Boston After Dark, Inc.

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boston After Dark, Inc. and United Electrical, Radio & Machine Workers of America (UE), Petitioner. Case 1-RC-12689 April 12, 1974 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Mark S. Halperin. Thereafter, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director for Region 1 transferred this proceeding to the National Labor Relations Board for decision. The Employer and Petitioner have filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. On the entire record in this proceeding, including the briefs, the Board finds: 1. The Employer 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 involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The appropriate unit: Boston After Dark, Inc. (the Employer), is a Massachusetts corporation engaged in the publication and distribution of "The Boston Phoenix," a weekly newspaper. The Employ- er's operations are divided into four departments: editorial, art, sales, and circulation. There is also an administrative staff. Responsibility for the overall direction of the four departments and administrative staff rests with the publisher, the executive vice president, and the general manager. The Petitioner seeks a unit of all regular and part- time employees including editors, contributing edi- t The parties stipulated that the following were supervisory employees who should be excluded from any unit found appropriate : publisher, executive vice president, general manager, editor, managing editor, managing editor-arts, circulation department director, sales department tors, associate editors, writers, including part-time or "freelance" writers, layout and art editors and staff, photographers, classified department employees, deliverymen, accounting and office clerical employ- ees, excluding the editor, managing editor, general manager, sales director, advertising sales coordinator and assistant, national sales coordinator and assist- ant, sales representatives, circulation director, news- stand sales managers, production manager and assistant, office courier, bookkeeper, credit manager, guards, and supervisors.' The Employer would add to that unit the advertising sales coordinator and his assistant, the national sales coordinator and his assistant, the sales representatives, the production manager and assistant, office courier, bookkeeper, and credit manager, and would exclude as supervi- sors the associate arts editor, the arts editor-music, and the arts editor-film. Finally, the Employer would exclude all "freelance" writers, cartoonists, and photographers as independent contractors. A. Full-time Employees The full-time employees in dispute, their depart- mental location, and the functions they perform are as follows: 1. The sales department The Petitioner would exclude from its proposed unit the entire staff of eight sales representatives. Six of the sales representatives sell advertising space in the newspaper to various local merchants and advertisers. Half of their time is spent in the office contacting customers by phone, and doing the necessary accompanying paperwork; the other half is spent outside the office soliciting advertisements directly. The other two sales representatives, the national sales coordinator and his assistant, sell newspaper space to national advertisers. As most of their solicitation is by mail or phone, they spend 80 to 90 percent of their time in the office.2 All sales representatives are paid on a straight salary basis, without commissions, although Employer may occa- sionally initiate a campaign during which sales representatives receive bonuses for selling a certain number of ads. All the sales representatives report to Sales Department Director Morris, who in turn is answerable to General Manager Wolk. Petitioner argues for exclusion of these employees on the grounds that they work under separate supervision, and that their duties and methods of compensation are different from those of other director, and art department director 2 Occasionally, however, the national sales coordinator or his assistant will travel to New York to service an account. 210 NLRB No. 4 BOSTON AFTER DARK employees. Petitioner also argues that they, unlike other employees, spend a considerable amount of time off the premises and experience little interaction or interchange with other unit employees. We find no merit in Petitioner's argument. The record clearly shows that there is substantial interac- tion between sales representatives and other unit employees. For instance, a sales representative may consult an employee in the art department concern- ing the graphic layout of an advertisement that might appear in the paper. Or a sales representative might coordinate with an employee in the circulation department in an effort to increase circulation in an area where a major account has just been sold. The offices of the sales representatives are located on the same floor of the building occupied by Employer as the art department, bookkeeper, and many associate editors. As is the case with all other unit employees, the sales representatives are salaried and are benefi- ciaries of Employer's fringe benefit package. Moreo- ver, while their immediate line of supervisory authority is different from other unit employees, they are, as are all the other employees, ultimately answerable to General Manager Wolk.3 In light of these circumstances, we find that the sales represent- atives share a community of interest with the other unit employees and, therefore, we shall include such employees in the unit.4 The Petitioner also seeks to exclude from the unit the advertising sales coordinator and her assistant. These two sales personnel coordinate and expedite, in a clerical capacity, the effort of the sales staff. They take and relay phone messages for sales representatives who are out of the office. They also are responsible for insuring that advertising material moves back and forth between the sales staff and various advertisers as required. In addition to this function, the advertising sales coordinator and her assistant service certain "house-accounts"; i.e., ac- counts with advertisers that no salesman is able to handle. The Petitioner also argues that aside from the fact that these two employees sell advertising space, and therefore should be treated like the other eight sales representatives, there exists a further ground for exclusion in that the advertising sales coordinator and her assistant possess supervisory status. We do not agree. The record clearly indicates that neither the advertising sales coordinator nor her assistant has the power to hire, lay off, or discharge employees, or 3 The directors of each of the four departments (the editor in the case of editorial department) are all directly responsible to Wolk 4 See Garden Island Publishing Co., Ltd, 154 NLRB 697, holding that in the newspaper industry a unit of all nonmechamcal employees is the optimum unit 5 The Petitioner originally sought the inclusion of Neal and Hurst on the basis of their office work. However, in its brief, it contends that the fact that 39 effectively recommend such action. Nor does the advertising sales coordinator exercise supervisory authority over her assistant. The only evidence of supervisory status relied upon by Petitioner is the function of these two employees in directing the office courier to carry,various materials between the sales office and various advertisers. However, neither the advertising sales coordinator nor her assistant exercises independent judgment in directing these deliveries. In fact, the courier exercises his own discretion in scheduling the order of his deliveries. Any judgment they do possess appears as an incidental adjunct to their clerical duty of expediting the flow of materials throughout the sales staff. We therefore shall include the advertising sales coordina- tor and her assistant in the unit. The Petitioner would also exclude the courier on the same basis it argues for exclusion of the sales representatives. The office courier's primary function is to deliver advertising and other material to and from advertisers pursuant to direction of the adver- tising sales coordinator, her assistant, and the sales representatives. For the same reasons we have included the sales representatives in this unit, we also include the courier. 2. The circulation department The Employer employs three men, Neal, Hurst, and Howard, who deliver newspaper bundles to various streetside distribution points and newsstands. Once a week they also drop off bundles of the newspapers at various local college campuses. In addition, Neal and Hurst perform odd casual jobs around the office. They also distribute and hang posters throughout an area on behalf of advertisers. Hurst and Neal spend approximately 15-16 hours per week distributing the newspapers and posters and another 8-10 hours doing other jobs for Employer. Howard, on the other hand, works only 6-7 hours per week distributing the newspaper, and does nothing else. While Employer and Petitioner have agreed upon the inclusion of Neal and Hurst in the unit,5 Employer argues for the exclusion of Howard alleging him to be a casual employee. We find merit in Employer's argument. Contrary to the Petitioner's contention, Howard presently spends the totality of his working time, 6-7 hours per week, away from Employer's premises. While Howard at one time did the two deliverymen do no office work , are paid on a commission rate for reservicing of newsstands, and accomplish their newspaper delivery work by use of delivery trucks they themselves own "clouds the issue " of their inclusion in the unit. We do not regard this as a formal abandonment of Petitioner's contention that these two men should be included in the unit, especially when the contention that they do no office work is rebutted by the record 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD some jam and clerical work on Employer's premises, Employer Publisher and President Mindich testified that he no longer performs such duties and the likelihood that he will do so in the future is speculative. We find that Howard does not possess a community of interest with unit employees and, therefore, we shall exclude him from the unit.6 3. The administrative staff The Petitioner seeks to exclude the bookkeeper on the grounds that he is both a professional and a supervisor. The record shows that the bookkeeper's main responsibilities are the keeping of Employer's general ledger and the maintenance of the payroll. He also prepares checks for the payroll and other disbursements. Final approval of all payments, however, rests with General Manager Wolk, who has the authority to sign the checks. The record is devoid of any evidence of the bookkeeper's supervisory authority, except for the fact that he participates in the interviewing of applicants for work on the administrative staff in order to advise management of their accounting skills and he helps familiarize new hires with their assignments. He is also consult- ed by accounting clerks on matters within his expertise. Furthermore, while he occasionally has given an assignment to one of the accounting clerks, it has not been in the normal course of their work. Finally, the bookkeeper has sat in on one manage- ment meeting. After examining all of the functions and responsibilities of the bookkeeper, we are unable to conclude that he is a supervisor. We will therefore include him in the unit.7 Petitioner would also exclude the credit manager as supervisory. The record shows that the credit manager's chief functions are to check credit references of various advertisers who seek to do business with the newspaper on a credit basis, and authorize extension of credit to such advertisers within guidelines set by General Manager Wolk.8 The credit manager maintains a list of all advertisers he believes should be cut off from further credit due to their persistent delinquencies, but Wolk sets the standard of delinquency. In the absence of evidence that the credit manager possesses any indicia of supervisory status, we find that the credit manager is not a supervisor and we will include him in the unit. 4. The art department The only two employees in this section whose positions are in issue are theproduction manager and his assistant. Petitioner seeks to exclude these two employees on the basis that they lack community of interest with the unit employees. The primary function of the production manager and his assistant is to coordinate and expedite the flow of newsprint from the layout stage to the galley stage. In this capacity, they spend a substantial portion of their working hours on the premises of Cambridge Composition, Inc. (hereinafter CCI), a company utilized by Employer to do its typesetting. CCI is located in the same building as Employer. Communi- cation between the two operations can be made by intercom. Petitioner, in its effort to establish a lack of community of interest, relies heavily on the fact that both the production manager and assistant are employed by CCI at the same time they are working for Employer, the former in a supervisory capacity. Petitioner also argues that both employees' work contacts are with supervisory rather than unit personnel of Employer. However, we view the evidence as supporting the existence of a community of interest between the production manager and his assistant and the unit employees. First of all, while the production manager does spend a great deal of time on the premises of CCI-some of it exclusively on behalf of CCI-he testified that, out of an average workweek of 55 hours, he spends 25-40 hours working on behalf of Employer. He further testified that his assistant spends almost all of his on-the-job time (20-25 hours per week) working for Employer.9 Moreover, the nature of the work done by these two employees has necessitated substantial contact with other employ- ees in the unit. In order to coordinate proper placement of stories, pictures, and advertisements in the newspaper before it is run off, the production manager and his assistant are in constant communi- cation with the layout editor, artists, and assistant advertising sales coordinator, even when they are on the CCI premises, in which case the intercom is used. For these reasons, we shall include the production manager and his assistant in the unit found appropri- ate herein.10 5. The editorial department The editorial department, headed by Editor Paul Corkery, is responsible for the substantive input of the newspaper. There are two sections of the editorial department: the news section, headed by Managing Editor William Miller, and the arts section, headed 6 Lowell Sun Publishing Company, 132 NLRB 1168. 9 Wolk has authorized extension of credit to any advertiser who pays his r Also, as Petitioner has not introduced any evidence that the bills within 60 or 90 days of billing. bookkeeper is a certified public accountant or a college graduate, we are 9 The assistant's working relationship with CCI consists of bringing in unable to find that he is a professional employee. Arden Farms, 117 NLRB business for which he is compensated on a commission basis. 318. 10 See fn. 4, supra BOSTON AFTER DARK by Managing Editor William Kowinski. Each weekly edition of the newspaper contains contributions from both sections. The news section appears as "section 1" of the newspaper. The arts section appears as an interior set of pages, referred to as the "second section" or "section 2." Corkery, Miller, and Kowin- ski have been stipulated by the parties as supervisors and hence excluded from the unit. However, the status of three full-time employees in this department is in issue: Arts Editor-Music Ben Gerson, Arts Editor-Film Janet Maslin, and Associate Editor of the Arts Section Richard Rosen. Employer would exclude these three as supervisory and managerial personnel. The record shows that Gerson and Maslin perform similar functions. Both editors are alloted by Kowin- ski a certain amount of newspaper space per week in the second section to fill with articles in their respective fields of knowledge. Both Gerson and Maslin are salaried, as are the other unit employees, and receive the same fringe benefits as they do. Gerson and Maslin depend almost exclusively on freelance reporters to supply articles for their respective sections. Usually, Gerson and Maslin decide in advance what events or subjects they want covered and solicit the desired articles from a pool of freelances whom they have relied on in the past to write articles for them, although a freelance may submit an unsolicited article which Gerson or Maslin might decide to publish. Occasionally Gerson and Maslin will write and submit articles themselves. Both Gerson and Maslin edit the articles submitted for grammar, style, and occasionally content. They also determine how much a freelance is to be paid for an article, although minimum and maximum amounts of compensation are set by Kowinski.11 Kowinski has ultimate authority over the content of the arts section of the paper and over which freelance reporters will be chosen to write articles for that section. On occasion, he has vetoed Maslin's selec- tion of various freelances to write certain articles, and has accepted for publication an article that Maslin had rejected. While Gerson and Maslin use a great deal of independent judgment in their efforts to formulate the scope and content of the arts section of the newspaper, there is little evidence that such judgment is used in connection with supervisory powers over any of the employees of the newspaper, as contem- plated by Section 2(11) of the Act. Employer points to the occasional assignment by Gerson and Maslin 11 If either Gerson or Maslen wishes to pay a freelance a fee outside the range set by Kowinski, Kowinskl's or Corkery's approval must be obtained. 12 New England Telephone and Telegraph Company, 90 NLRB 639; Burke Brewery, Inc., 54 NLRB 1061; Julien P. Friez & Sons, Division of Ben&x Aviation Corp., 47 NLRB 43; Eastern Camera and Photo Corp., 140 NLRB 41 of arts section articles to regular employee staff writers on the news section of the newspaper as evidence of their supervisory status. We disagree. We note from the record that Gerson has the apparent authority to cross interoffice lines of authority and ask an employee of the news staff to write an article for him. However, whether the article can be written depends on the assent of the employee and the willingness of Managing Editor Miner to make him available for the assignment. Similarly, Maslin has on occasion assigned articles to regular news section employees who express a willingness to take on such assignments, but she has no authority to order these employees to write articles for her . We are unable to equate the practice of requesting employees in other administrative departments to perform assignments if they are willing, and then only if their supervisor approves the assignment, with the authority to assign work as contemplated by Section 2(11) of the Act, and therefore find that Gerson and Maslin are not supervisors. Employer argues that Gerson and Maslin are managerial employees, relying on Retail Clerks International Association, AFL-CIO v. N.LRB., 366 F.2d 642 (C.A.D.C., 1966), and Board cases cited therein,12 for the proposition that an employee is deemed "managerial" and hence excludable from a unit of employees if he meets one of two tests: (1) Even if he does not supervise other workers, his position with the employer presents a potential conflict of interest between the employer and the workers, i.e., the employee is closely related to or aligned with the management , or (2) he formulates, determines, and effectuates an employer's policies or he has discretion in the performance of his job, but not if the discretion must conform to an employer's established policy. However, in North Arkansas Electric Cooperative, Inc., 13 the Board held that whether or not an individual was deemed "managerial" turned on whether he participated in the formulation, determi- nation, or effectuation of policy with respect to employee relations matters, or whether there existed other inconsistencies or conflicts of interest between his proper performance of his job and the imple men- tation of his right to engage in or refrain from engaging in concerted activity.14 Employer alleges such a conflict of interest in that Gerson and Maslin, if included in the unit, would be subject to pressure from the Union to assign to regular employees articles which would ordinarily be 569 13 185 NLRB 550, enforcement denied 446 F.2d 602 (C.A. 8, 1971). 14 See also McDonnell Aircraft Company, a division of McDonnell Douglas Corporatiorn 207 NLRB No. 91. a DECISIONS OF NATIONAL LABOR RELATIONS BOARD assigned to freelances. However, we perceive no such conflict of interest because neither Gerson nor Maslin has authority to assign, in the normal course of operations, articles to regular employees. Their sole authority lies in the procurement of music or film-related articles from independent sources; i.e., freelances.15 Therefore, we find that Gerson and Maslin are not managerial personnel but rather are Section 2(3) "employees." We shall include them in the unit found appropriate herein. Richard Rosen's function as associate editor of the arts section is twofold. First, he is responsible for obtaining book reviews for each issue of the newspaper. In this regard, his function is similar to that of Gerson and Maslin. He is alloted a certain amount of space per week by Kowinski for book reviews. He selects books to be reviewed and picks the freelances from a list to do the reviews. He then edits the reviews submitted. Kowinski can veto Rosen's choice of books to be reviewed, the freelanc- es who write the reviews, and the reviews as finally submitted. Rosen has the authority to negotiate compensation for the freelance writers, but again within parameters set by Kowinski. In addition to his function as book review editor, Rosen serves as Kowinski's assistant, taking over his duty as manag- ing editor of the arts section whenever Kowinski is on vacation, out of town, or otherwise unavailable for work.16 In this capacity, Rosen assigns articles to freelances concerning other aspects of the arts section, e.g., the theater or fine arts, and he edits their work. He also works with the layout editor regarding the arrangement of articles within the arts section. Furthermore, as assistant to Kowinski, Rosen has on occasion suggested editorial changes in the material of regular staff employees. Such changes are often adopted by these staff writers without protest. We do not believe that Rosen possesses supervisory authority. As is the case with Gerson and Maslin, the record reveals that Rosen's primary responsibilities he in the area of directing the work of freelances, not employees. In this regard, we do not regard Rosen's occasional suggestion of editorial changes to articles written by employees as tantamount to the responsi- ble direction of employees contemplated by Section 2(11) of the Act. Nor is there any basis for excluding Rosen from the unit as a managerial employee. While Rosen may use a considerable amount of discretion in the formulation of the weekly arts section, his association, direct or indirect, with the labor relations policies of Employer is sufficiently remote to preclude any conflict of interest should Rosen be included in the unit. For these reasons, we shall include Rosen in the unit found appropriate herein. B. Freelance Contributors It has been the practice over the years for Employer to rely heavily on so-called freelance writers, cartoonists, and photographers to contribute articles, columns, cartoons, and photographs to the newspaper. The arts section comprises almost exclu- sively such material. From January 2 to May 15, 1973, approximately 85 freelances made 600 contrib- utions of various sizes to the newspaper's 19 weekly issues. Petitioner seeks to include in the unit all freelances who contributed six or more articles, cartoons, or photographs within this 19-week period. There are 39 in this category. Its claim for inclusion is based on the fact that these 39 have an ongoing relationship with the paper, holding themselves ready to contribute material on a regular basis, and indeed being relied upon by Employer to do so. Because of such a close affiliation, these freelances, the Petition- er argues, take on the characteristics of, and thus share a community of interest with, the stipulated unit employees. Employer, on the other hand, argues for the exclusion of these people as independent contractors. The relationship of each of the 39 freelances in issue to Employer is by no means the same, but rather ranges from a situation in which a freelance submits the minimum 6 articles on an unsolicited basis, to an arrangement whereby a freelance is depended upon to make a contribution every week and is paid a constant weekly sum for his regular contributions. A common characteristic shared by all freelances, however, is their method of compensa- tion; all are paid on a piece rate without any payroll deductions. Also, they do not partake of Employer's fringe benefit package as do the unit employees. For reasons set forth below, we hold that all the freelances are independent contractors. Fred Barron is the most prolific freelance associat- ed with Employer. In the representative 19-week period since the beginning of 1973, Barron has made 37 contributions to the newspaper, including a weekly TV column, and is paid by the piece. Earnings derived from these contributions represent his sole source of income. He participates fully in the weekly Monday meeting in which the heads of each section assign articles they desire to have written for upcoming issues or take suggestions from various employee-writers or freelances as to certain articles they would like to write. Barron spends a considera- ble amount of time working at the newspaper's office 15 For the reasons set forth below, we do not regard any of the freelances 16 Rosen testified that he would soon be filling in for Kowmskl for a 3- who contribute material to the newspaper as employees. to 4-week period while Kowtnski was out of the office. BOSTON AFTER DARK 43 and receives mail and phone calls there. Articles and columns submitted by Barron are often edited for content as well as grammar. Barron's name is listed on the masthead of the newspaper. Carolyn Clay is engaged by Employer as contribut- ing arts editor for the theater. In this capacity, she is relied upon by Employer to furnish two or three theater reviews per week. While she usually writes the reviews herself, she does on occasion procure theater reviews from other freelances. Clay is paid a flat $50 per week for her service of providing theater reviews, regardless of how many reviews she writes, so long as she writes at least one article per week. She is further reimbursed for any money she has paid to other freelances for their reviews. Clay has contribut- ed 28 articles to the paper in the 19-week representa- tive period. She, like Barron, attends the Monday meetings where the contents of the upcoming issues are determined. Susan Phillips is engaged by Employer as a contributing news editor. She writes a weekly question-and-answer column in the news section of the paper, for which she receives a weekly fee. In order to supplement her income, she writes addition- al articles of varying length for which she receives additional compensation. In the first 19 weeks of 1973, Phillips contributed a total of 27 articles, including her weekly columns. Her columns are subject to editing and, on a few occasions, she has been asked by Corkery to delete certain questions. Phillips makes use of the telephone in the newspaper office and receives mail in her own mailbox there. She also attends the Monday staff meetings to obtain assignments. Phillips is reimbursed for expenses incurred in connection with the writing of her articles. She has no income other than what she gets from the Employer. Larry Gonick contributes a panel cartoon to the paper each week for which he is compensated a fixed sum. He also draws occasional extra illustrations on a piece-rate basis. In the first 19 weeks of 1973, Gonick made 21 contributions to the paper. His cartoon strips have been edited on a number of occasions for content. At one point, Gonick was instructed to restrict the subject matter of his cartoon to local issues, although cartoons covering other issues have also been published. Gonick depends on his earnings from the newspaper for most of his income. Gonick spends a substantial amount of time at the newspaper office, attending about 50 percent of the Monday staff meetings. His actual cartoon illustration work is divided evenly between home and the newspaper office. Gonick received a Christmas bonus last December, as did the unit employees. Another cartoonist, whose work appears somewhat less frequently (19 contributions in 19 weeks), is David Sipress. Sipress draws a straight one-panel cartoon for a fixed sum per week. He also sells the same cartoon to other newspapers on a syndicated basis. While these contributors 17 possess many indicia of employee status, i.e., regularity of compensation, frequent presence at the newspaper office and use of its facilities, substantial dependence on earnings from the newspaper, exposure of their work to correction or substantive editing by Employer, there is one crucial element running through the relation- ships of all of these contributors which sets them apart from regular unit employees: their ability to refrain from contributing material any given week or weeks without prejudicing their chances of contribut- ing more material at a later date. Even regular contributors like Phillips and Barron have ceased writing for various periods of time and have been able to continue their columns when they returned. Of course, while absent, no freelance is entitled to vacation pay, as they do not, as noted earlier, participate in Employer's fringe benefits. Unlike regular staff writers, freelances are not required to attend the Monday staff meetings and undertake assignments. The fact that certain free- lances attend these meetings with frequency merely reflects their desire to earn more money. Moreover, freelances are free to write for other newspapers, even competitors of the Employer, while regular employees may be prohibited from engaging in such activities. It is mainly the freedom of freelances to submit articles to the Employer as frequently or infrequently as they wish plus the "no work-no pay" assumption under which they work which leads us to conclude that the above-discussed writers, photogra- phers, and cartoonists are independent contractors rather than employees. It also goes without saying that the same logic which applies to these contrib- utors also applies to the remaining 27 freelances who have contributed less than 19 articles in this representative 19-week period, and who possess no more indicia of employee status than the freelances discussed above. We therefore shall exclude all 39 freelances from the unit herein found appropriate.18 In accordance with all the foregoing, we find that 17 There are other people who have averaged at least I contribution per (photographer, 20 contributions), and Myron Meisel (writer, 19 contribu- week-Bill Purdy (photographer, 35 contributions in the 19-week represent- tions)-whose relationship with Employer are not described specifically in ative period), Charlie McCollum (columnist, 31 contributions), Mike Barron the record. (writer, 30 contributions), Lois Greenfield (writer and photographer, 21 18 We are also excluding Celia Gilbert, contributing arts editor in charge contributions), Maje Waldo (photographer, 21 contributions), Pam Schuyler of poetry and fiction, whom Petitioner seeks to include in the unit. While (Continued) 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the following employees constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of Boston After Dark, Inc., at its office at Boston, Massachusetts, excluding the publisher, executive vice president, general manager, editor, managing editor, managing editor-arts, circulation depart- ment director, sales department director, art department director, casual deliveryman James Howard, "freelance" writers, photographers, and cartoonists, supervisors, and guards. [Direction of Election and Excelsior footnote omitted from publication.] MEMBER FANNING, dissenting: Unlike my colleagues, I would not exclude all so- called "freelance" writers, cartoonists, and photogra- phers as a class merely because they are compensat- ed on a piece-rate basis. There are other relevant factors which the majority opinion fails to consider. The "right-of-control" test, which the Board uses so often in determining whether a person is an employee of an employer or merely an independent contractor,19 would appear singularly inapplicable when dealing with the personal services rendered by professional personnel such as the writers, cartoon- ists, and photographers involved in this case. Given the independent manner in which they do their work, and the high degree of discretion utilized in connec- tion with it, what is important to the Employer is the end result, the article or whatever finished product is anticipated. In such instances, therefore, the Board has paid less attention to the "right of control" and more attention to an analysis of the degree to which the professional personnel have been integrated into the operating organization of the employing unit.20 On the only occasion in which the Board has addressed the issue of employee status of newspaper reporters, Plainfield Courier-News Co.,21 it found suburban correspondents of a city newspaper to be employees of the newspaper rather than independent contractors. In so doing, the Board relied heavily on the fact that the work of such correspondents was closely integrated with, and constituted an essential part of, the employer's business, notwithstanding the facts that their earnings depended in part on the amount of and quality of material they submitted, their supervision by their employer was minimal, and their method of compensation-a periodic sum of money without any deductions for taxes-differed from that of other unit employees. However, this crucial consideration of integration into the Employ- er's operation was totally ignored by my colleagues in making their decision in the instant case. There is no doubt that the contributions of so- called freelances are indeed an essential part of the Employer's business. The record indicates that freelance articles constituted, on the average, appiox- imately 50 percent of the content of section 1 of the newspaper. Section 2, the arts section, comprises almost exclusively freelance contributions. The ultimate question, however, is how many freelances have, by their own individual contributions, proved themselves so essential an element of the Employer's reportorial effort as to be deemed employees of the Employer rather than independent contractors. Put another way, how frequently must a freelance make contributions to the Employer's weekly newspaper before he is to be regarded as an essential individual whose work has become highly integrated into the Employer's business? The answer to this question would define the class of employees to be included in the unit. A statistical exhibit offered by the Employer and accepted by the Hearing Officer shows that in a representative 17-week period (the first 4 months of 1973), a total of 171 freelances contributed to the newspaper.22 The vast majority of these freelances, over 80 percent, appeared in only one to five issues in the 17-week period. Given this infrequency of appearance, I would find their relationship with the Employer's business sufficiently casual to preclude a finding that these freelances are employees. Howev- er, the Employer's exhibit also shows that over 10 percent of the freelances, 18 people, appeared in more than half of the 17 weekly issues ; in fact, 6 freelances appeared in every issue. It would appear that any such freelance, appearing on the average of her responsibilities seem somewhat similar to those of Gerson and Maslin, t.e., securing poetry from various poets for publication in the newspaper, she is paid only when she provides this service . If she doesn't supply a poem for any given issue, she will not be paid that week. Her function more resembles that of Carolyn Clay, whom we have excluded as an independent contractor. We therefore also exclude Gilbert as an independent contractor. 19 As recently stated by the Board, the test is "whether the person for whom the individual performs services controls not only the result to be achieved, but the manner of achieving it." Peerless Publications, Inc., 190 NLRB 658, 660. 20 See San Marcos Telephone Company, 81 NLRB 314. 21 95 NLRB 532. 22 There is a substantial variance between the Employer's statistics and those of the Petitioner, which place the number of freelances contributing to the paper in the first 19 weeks of 1973 at 85. However, for purposes of this analysis, this variance is irrelevant. at least once every other week, possesses a sufficient my colleagues, find all freelances, regardless of their ongoing relationship with the newspaper so as to; number, whose work appeared in at least half of the warrant the conclusion that his work is closely 17 weekly issues in the first 4 months of 1973 to be integrated with and constitutes an essential part of, employees and would include them in the unit found the Employer's operations. I would therefore, unlike 'appropriate herein.