform; they are required to be bonded;6 the Employer selects the bonding company, makes arrangements for the bonding, and each routeman is required to pay for his own bond. Each motor routeman agrees to purchase at a stipulated price a given number of newspapers substantial difference between them . Both classifications work out of outly- ing areas. Motor routemen ordinarily deliver single subscribers ' papers in Waal areas but also deliver some papers in bulk to tamers and dealers. Agents apparently deliver principally to carvers but also to newsstand deal- ers. Some agents also have single subscribers' deliveries. The exact number of individuals in the proposed unit is uncertain, varying from Employer's estimate of 38 to Petitioner's estimate of 44. Some 10 individuals have been identified as agents on the basis of their work and of these the parties have agreed to exclude those working at City News and Gail Marks from the appropriate unit. The Employer would include the remaining agents , but the Petitioner would exclude four. 2 "Sec 2 When used in this Act ... (3) The term 'employee' shall not include .. any individual having the status of an independent contractor 3 The record shows that district managers are included in a unit repre- sented at present by the Petitioner. 4 These drivers use trucks owned by the Employer . They are employees and are represented by the Petitioner in a separate unit; they are not involved in this proceeding. 3 The evidence shows that a number of them hold other full-time jobs. 6 In addition to the bond, they are required to post cash with the Employer in an amount of I week's billing for newspapers. 188 NLRB No. 23 BEACON JOURNAL PUBLISHING CO. which he sells at a price established by the Employer. The Employer establishes and changes the districts within which the routemen must operate, and, if a motor routeman is unable to serve the district proper- ly, the Employer will either replace him or divide up the district. The routeman must service customers in his district and he has no discretion to determine whether he will sell to customers, even when they are in arrears, except as authorized by the Employer. In aid of routemen, the circulation department of the Employer sends a crew to solicit new customers. Both the routemen and the Employer take orders to stop and start delivery requests, and, in the latter case, the Employer informs the routemen of such matters. Sub- scription drives are conducted and directed by the Employer and routemen with carrier boys compete for prizes. Free samples are also given to routemen for distribution to interest new readership, the distrib- ution being under the direction of the distnct manag- ers. Routemen receive no additional compensation for this work. When there is an opening for a motor routeman, it is the responsibility of the district manager to fill it. He may do so by placing an ad under the "Employ- ment Help Wanted" section of a newspaper where the opening occured or in the Journal, or the manager may have the departing motor routeman suggest someone to take over the route, or he may refer to an "application" on file with the Employer. When a new man is put to work, the district manager reports the fact to the circulation department on a "Route Change" report.' The district manager gives the new motor routeman a current list containing the names and address of each subscriber a The route list given the new man designates by number the order in which delivery of the Journal is to be made. The order of delivery can be varied but must not be out of place by more than 10 to 15 minutes from the sequence of time at which it ordinarily would be delivered. The route- man is required to deliver the Sunday paper and its supplement but can deliver the Sunday supplement only on Sunday. The new man is instructed on the Employer's policy of "sampling" customers and di- rected to collect from the customers in advance of delivery. The Employer furnishes printed forms for 7 Insofar as relevant herein, this document contains such information as date of the report, the effective date of the route change, the route or the routeman's number, his name, address, telephone number, and the name, address, and phone number of the motor routeman 's substitute . It also indic- ates the amount of the cash bond deposited ; the place at which the daily, Saturday, and Sunday papers are dropped; the cost and number of papers to be delivered to the routeman ; a notation that a "Carrier Bond Account" form is to be filled out , and the district manager's name and the district s This indicates that the Employer,despite its contention, has a current list of subscribers. The Employer also requires an annual report from each motor routeman for an up-to-date list of customers with their addresses for it to submit to the audit bureau of circulation report , a report newspapers carrying advertising must make so their claimed circulation can be verified. 219 use by motor routemen in billing their tube, dealer, and carrier customers. The motor routeman picks up the bundles at the spot where the Employer's drivers dropped them be- tween 11:30 a.m. and 1 p.m. and makes his deliveries by various means, such as private carrier, station wag- on, pickup truck, or other vehicle. The vehicle is owned and maintained by the motor routeman and it carries no marking identifying it with the Beacon Journal. The routemen are free to set their own hours of work but the papers must be delivered to the cus- tomer not later than 5 p.m. This deadline is insisted upon, as admitted by the Employer, even if the sub- scriber has not complained of late delivery, and a routeman's inability to meet the delivery time has resulted in part of a route being taken away from him. Circulation Department Manager Robert Kelly stat- ed that close supervision is necessary to insure proper and timely delivery of the paper to the customer. The district manager daily drives the routes to determine if the motor routeman has picked up the bundles at the dropoff point. A motor routeman is required to telephone the Beacon Journal if he has a breakdown or experiences some other problem which will make delivery late. If late deliveries recur, the district man- ager will discuss the problem with the motor route- man and take corrective action if necessary. The Employer concedes that it retains the right to replace a routeman at any time. The motor routeman is required to report to the district manager what action he has taken with regard to customer complaints. The district manager discuss- es such complaints with the routeman, and then checks whether the latter has remedied it and, if not will ask the routeman for an explanation. The disposi- tion of a complaint is determined by Beacon Journal's policy, not by the motor routemen. The district man- ager will deliver the papers free of charge for the routeman when the latter is unable to deliver. The Employer establishes the price at which its publication is sold to the motor routeman 9 and the price at which the newspaper should be sold to the public. The wholesale rate at which motor routemen sell to carriers and shopkeepers appears to be general- ly uniform. The routeman's total compensation con- sists of the difference between the price he pays the Employer, and the price at which he sells the paper to his customers, less operating costs. There is another factor affecting the income of motor routemen and this is the Employer's payment of subsidies. The na- ture of the subsidies is unclear as is the basis on which they are computed.10 While the amount of the subsidy, 9 The rate may vary from $.0434 to $.0633 for the daily paper and from $.15 to $.19 for the Sunday paper apparently to achieve a measure of fair income. 10 Although the Employer contends that the amount of a subsidy is subject Continued 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD once established, remains basically fixed from week to week, it varies with each vendor. As noted above, there is a difference in the wholesale price charged routemen, and in those instances where a difference in the wholesale price does not give sufficient com- pensation to the routeman a subsidy is added. The Employer does not maintain payroll records for these motor routemen nor does it charge, with- hold, or in any other manner provide for routemen's Federal income tax, workmen's compensation, or so- cial security tax. Motor routemen usually make their own arrangements for a substitute when they want a vacation or holiday and when they are-sick. If and when they employ helpers or substitutes, they hire and fire them and establish their rates of pay. Certain of the motor routeman deliver bundles of papers to car- rier boys who walk the route delivering to homes. In those instances where the motor routemen hire the boys they collect from them and suffer any loss in failure to collect. This loss is minimal as the boys have an advance deposited, as required by the Employer, to secure the amount due. Motor routemen own, oper- ate, and maintain their own vehicles. The Employer normally supplies the number of papers requested by the routemen, and credits them for the "returns" (the clipped masthead of the unsold papers). Although there appears to be no express prohibition against the sale of other papers by motor routemen, only a few do so. Some of the motor routemen purchase coin racks from the Employer for vending newspapers in their area and are responsible for any theft or vandalism of the racks. When a customer loses money in a malfunc- tioning vending rack the Employer notifies the in- volved motor routeman and he is expected to reimburse the customer for thesloss. The price charged to customer is that fixed by the Employer." In determining the status of persons alleged to be independent contractors, the Board applies a "right of control" test, 12 which turns essentially on whether 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, or whether he con- trols only the result. In the latter situation , the status is that of an independent contractor. The resolution of this question depends on the facts in each case. No one factor is determinative. Here , as seems typical in cases of this kind, there are present factors supporting the position taken by both parties with respect to the motor routeman's status. In the instant case we are satisfied that the motor to negotiation with the individual routemen , insofar as the record shows, the amount of the subsidy is determined by the Employer. 11 There are two exceptions, one is a seller at the Thistledown Race Track and the other a dealer outside Employer's Akron, Ohio, circulation area. 12 Eureka Newspapers, Inc, 154 NLRB 1181 ; The Sacramento Union, Inc., 160 NLRB 1515. routemen are employees of the Employer. We are mindful that the evidence discloses several factors usually present in independent contractor relation- ships. However, these factors are not peculiar to such status and are not uncommon in employment rela- tionships. Thus we are not persuaded by and do not regard as controlling the facts that the routemen pro- vide their own equipment, that the Employer does not place motor routemen on its payroll, or grant them employee fringe benefits, or make the usual payroll deductions for them, that the motor routemen within certain limitations set their own working hours, or arrange for substitutes to work in their absence, or for that matter that the motor routemen hire, fire , and set the rates to pay for their helpers.13 The result to be accomplished is, of course, the circulation and sale of the Employer's newspapers. In accomplishing this result, the motor routeman bears slight resemblance to the independent businessman whose earnings are controlled by self-determined pol- icies, personal investment, and expenditure, and mar- ket conditions. Here the motor routeman must purchase his newspapers at a cost established by the Employer and sell them at a price no higher than the published price in the area or territory defined and controlled by the Employer. In addition, the motor routeman's risk of loss and capacity to draw upon personal initiative to increase his earnings are mini- mized to a significant extent by the Exmployer's prac- tices and policies of preventing competition between the motor routemen, of accepting returns for credit, of adjusting the wholesale rate, and of granting subsid- ies, apparently to compensate a motor routeman sometime for added expenses occasioned by the Employer's imposition of added duties, for effective performance, for cost-of-living changes, and for fluc- tuations within a territory-all affecting a motor routeman's earnings. Furthermore, the motor route- man has no proprietary interest in his route and this fact leads us to the view that at best he is no more than a licensee who, if he relinquishes his route , does so without compensation. On these facts, and the record as a whole, we cannot accept the Employer's contention that its control is limited to the end to be achieved. We find that the motor routeman's opportunities for profits are limited by the Employer's regulation and control of impor- tant aspects of the motor routeman's work. As the Employer has to a large extent reserved the right to control the manner and means, in addition to the result of the motor routeman's work, we conclude that the motor routemen are not independent contractors, but employees within the meaning of the Act." 13 San Antonio Light Division, 167 NLRB 689. 14 The Vindicator Printing Company, 146 NLRB 871, 875-876 ; The Sacra- mento Union, Inc., supra BEACON JOURNAL PUBLISHING CO. Accordingly, we find that a question affecting com- merce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(l) and Section 2(6) and (7) of the Act, and that a unit of the following employees is appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All motor routemen and/or agents in the circula- tion department of the Employer's Akron, Ohio, newspaper business, excluding all other employ- ees, and all supervisors as defined in the Act.15 15 Contrary to the position of the Union, the Employer would include Bruce Clapsaddle in Alliance/Sebring, Lester Conners located in southern Wayne and Holmes Counties, Larry Conrad in Ashland, and Broadway Hudson, a newsdealer at the Thistledown Race Track As there is insufficient 221 [Direction of Election 16 omitted from publication.] CHAIRMAN MILLER, concurring separately: I concur in the result. evidence in the record upon which we may make a finding concerning the status of the above-named individuals, we shall permit them to vote subject to challenge. 16 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear Inc, 156 NLRB 1236; N L.R.B. v. Wyman-Gordon Co, 394 U.S 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 8 within 7 days of the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.