The Constitution Publishing Co.

In the Matter of THE CONSTITUTION PUBLISHING COMPANY and AT- LANTA NEWS CARRIERS AND CIRCULATION EMPLOYEES' UNION No. 445, AFFILIATED WITH THE INTERNATIONAL PRINTING PRESSMEN & A[,ISTANTS' UNION OF NORTH AMERICA Case No. R-2017.-Decided January 21, 1941 Jurisdiction : newspaper publishing industry. Investigation and Certification of Representatives : existence of question: denial of employment relationship; election necessary. Unit Appropriate for Collective Bargaining : newspaper carriers, including car- riers who are also district managers or supervisors' who deliver newspapers to subscribers in the city and environs. Newspaper carriers who are also district supervisors or managers included in unit although neither their- inclusion nor exclusion was specifically re- quested by the only union involved, in view of 'their eligibility to membership in said union and testimony of union representative that carriers and district managers have an iterest in common that would make it advisable for them to be included in one bargaining unit. Definitions : newspaper carriers held employees within the meaning of the Act. Mr. Allen Post, of Atlanta, Ga., and Mr. Elisha Hanson, of Wash- ington, D. C., for the Company. Mr. Frank Morrison, of Atlanta, Ga.; for the Union. Miss Grace McEldowney, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 1, 1940, Atlanta News Carriers and Circulation Employees' Union No. 445, affiliated with the International Printing Pressmen & Assistants' Union of North America, herein called the Union, filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a peti- tion alleging that a question affecting commerce had arisen concern- ing the representation of employees of The Constitution Publishing Company,' Atlanta, Georgia, herein called the Company, and request- ing an investigation and certification of representatives pursuant to ' Incorrectly designated in the petition and notice of bearing as The Constitution Publishing, Co. 29 N. L. R. B., No 10. 105 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 30, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the-Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations -Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. The Company thereupon filed a motion to dismiss and a paper designated as an answer, in which it alleged, in substance, (1) that the carriers involved in the proceeding were not employees of the Company, but independent contractors, (2) that they operated entirely within the State of Georgia and were, therefore, not engaged in commerce within the meaning of the Act, (3) that they were not all appropriate bargaining unit, and (4) that the Union did not represent a majority of such carriers. Pursuant to notice duly served upon the Company and the Union, a hearing was held from August 21 to 23, 1940, inclusive, at Atlanta, Georgia, before Alexander E. Wilson, 'Jr., the Trial Examiner duly designated by the Board. The Company and the Union were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing'on the issues was afforded both parties. The Trial Examiner made no ruling on the Company's motion to dismiss. ' It-is hereby denied. During the course of the hearing, the Trial Examiner made several rulings on other motions and on objections to the admis- sion of evidence. The Board has reviewed the rulings of the Trial Examiner, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to a request therefor by, the Company, and upon notice to both parties, a hearing was held before the Board in Washington, D. C., on September 12, 1940, for the purpose of oral argument. The Company appeared and presented argument. The Company also filed a brief, which has been considered by the Board.2 Upon the, entire record in the proceeding, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Constitution Publishing Company is a Georgia corporation which publishes the Atlanta Constitution, a daily and Sunday news- paper, in Atlanta, Georgia. The chief raw materials used by the 3 The Union did not file a'brief, although permission to do so was requested and granted., THE CONSTITUTION PUBLISHING COMPANY- - • A 107 Company, 90 per cent of which are purchased outside the State of Georgia, are news print, ink, and type metal. The total value of such materials used annually is more than $500,000. Approximately 15 per cent of the advertising and 50 per cent of the other lineage of the newspaper are obtained from outside Georgia. The Company makes use of Associated Press and United Press wire services. The circulation of the daily Atlanta Constitution is approximately 122,787, and of the Sunday edition, 135,955, of which 3,479 and-7,530 papers, respectively, go to points outside the State. Between 60,000 and 65,000 papers are handled by the city circulation department. Exclusive of the newspaper carriers whose employee status is here in issue, the Company employs approximately 500 persons. Although the activities of the carriers are performed wholly within the State of Georgia they comprise, as we hereinafter find, an integral part of the Company's business. II. THE ORGANIZATION INVOLVED Atlanta News Carriers and Circulation Employees' Union No. 445 is a labor organization affiliated with International Printing Pressmen & Assistants' Union of North America and, through it, with the American Federation of Labor. It admits to membership newspaper carriers and district managers engaged in the delivery of the Atlanta Constitution in the city of Atlanta and environs. 111. THE STATUS OF THE NEWSPAPER CARRIERS The individuals involved in this proceeding are approximately 185 carriers connected with the Company's city circulation department,' who deliver papers to subscribers in Atlanta and environs. The Com- pany contends that they are independent contractors and therefore not employees within the meaning of the Act: To determine their status under the Act it is necessary for us to consider various pertinent factors in the relationship of the parties in addition to the terms of the contracts under which they operate. The city circulation department is headed by the city circulation manager. About 14 district supervisors or managers are employed under him to assist the carriers in performing their duties. These district supervisors have authority to enter into contracts with car- riers, subject to the approval of the city circulation manager,' and to terminate the relationship when unsatisfactory. Six of the district supervisors are also carriers. The carriers deliver papers on routes covering specific areas desig- nated by the ,Company. The number of subscribers on the routes s Until the adoption of a new form of contract in June 1940 , district supervisors could enter into contracts with carriers without such approval 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD varies from less than 100 to nearly 1,000. Whatever helpers'they need are hired by the carriers themselves, the only requirement being that such helpers shall be over 16 years of age. Papers are picked up by the carriers at the office of the Constitution after "checking-in" at 3 a. m., or in some cases, are delivered to them by other carriers. Any instructions from the Company are received in the office mail at the same time. The Company furnishes subscription books in which the carriers are required to keep the list of their subscribers and which are turned in at the office for new ones when needed. It also sells them forms for statements to subscribers, and supplies such equipment as subscription blanks, stickers to affix to sample copies, and delivery boxes when needed. On certain routes where the return from sell- ing papers is insufficient, it furnishes car allowances. 'It holds "pep meetings" and conducts contests as an incentive to the carriers to increase the number of their subscribers. Each carrier has a contract with the Company in which his route or district is specified. The form of agreement used for many years prior to June 1910, and under which the majority of the carriers are still working, contains substantially the following provisions : the route and list of subscribers on the route are the property of the Company; the carrier agrees to make every possible effort to main- tain and add to the number of subscribers and to handle xlo other' daily or Sunday paper; he agrees to deliver papers, make collections, and canvass on his route; any assistant, substitute, or helper used in the delivery of papers or in collections is to be responsible to him; he is to make provision to have his route taken care of in case of sick- ness; the Company is not liable for any conduct or agreement made by the carrier with his helpers; the carrier is to pay the Company a fixed price per copy for papers to be supplied to subscribers, and a different rate for excess papers, and is to pay his bill for such papers at the office of the Company not later than Tuesday noon of each week; he is to de- liver'the paper to such place as the subscriber may desire, at a weekly or monthly rate established by the Company; 4 papers are to be de- livered to him at the Company's delivery room; he agrees to" furnish to the Company• upon request a list of subscribers on his route; he is to carry free of ,eharge all complimentary papers authorized by the Company; he is to deliver papers on paid-in-advance subscriptions at a weekly cost to the Company equal to the-amount paid by the sub- scriber; he is to turn in to the Company the full amount collected on -quarterly, semi-annual, or annual subscriptions,5 and is to receive credit .each week until the subscription has expired; he is to deliver all sam- 4 The price of the paper to 'carriers is 16 cents a week, and to subscribers 25 cents a week or $1.10 a month. 5 The quarterly, semi-annual, and annual rates are slightly less proportionately than subscriptions by the week or month. 'THE CONSTITUTION PUBLISHING COMPANY 109 ple copies free of, cost to the Company, and copies for which the Com- pany collects and assumes the risk of payment, at 2i/_> cents a week; he is to deliver reasonable numbers of papers to newsdealers on his route free of cost to the Company; the Company may terminate the agreement whenever the carrier fails to meet any stipulation of the contract; if the carrier desires to give up his route, he is to give the Company 15 days' notice and to instruct his successor for 7 days with-, out charge; the agreement otherwise is to continue in effect as long as mutually satisfactory; if the subscription price is, advanced, the carrier is to -pay a corresponding increase; and the Company will recognize no agreement or understanding except as- set forth in the "carrier's, agreement." A new form of contract, adopted by the Company in June 1940, and designated as an "Independent Distributor Agreement," contains sub- stantially the same provisions, and further provides for a cash deposit 6 by the carrier and for termination of the agreement by either party on 15.days' notice. According to the present city circulation manager, the 25 or 30 recently hired carriers who have signed the new agreement operate in the same way as those still working under the old agreement, and no effort has been made to have the old carriers sign new con- tracts. - Some time prior to 1934 the city circulation manager prepared and distributed to some, if not all, of the carriers a mimeographed folder containing a section headed "Atlanta Constitution Carrier Rules." which began with the following statement : These rules are made a part of the carrier's contract ; strict adherence to these rules guilds [sic] good will and correct business principles. "The following are established by the management of The Con- stitution Publishing Company, herein-referred to by the Company as `Carrier's Rules,' governing carriers of the daily and Sunday Constitution. These rules are subject to such reasonable changes from time to time, as shall be made by the Company upon written notice to the carriers. Among provisions contained in the folder, but not in the contracts above discussed, were the following : no carrier was to be financially interested in any route of any other newspaper or carry or deliver cir- culars or advertising matter; routes, route books, and lists of sub- scribers were the property of the Company, to be delivered to it on demand; carriers were not to deliver outside the boundaries of their Deposits were not specified in the first form of .agreement , but before beginning work carriers were required to host bonds ' in an amount 'sufficient to take care of ' their bills i for two leeks. • 110 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD routes except on the request of the Company ; they were to make .deliv- eries, as early as possible; they should employ as helpers only those thoroughly responsible and acceptable to the Company; they should be on hand to receive their papers and should complete deliveries at stated hours; papers should be placed as specified; in case of a complaint from a subscriber that a paper had not been received, one would be sent by special messenger and the cost of messenger service would be charged to the carrier; any carrier having an unreasonable number of com- plaints against him would be dismissed ; when requested by the Com- pany to deliver a paper on or off his route, the carrier was to do so without question; new subscribers were to be reported to the circula- tion department ; new orders sent to the carrier by the circulation de- partment were to be delivered the same day and the orders verified and entered on his route book ; in case of stop orders the carrier was to see the subscriber and try to save the subscription; he was to increase the number of subscribers by. canvassing continually ; carriers were to col- lect from subscribers weekly or monthly in the manner most satisfac- tory to the subscribers; they we're not to extend credit to subscribers for longer than one month; they were to pay accounts in full on Mon- day and not later than Tuesday noon of each week; every carrier was required to furnish a cash bond equal to three weeks' paper account. A similar folder in which 'there were additional paragraphs out- 'lining the duties of route supervisors and providing that carriers would be subject to dismissal for drawing extra papers except ,on an- average of one copy for each 100 subscribers, was mimeographed at a later date. These folders were not attached to any of the carriers' contracts, nor were they executed by the carriers. Apparently they have not been distributed or specifically, referred to for several years, and the Company contends that their provisions were never enforced, and in spite of being designated as rules, were in fact' meant merely as helpful suggestions for new carriers, based on the experience of the Company. Various carriers testified, however, that they considered themselves obliged to follow most, although not all, of the provisions set forth in the folders, and that many of the same matters, as well as others, were from time to time called to their attention orally or in notes from their district supervisors. Even if they are not obliged to comply with such suggestions or requests, it is natural that under the circumstances the carriers feel that it is advisable for them to do so.7 Thus it appears that the so- called rules, whether intended as such or merely as suggestions, in 4 As one carrier testified in regard to the various things he was called on to do, with particular reference to attendance at "pep meetings" "There ate no specific set rules tor not doing them, if you don't do them , J don't know of anything ; there has pever been anything said, but you know when a meeting of that kind is called, if you don't you show a lack of interest , and naturally it works up to something greater." THE' CONSTITUTION PUBLISHING COMPANY 111 actuality govern to a considerable extent the manner in which the carriers operate. In addition to the duties of delivering papers, making their own collections, and soliciting new subscribers on their routes, as pro- vided in their contracts, carriers have on occasion, at the request or suggestion of the Company, made deliveries and solicited subscrip- tions on other routes, made collections for insurance contracts, bev- erage sets, and other subscription boosters; supplied the Company with lists of their subscribers, secured the dates of birth of subscribers who had taken out insurance through the Company, affixed stickers to sample copies of the paper, collected for papers sent to subscribers by. mail when temporarily out of town, and for magazines for which subscriptions had originally been taken in other localities, delivered papers to a hotel and to other carriers, paid for special messenger service when papers have been sent out by the Company on receiving .complaints of non-delivery, and endeavored to secure "quotas" of new subscribers set by the Company. For some but not all of these services they have received additional compensation in the form of commissions, prizes, or bonuses. Admitting that the observance of the foregoing requests inures to the benefit of the carriers as well as the Company in increasing cir- culation, the fact that the methods of achieving this result are decided on by the Company without consultation with the carriers tends to negative the contention of the Company that the carriers are in fact independent contractors. The control exercised by the Company is also shown by the fact that routes to which carriers were originally assigned have in some cases been changed without consulting them; that carriers have not been allowed to deliver outside their own routes except on permission from the city circulation manager; and that they have been expected to give their full time to their work as carriers. ' The Company contends, however, that carriers are not listed on its pay roll, and have been regarded by the Company as independent contractors ever since the present system was started in 1912. The president of the Company testified that its does not pay and has not been requested to pay workmen's. compensations to its carriers.or social security' taxes for them ; that it does not pay Georgia unemployment ,contributions for them; that it does not carry public liability or property damage insurance on them; and has never been sued on claims based on their torts. The Company offered in evidence a decision of the DeKalb Superior Court," in which carriers of another "Hearst Consolidated Publications, Inc. operating as Atlanta Georgian and Sunday American vs. Ben T. Huiet, Commissioner of the Department of Labor of the State of Georgia and Herschel T Cruce, decided May 10, 1940. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlanta newspaper, working under contracts similar iii many respects to the new contracts adopted by the Company," were held not to be employees for unemployment compensation purposes.10 In its brief it cited also another State decision,h1 involving workmen's compensa- tion, in which it claimed that newspaper carriers were held not to be employees, and rulings of the Internal Revenue Bureau to the' same effect in connection with social security taxes. Without passing upon the nature of the relationship for other purposes, we are ,of the opinion that the carriers, here involved are employees of the Company within the meaning of the National Labor Relations Act. Section 2 (3) of the Act provides in part that when used therein "the term `employee' shall include any employee . .." We have previously held that the term embraces all employees in the conventional as well as the legal sense.12 In the instant case the delivery of the Company's newspapers is shown to be a continuing and integral part of the Company's business. The Company supplies the carriers with a large part of the instru- mentalities by which their work is performed. It controls the pur- chase and resale price of the newspapers and limits the activities of the carriers to specified routes, thus rendering ,the remuneration received by them more nearly analogous to wages or salesmen's cola'- missions 13 than to profits from an independent enterprise. Finally, through the provisions of the form contracts to which it requires the carriers to subscribe and through the additional rules promulgated by it, the Company exercises a degree of control over the work of the carriers which is consistent only with an employer-employee relationship. We accordingly find that the newspaper carriers in- volved in this proceeding are employees within the meaning of Section 2 (3) of the Act.11 ° The new form of contract was adopted by the Company soon after this decision was issued 10 It is to be noted that the court based its decision in part on its finding that it saw "nothing in the record to authorize a conclusion that the claimant 's services were under Elie control or direction of the Georgian Company " 11 United States Casualty Company v Scott, 51 Ga App 115. 179 S E 640 The decision in this case was merely that "the finding . . the effect of which was that the injury was not compensable , because it did not arise out of and during the course of his [the newsboy 's] employment, was supported by the evidence " z Matter o f Seattle Post-Intelligencer Department of Hearst Publications , Inc and Seattle Newspaper Guild, Local No. 82, 9 N L R B 1262' iiCf Matter of Washington Branch of the Sun Life Insurance Company of America and Industrial and Ordinary Insurance Agents Union No 213511, Industrial and Ordinary In- surance Agents Council, 15 N L R. B 817 : Matter of John Hancock Mutual Life Insurance Company and American Federation of Industrial and Ordinary Insurance Agents Union No 21571, East St Louis and Vicinity, Illinois, et al.; 26 N L R B' 1024 14 See Matter of Stockholders Publishing Company , Inc and Los Angeles Newsboys Local Industrial Union No 75, C 1 0 at al. 28 N L R B , No 1006 Cf Matter of Houston Chioniele Publishing Company and Houston Newsboys Union, Local No 1156, 28 N L R B. No. 1043. THE CONSTITUTION PUBLISHING 'COMPANY 113 IV. THE QUESTION CONCERNING REPRESENTATION At the hearing it was stipulated by the parties that on, or about March 4, 1940, and agilin on June 28, 1940, the Union made requests for recognition to the proper authorities of the Company, but that the requests were refused for the reasons given in the Company's answer and motion to dismiss. A report prepared by the Regional Director was introduced in evidence, showing that the Union repre- sents.a substantial number of employees in the'unit hereinafter- found to be appropriate.15 We find that a question has arisen concerning the representation of employees of the Company. V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in_ Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE APPROPRIATE UNIT In its'petition the Union described the appropriate bargaining unit as "newspaper carriers in the City of Atlanta and environs."- It did not request the inclusion of district supervisors, although it admits them to membership and although the union representative testified at the hearing that, "the news carriers and the district managers,'.and they only, . . . of the employees of the Atlanta Constitution have an interest in common that would make it seem advisable for them to-be included in one bargaining unit." Neither did the Union ask for the exclusion from the unit of those carriers who are also district managers or supervisors. We interpret the position of the Union to be that the unit should comprise all carriers employed by the Com- pany in Atlanta and environs, including those who are also employed as district managers or supervisors. The Company contends that the claimed unit is not appropriate because there is no essential difference between the duties of such car- The union submitted to the Regional Director 153 membership application cards, dated as follows 100 between Febiuary 1, 1940 and May 1, 1940; 42 between May 1, 1940, and August 1. 1940; 2 after August 1, 1940, and 9 undated Of the 153 apparently genuine original signatures affixed to these cards, 123 were the names of persons on the Company's list of city and suburban news carriers as of July 27, 1940 The city circula- tion manager testified that there were approximately 185 such carriers, including super- visors who had routes 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD riers and the duties of carriers outside Atlanta, and , because the carriers' helpers are not included. It does not appear, however, that the Union has attempted to organize carriers' helpers or any carriers except those in its proposed unit; and iao other labor organization has attempted to bargain collectively for any of the Company's car- riers. In the absence of such organizational efforts on a broader basis, we'see no reason for dismissing the petition on the grounds sug- gested by the Company.'6 We find that newspaper carriers, including carriers who are also district managers or supervisors, who are employed by the Company to deliver the Atlanta Constitution in Atlanta and environs, consti- tute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit ,of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VII. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the represen- tation of employees of the Company can best be resolved by means of an election by secret ballot. WT shall accordingly direct that such an election be held. The employees eligible to vote shall be those within the appropriate unit on the,date of the Direction of Election, subject to such limitations and additions as are set forth -in the Direction; Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of The Constitution Publishing Company, Atlanta, Georgia, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. Newspaper carriers, including carriers who are also district man- agers or supervisors,' who are employed by the Company to deliver the Atlanta Constitution in Atlanta and environs, constitute a unit appropriate for the purposes of collective bargaining, within the mean- ing of Section 9 (b) of the Act. '6 See Matter of R. C A. Commvnscations, Inc and American Radio Telegraplaists' Asso- ciation, 2 N L R B. 1109; Matter of Gulf Oil Corporation and International Brotherhood of Boilermakers, Iron Shipbuilders . Welders & helpers of America . 4 N L R. B 133 ; Matter of Associated Prose and The American Neiospapcr Guild, 5 N I. I2 B 43 THE CONSTITUTION PUBLISHING COMPANY 115 DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED, that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with The Constitution Publishing Company; Atlanta, Georgia, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director of the Tenth Region, acting in this matter as agent for the National -Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all newspaper carriers, including car- riers who are also, district managers or super-isors, who are employed by the Company to deliver the Atlanta Constitution in Atlanta and environs on the date of this Direction of Election, including carriers who did not work on said date because they were ill or on vocation or whose employement was then or has since been temporarily discon- tinued, but excluding carriers whose contracts of employment have been terminated voluntarily or for cause, to determine whether or not they desire to be represented by Atlanta News Carriers and Cir- culation Employees' Union No. 445, affiliated with the International Printing Pressmen & Assistants' Union of North America, for the purposes of collective bargaining. 413602 42 - Nol 29---9