Drukker Communications, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1985

277 N.L.R.B. 418 (N.L.R.B. 1985)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drukker Communications , Inc. and its wholly owned
subsidiary The Daily Advance, Inc. and Newark
Mailers' Union Local 11, a/w International Ty-
pographical Union, AFL-CIO. Case 22-CA-
7413
13 November 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 30 September 1981 the National Labor Rela-
tions Board issued a Decision and Order in this
proceeding, finding that the Respondent had en-
gaged in certain violations of Section 8(a)(5) and
(1) of the Act.' The Respondent subsequently filed
a petition for review with the United States Court
of Appeals for the District of Columbia Circuit,
and the Board filed a cross-application for enforce-
ment of its Order. On 25 February 1983 the court
issued an opinion remanding the case to the Board
for further proceedings,2 and on 1 February 1984
the Board ordered that the proceeding be reopened
and that a hearing be held before an administrative
law judge. A hearing was conducted on 30 April
1984 before Administrative Law Judge Julius
Cohn, and on 28 September 1984 Judge Cohn
issued the attached supplemental decision. The Re-
spondent subsequently filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Respondent owns and publishes a daily
newspaper and operates facilities in Dover and
Roxbury, New Jersey.3 Pursuant to a Stipulation
for Certification Upon Consent Election, an elec-
tion was conducted in the following unit on 21
July 1974:
All circulation department employees, includ-
ing drivers, mail clerks, mailroom helpers and
district advisors, but excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
The tally was 10 votes for and 12 against the
Union, with 6 determinative challenges. After a
hearing the Board determined that five challenged
"motor route carriers," who delivered newspapers
to remote areas, were eligible employees rather
1 258 NLRB 734 (1981)
2 Drukker Communications v. NLRB, 700 F.2d 727 (D.C. Cir 1983)
3 The Respondent opened its Roxbury facility in April 1975, after the
election in this proceeding
than independent contractors.4 A revised tally
showed 15 votes for and 12 against the Union, and
the Board certified the Union on 7 September
1976.5
In its original Decision and Order, the Board
found that the Respondent violated Section 8(a)(5)
and (1) by refusing to bargain with the Union and
by implementing certain unilateral changes. The
Board found that the Respondent acted unlawfully
by unilaterally replacing its motor route carriers
with individuals termed "delivery contract hold-
ers," by unilaterally replacing its other drivers with
individuals termed "hauling contract holders," and
by unilaterally replacing its part-time district advi-
sors with full-time "district sales representatives."
The Board also concluded that the Respondent
violated the Act by unilaterally reducing the unit
work of the mail clerk, by negotiating individually
with delivery contract holders and hauling contract
holders over the extra work and compensation de-
rived from Sunday deliveries, and by negotiating
individually with hauling contract holders concern-
ing increased weekly payments. The amended com-
plaint also alleged that the Respondent unlawfully
relocated the mailroom portion of its circulation
department from Dover to Roxbury, but the Board
concluded that Section 10(b) barred that allegation.
Contrary to the Respondent's contention, the
Board found that the above changes had not ren-
dered the unit inappropriate. The Board concluded
that the delivery contract holders and hauling con-
tract holders were employees rather than independ-
ent contractors and found that the district sales
representatives were properly included in the unit.
The Board also found that the mail clerk remained
a unit employee and that the mailroom helpers also
remained unit employees even though the number
of helpers substantially increased after the Re-
spondent moved its mailroom from Dover to Rox-
bury.
In agreement with Administrative Law Judge
Herzel H. E. Plaine, the Board rejected the Re-
spondent's contention that the parties had orally
agreed to exclude the motor route carriers from
the unit at an informal conference leading to the
stipulation. In this connection, the Board did not
disturb Judge Plaine's denial of the Respondent's
request to enforce a subpoena compelling the testi-
mony of George Abrams, the Board agent who
presided over the conference.
As noted above, the District of Columbia Circuit
remanded the case to the Board for further pro-
4 The Board sustained the challenge to the sixth ballot
5 When the Union was certified, the words "at the Employer's Dover,
New Jersey facility" were added to the unit description after the words
"district advisors "
277 NLRB No. 32
DRUKKIER COMMUNICATIONS
ceedings . The remand was based primarily on the
Board's refusal to compel Abrams to testify con-
cerning the alleged oral agreement to exclude the
motor route carriers. The court stated that the tes-
timony "should have been required" in view of the
"distinctive" circumstances of this case .6 The court
noted, inter alia, that Abrams ' testimony would
have involved a "central" issue which might affect
the outcome of the election , that he would not
have testified about the agency's internal delibera-
tions , and that the issue did not involve a "fishing
expedition." 7 The court further noted that the Re-
spondent's argument that an agreement was
reached was "highly plausible," that Abrams' neu-
tral position would have lent "unique value" to his
testimony, and that the testimony sought from
Abrams concerned information which he intended
to acquire at the conference . " The court set aside
the Board's decision , noting that Abrams' testimo-
ny "alone" required a remand.9
The court also considered the other issues in the
case to avoid "a repetitive appeal." 10 In the court's
view, Section 10(b) of the Act precluded the Board
from finding that the Respondent acted unlawfully
by unilaterally replacing its motor route carriers
with delivery contract holders and its drivers with
hauling contract holders .' I The court also set aside
the Board 's finding that the Respondent's "district
advisors" were employees , 12 and it concluded that
Drukker Communications , Inc. was not jointly
liable with The Daily Advance , Inc.13 In view of
the court 's conclusions, we shall make appropriate
modifications to our Order.
The court upheld the Board 's finding that the
bargaining unit was not rendered inappropriate by
the movement of the mailroom from Dover to
Roxbury.' 4 Although the court did not set aside
the Board's finding that the delivery contract hold-
ers were employees , it instructed the Board to re.,
consider this issue in light of its more recent deci-
sion in Fort Wayne Newspapers, 263 NLRB 854
(1982).15
° 700 1F.2d at 731.
Id at 731-732
Id. at 732-733. The court also observed that "the concurrence of fac-
tors as strong as those" favoring Abrams ' testimony in this case "will
seldom occur." Id. at 734.
Id at 734
10 Id at 734.
' Id at 734-745
12 Id at 736. The court's finding in this connection would also require
a finding that the Respondent did not violate the Act by unilaterally re-
placing its district advisors with district sales representatives. We have
modified our Order accordingly.
' 3 Id at 735-736
14 Id at 737
15 Id. at 736-737.
419
The Board accepts the court's opinion as the law
of the case . We have considered this proceeding in
light of our original Decision and Order, the
court's opinion, Judge Cohn's attached supplemen-
tal decision, the Respondent's exceptions and sup-
porting brief, and the entire record. We have re-
vised our previous Decision and Order in the
manner set forth below.
1. As noted above, the Board in its original deci-
sion adopted Judge Plaine's finding that the parties
did not agree to exclude the motor route carriers
from the unit at the informal conference on 28 May
1974. Pursuant to the court's instructions, the
Board ordered that a hearing be held to allow the
testimony of Board agent Abrams, who presided
over the conference. To ensure a complete record,
the Board's Order permitted the parties to elicit the
testimony of other individuals present at the con-
ference. Abrams and the Union's attorney, Parson-
net, testified at the remand hearing.' 6 In his sup-
plemental decision Judge Cohn found , inter alia,
that Abrams was unable to state affirmatively that
the parties had reached an oral agreement, and he
recommended that the Board adhere to its original
determination.
In its exceptions the Respondent, contends that
Judge Cohn failed to consider evidence adduced at
the original hearing, and that he improperly "sum-
marized" the testimony of Abrams and Parsonnet.
Relying on Banner Bedding, Inc., 214 NLRB 1013
(1974), the Respondent renews its argument that
the parties reached an oral agreement which ren-
dered the motor route carriers ineligible to vote in
the election. We have reviewed the entire record,
and we agree with Judge Cohn that the Respond-
ent has not established that the parties orally
agreed to exclude the motor route carriers, even if
we assume , arguendo, that Banner Bedding is appli-
cable in these circumstances. 17
16 No other witnesses were called
17 In Banner Bedding, the Board reaffirmed the pi inciple that eligibility
agreements must be written, signed, and express 214 NLRB at 1013,
citing Norris-Thermador Corp, 119 NLRB 1301 (1958). However, the
Board carved out a "narrow exception" based on the particular facts of
the case The parties had orally agreed in the presence of a Board agent
that one named employee would not be eligible to vote The employee
then cast a challenged ballot, and the Board sustained the challenge. The
Board emphasized that both parties acknowledged that they had made
the oral agreement and that they would not have signed the consent-elec-
tion stipulation in the absence of the oral agreement The Board conclud-
ed that in those specific circumstances it would be "improper and inequi-
table" not to regard the oral agreement as final and binding. The Board
also concluded that it would continue to apply the rule of Norris-Therma-
dor "where there is any dispute whatsoever" whether an agreement had
been made.
In this case, the Union has never acknowledged that an oral agreement
had been reached to exclude the motor route carriers However, we need
not decide here whether the Banner Bedding exception is applicable
where the parties do not acknowledge that an oral agreement was
reached and where such an agreement is established, for example, by
Continued
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abrams testified that his recollection of the con-
ference was "somewhat hazy," and he repeatedly
indicated that he was testifying "to the best of [his]
recollection" or "to the best of [his] limited recol-
lection.""' He recalled that during the conference
he was required to do research on the eligibility of
either the motor route carriers or the youngster
carriers, but he could not specifically recall which
group had been at issue in his research.19 At one
point, he testified that he "believe[d]," but was
"not certain," that the motor route carriers had
been the subject of his research. 2 ° According to
Abrams, he concluded from his research that the
group at issue should be excluded, and he stated to
the best of his recollection that the parties had then
agreed to exclude that group, "whatever it was."
To the best of his "limited recollection," Abrams
also testified that he "believe[d]," but could not
state with "absolute certainty," that the parties had
discussed whether the motor route carriers were
employees or independent contractors.2I He fur-
ther stated his belief that the parties would have
discussed whether the motor route carriers shared
a community of interest with other employees.
Parsonnet testified that the parties had agreed to
exclude the youngster carriers, or "newspaper de-
livery boys." According to Parsonnet, Abrams did
credited testimony Even if we assume , arguendo , that an oral agreement
may be established by evidence other than the admissions of both parties,
we conclude for the reasons stated herein that the record does not estab-
lish an agreement to exclude motor route carriers.
i3 The Respondent contends that the judge erred by refusing to permit
Abrams to examine a document in order to refresh his recollection The
document was a letter from Hamburger to the Regional Director for
Region 22, dated 26 June 1974. The letter sets forth the Respondent's po-
sition that at the informal conference the parties "agreed that the so
called Motor Route Drivers were independent contractors who were not
employees within the meaning of the Act " The letter states that the
"Motor Route Drivers" were not included on the Excelsior list, and as-
serts that the parties agreed that all independent contractors should be
excluded
It is widely recognized that any writing or other object may be used to
refresh a witness' recollection. 3 Wigmore, Evidence § 758 (Chadbourn
rev 1970); McCormick, Evidence § 9 at 16-17 (2d ed 1972); United States
v Baratta, 397 F 2d 215, 222 (2d Cir 1968). See also Spartan Plastics, 269
NLRB 546 fn. 2 (1984), J. H Rutter-Rex Mfg Co., 206 NLRB 656 (1973)
However , the authorities also recognize that a judge may exercise discre-
tion in applying this general rule and may decline to permit the use of the
aid to recollection where, for example, "the danger of undue suggestion"
outweighs the probable value. McCormick, supra, § 9 at 17. See also 3
Wigmore, supra § 765; Fed R.Evid 611(a), United States v. Baratta, supra
at 222 Whether it is proper to use any given document will depend on
the circumstances 3 Wigmore , supra § 758 In this case the Respondent's
lawyer sought to use a document which he himself had prepared and
which merely set forth the Respondent 's position concerning the alleged
agreement, which position was already well known to all the parties. We
see no reason to disturb the judge 's decision in the exercise of his discre-
tion not to permit Abrams to examine'the document
1s Both groups "may" have been discussed , according to Abrams, but
his research focused on only one of the groups
2° Abrams also testified that his belief that he had researched the
motor route earners was "theoretical."
21 According to Abrams' "limited recollection," the Respondent con-
tended that the motor route carriers were independent contractors, but
he had no recollection of what the Respondent had said concerning their
status.
some research to determine whether the youngster
carriers could be excluded by agreement of the
parties. He did not recall whether Abrams had re-
searched the issue of the eligibility of the motor
route carriers. He testified that he did not recall
the use of the term "motor, route carrier" at the
conference and stated that "as far as we knew, they
were all drivers."
In the original hearing, Parsonnet testified that
there had been no discussion of motor route carri-
ers and that he had never agreed to their exclusion.
The Respondent's attorney, Hamburger, testified
that he had asserted that the motor route carriers
were independent contractors and that Parsonnet
responded, "In that case, we are not interested in
them." Judge Plaine did not credit Hamburger's
testimony, and he found that "[o]n the question of
credibility, there is good reason to believe Parson-
net that there was no such oral agreement."22 The
Board adopted Judge Plaine's findings, and we find
that the evidence presented at the remand hearing
provides no basis for disturbing his credibility reso-
lutions.23 We note especially that Abrams could
not testify with certainty that the parties orally
agreed to exclude the motor route carriers. We
also note that Parsonnet testified that there had
been an agreement to exclude the youngster carri-
ers-a statement consistent with Abrams' recollec-
tion that the parties may have agreed to exclude
the youngster carriers. In view of the above, we
adhere to our previous finding that the parties did
not reach an oral agreement to exclude the motor
route carriers from the unit.24
22 258 NLRB at 742.
23 In making his credibility determination in the original proceeding,
Judge Plaine found it unlikely that Parsonnet "brushed away what was
then one-third of the Union's supporters with a 'we are not interested in
them' response ... Id at 742. The court questioned this portion of
the rationale , 700 F 2d at 732, and we do not rely on it in reaffirming our
findings.
24 Relying on Buckley Southland Oil, 210 NLRB 1060 (1974), the Re-
spondent also contends that the parties did not reach a "meeting of the
minds" concerning the eligibility of the motor route carriers, even if
there were no specific agreement to exclude them In Buckley, the unit
included all permanent servicemen, drivers, and mechanics, and the bal-
lots of eight permanent seasonal drivers were challenged at the election.
The employer contended that before signing the stipulation the parties
had agreed that all seasonal employees would be excluded, while the
union stated that its understanding had been that all permanent seasonal
drivers would be included . The Board stated that in stipulated election
cases its function was to ascertain the parties' intent, and found on the
special facts of that case that it could not ascertain the parties" intent be-
cause they had not reached a "meeting of the minds " as to the composi-
tion of the unit The Board noted the parties ' different interpretation of
the stipulation, and it noted their separate agreement that if a named sea-
sonal employee attempted to vote, his ballot would have been challenged
and would not have been counted "pending post election procedures."
210 NLRB at 1061 The Board cited the latter agreement as evidence
that the parties had not been under the same impression of the status of
their stipulation , and the Board voided the election.
Continued
DRUKKIER COMMUNICATIONS 421
2. As noted above, the court also directed the
Board to reconsider the issue of whether the Re-
spondent's delivery contract holders are employees
or independent contractors. We have carefully re-
viewed this issue in light of Fort Wayne Newspa-
pers, 263 NLRB 854 (1982), and Thomson Newspa-
pers, 273 NLRB 350 (1984),25 and we conclude
that the delivery contract holders are independent
contractors.
The record discloses that the Respondent has
reached agreements with 113 delivery contract hold-
ers to deliver individual newspapers and bundles of
newspapers to subscribers in remote areas. The
agreements are oral and terminable at will. The Re-
spondent does not furnish vehicles for the deliv-
eries, and it is the delivery contract holder's re-
sponsibility to obtain a vehicle and pay for the ex-
penses incurred in its use. The vehicles do not con-
tain the Respondent's insignia, and the Respondent
does not require the delivery contract holders to
obtain insurance.
A delivery contract holder communicates with
the Respondent through the contract holder coor•.
dinator, one of the Respondent's supervisors. The
delivery contract holder may consult with the con-
tract holder coordinator, but they do not meet on a
regular basis. The Respondent does not require de-
livery contract holders to submit reports concern-
ing the time and mileage required to complete their
deliveries.
The delivery contract holder determines when
and where to pick up the papers. Although most
choose to make pickups at the Respondent's Rox-
bury facility, the Respondent ordinarily permits
pickups to be made at other locations requested by
the delivery contract holders. The delivery con-
tract holder also determines the order in which de-
liveries will be made and the number of papers to
We do not find on the record before us that the parties failed to reach
a meeting of the minds We note that in the original proceeding the
Board adopted Judge Plaine's finding that there was no
credible basis for concluding that the unit as described in the
preelection stipulation was subject to an oral understanding, or even
misunderstanding, that a class of drivers was to be excluded from the
unit. On the contrary , the written stipulation concerning the unit
clearly embodied the intendment of the parties that the unit was to
be a unit of all employees of the circulation department except the
categories expressly eliminated . . . . [Emphasis added . 258 NLRB
at 742.]
Judge Flame therefore relied on his credibility resolutions to find that
there was no "misunderstanding" concerning the motor route carriers,
and that the parties ' intent to include them was ascertainable . The Board
adopted his findings and, in view of Abrams' limited recollection and
Parsonnet's testimony , we find no evidence at the remand hearing to indi-
cate that there had been a misunderstanding about the eligibility of the
motor route tamers . Consequently , we cannot conclude that the parties
failed to reach a meeting of minds.
25 The court instructed the Board to reconsider the issue in light of
Fort Wayne, which issued after the Board's original decision in this pro-
ceeding We find it consistent with the spirit of the court's opinion also to
consider the issue in light of Thomson ?Newspapers, which issued after the
court's opinion
be contained in each bundle. If he does not wish to
make the deliveries himself, he may hire assistants
to perform the work without the Respondent's ap-
proval.26 If a delivery contract holder is unable to
make the deliveries on a given day, due to illness
or another reason, it is his responsibility to obtain a
replacement to perform the work. The Respondent
will not obtain a replacement even if requested to
do so by the delivery contract holder.27
A delivery contract holder may refuse to service
a subscriber if, for example, the subscriber has
failed to pay his bills, and delivery contract holders
may decide to shift customers among themselves
without the Respondent's approval. When the Re-
spondent began issuing a new Sunday edition in
March 1978, some delivery contract holders re-
fused to agree to make the deliveries. Their refusal
did not affect their status as delivery contract hold-
ers, and the Respondent simply contracted with
other individuals to make deliveries on Sundays.
The Respondent does not withhold taxes for the
delivery contract holders and does not provide
them with any of the fringe benefits enjoyed by its
employees. Delivery contract holders may hold
other jobs, and they are free to deliver other news-
papers or commodities in addition to the Respond-
ent's newspapers. The Respondent's circulation di-
rector, Van Dalen, testified that he was aware of
two delivery contract holders who held other jobs,
one of whom delivered another newspaper.28
The delivery contract holders purchase newspa-
pers from the Respondent and resell them to sub-
scribers. The Respondent negotiates the wholesale
purchase price with each individual delivery con-
tract holder, a price which varies from I to 12
cents for each 15-cent daily paper and from 1 to 19
cents for each 25-cent Sunday paper.29 Van Dalen
testified that delivery contract holders may add to
the subscription price a service charge for delivery
expenses. The Respondent sets no limits on the
amount of the service charge, and Van Dalen testi-
fied that he was aware of two delivery contract
holders who charged more than the subscription
26 The Respondent's circulation director , Van Darien , testified that he
does not know who makes the actual deliveries , and he is aware of in-
stances in which individuals other than the delivery contract holders
have picked up the newspapers.
27 However, the Respondent would obtain a replacement where a de-
livery contract holder suffers from an extended illness and refuses to
obtain a replacement himself
28 Van Dalen testified that he did not know whether other delivery
contract holders held other jobs.
29 The Respondent charges the delivery contract holder at least I cent
for each newspaper. If it made no charge , it would not be able to claim
those deliveries as paid circulation for the audit bureau of circulation
Claiming deliveries as paid circulation assists the Respondent in attracting
advertisers.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
price.30 He also noted that if the sole source of a
delivery contract holder's profit were the differ-
ence between the purchase and resale prices, some
routes would be unprofitable even if the Respond-
ent charged a purchase price of only 1 cent per
copy. Consequently, the Respondent provides
"most" delivery contract holders with a weekly sti-
pend to ensure that their routes are profitable. 3 a
Van Dalen indicated that "one or two" of the 13
delivery contract holders do not receive the sti-
pend.
The delivery contract holders bill customers on
their own and may extend credit to customers if
they choose to do so. The record also establishes
that the Respondent does not accept returns of un-
delivered newspapers. Consequently, a delivery
contract holder absorbs the loss if he orders more
newspapers than he needs.
When deciding whether to contract for the serv-
ices of a delivery contract holder, the Respondent
seeks reasonable assurances that the individual is
able to make the deliveries. The Respondent re-
quires that the deliveries be made at an hour which
is reasonable for the enjoyment of an evening
newspaper . If the Respondent receives a customer
complaint , it attaches a written form to the deliv-
ery contract holder's bundle of newspapers, and
subsequently the contract holder coordinator fol-
lows up with the delivery contract holder to see
whether the complaint has been resolved. The Re-
spondent requests that delivery contract holders
submit customer lists twice a year,32 but it takes no
action if the lists are not submitted. When a deliv-
ery contract holder terminates his agreement with
the Respondent, he does not sell the Respondent a
proprietary interest in his customer list. Delivery
contract holders are encouraged to solicit new sub-
scriptions, and Van Dalen testified that there is an
"understanding" that delivery contract holders will
accept new subscriptions. The Respondent also
provides the delivery contract holders with bags to
protect the newspapers in inclement weather.
When a delivery contract holder seeks to termi-
nate his agreement with the Respondent, it is his
responsibility to find and train a replacement. If he
does not do so, the Respondent's contract holder
coordinator will attempt to find a new individual
through newspaper advertising or other methods.
30 Van Dalen testified that he was unaware of how many others added
a service charge At one point , he testified that it was "not uncommon"
for delivery contract holders to add a service charge, but he later testi-
fied that the addition of a service charge was a "common practice."
3i As an example, Van Dalen noted that one delivery contract holder
delivers 30-35 papers at a charge to him of 1 cent per paper, and receives
a weekly stipend of $27. The Respondent maintains a separate payroll for
the stipends
32 At one point Van Dalen also testified that the Respondent "re-
quires" the submission of these lists.
If the contract holder coordinator is successful, he
will train the new delivery contract holder by ac-
companying him on his route for 2 or 3 days.33
As noted in both- Fort Wayne Newspapers, 263
NLRB 854 (1982), and Thomson Newspapers, supra,
the Board applies the common law "right of con-
trol" test in determining the status of individuals al-
leged to be independent contractors. If the person
for whom services are performed retains the right
to control the manner and means by which the re-
sults are to be accomplished, the person who per-
forms the services is an employee. If the results
alone are controlled, the person performing the
services is an independent contractor. The Board's
determination of an individual's status turns on the
particular facts of each case.
In Fort Wayne the employer published a newspa-
per, and the distributors at issue were responsible
for delivering papers to dealers and to coin-operat-
ed newsracks. The Board's conclusion that the dis-
tributors were independent contractors was based
on circumstances also present in this case. Thus,
the Board emphasized that the distributors could
employ helpers and substitutes and make all deci-
sions concerning the hiring, firing, and compensa-
tion of those helpers and substitutes. The distribu-
tors were free to hold other jobs, and their day-to-
day performance was not regularly supervised.
They were responsible for providing and maintain-
ing their own vehicles, and the employer did not
withhold taxes or provide the distributors with any
of the benefits enjoyed by its employees. The dis-
tributors also retained some opportunity for profit
on the papers sold from newsracks. They pur-
chased those papers from the employer, and the
Board noted that their income, to a large extent,
was based on the difference between the purchase
price for the papers and the resale price plus oper-
ating expenses.34 The Board's finding that the dis-
tributors were independent contractors was not
precluded by the fact that the employer, like the
Respondent here, paid a weekly sum of money to
the distributors in addition to the money they re-
ceived from the newsracks.
We also note that in this case there is evidence
which suggests even more clearly than in Fort
Wayne that a finding of independent contractor
status is appropriate. In this case, the delivery con-
tract holders purchase from the Respondent and
resell to subscribers all of the newspapers they de-
liver, and consequently their entire routes provide
33 Where a delivery contract holder finds his own replacement, how-
ever, he will train that replacement.
s4 The Board also noted that the distributors could maximize their
profits by deciding how many papers to buy from the employer and how
many papers to place in each rack
DRUKKER COMMUNICATIONS 423
an opportunity for profit. In Fort Wayne, the dis-
tributors purchased and resold only those papers
which they delivered to the newsracks . The Board
noted that the distributors had no opportunity to
profit from the delivery of papers to dealers be-
cause the distributors did not buy and sell those
papers . Rather, the dealers made their payments di-
rectly to the employer . In addition , the delivery
contract holders may alter the price of the newspa-
pers by adding a service charge to the subscription
price. In Fort Wayne , the employer controlled the
wholesale and retail prices of the papers sold from
newsracks and, as noted above, the payments from
dealers went directly to the employer without
being handled by the distributors.
The Board in Fort Wayne also observed that the
employer minimized entrepreneurial risk by allow-
ing the distributors to return unsold papers for
credit. In this case, the Respondent does not accept
returns of undelivered newspapers , and a delivery
contract holder must absorb the loss if he orders
more newspapers than he needs. We also note that
the distributors in Fort Wayne displayed the em-
ployer 's insignia on their vehicles , while the deliv-
ery contract holders do not do so.
There are additional circumstances favoring a
finding of independent contractor status in this
case. If a subscriber has difficulty paying his bills,
the delivery contract holder may either extend
credit or refuse to provide further service. Deliv-
ery contract holders may shift subscribers among
themselves without the Respondent 's approval. It is
also the delivery contract holder's responsibility to
obtain a replacement when unable to work, and the
Respondent normally will not obtain a replacement
even if requested to do so. The delivery contract
holder also determines where to pick up the news-
papers, and the Respondent ordinarily permits
pickups to be made at the location preferred by the
delivery contract holder.
We recognize that there was evidence indicating
independent contractor status in Fort Wayne which
is not, present here. Thus, the employers and the
distributors in Fort Wayne were parties to written
contracts which referred to the distributors as
"contractors" and which required the distributors
to carry insurance and hold the employer harmless
from liability. However, in view of the extensive si-
miilarities and other evidence discussed above, we
conclude that the absence of such evidence does
not preclude a finding that the delivery contract
holders are independent contractors.
We also find that our conclusion is supported by
Thomson Newspapers, supra. In that case, the 10
motor route drivers at issue delivered bundles of
papers, placed papers in coin-operated newsracks,
and made deliveries to individual subscribers. The
Board found that the motor route drivers were in-
dependent contractors based on several circum-
stances also present in this case . The Board noted
that the drivers provided their own delivery vehi-
cles and were not required to display the employ-
er's insignia. The drivers were free to hire full-time
substitutes without the employer 's approval, and
they were required to obtain part-time substitutes if
unable to make the deliveries on any given day.
They were permitted to hold other jobs and make
deliveries for clients other than the employer while
on their routes . The motor route drivers deter-
mined the order of delivery , and the employer did
not supervise or monitor their daily performance.
The employer did not withhold taxes or provide
the drivers with any of the fringe benefits available
to its employees, and the drivers were not required
to maintain any records for the employer.
The contrasts between this case and Thomson
Newspapers also suggest that the delivery contract
holders are independent contractors . In Thomson
Newspapers, the Board found that the drivers did
not purchase the papers from the employer and
therefore did not assume the entrepreneurial risk
associated with trying to make a profit by reselling
them . Rather , the drivers were paid a flat rate
based on time , mileage, and the number of papers
delivered . As noted above , the delivery contract
holders purchase the papers from the Respondent,
resell them to subscribers, and may add a service
charge to the subscription price . Although the de-
livery contract holders also receive a weekly sti-
pend from the Respondent, we think it clear that
their entrepreneurial risk is greater than that of the
drivers in Thomson Newspapers . In contrast to driv-
ers in that case , delivery contract holders may
extend credit to customers , refuse to service cus-
tomers, or shift customers among themselves with-
out the Respondent's approval.
As in Fort Wayne and Thomson Newspapers, we
recognize that there are circumstances in this case
which are more commonly found in employer-em-
ployee relationships . Thus, the Respondent may
terminate the agreements at will , and the delivery
contract holders do not sell the Respondent a pro-
prietary interest in their customer lists upon the
termination of their agreements. The Respondent at
least requests that the delivery contract holders
submit customer lists twice a year , requires that de-
liveries be made at a reasonable hour, and provides
bags to protect the newspapers in inclement weath-
er. The Respondent retains partial control over the
compensation of the delivery contract holders by
providing them with a weekly stipend to ensure
that their routes are profitable . However, after re-
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considering this issue in light of Fort Wayne and
Thomson Newspapers, we find that this evidence is
outweighed by the evidence tending to establish
that the delivery contract holders are independent
contractors. Consequently, we shall exclude the de-
livery contract holders from the unit.35
CONCLUSIONS OF LAW
1. The following employees constitute a unit ap-
propriate for collective bargaining:
All circulation department employees at the
Employer's facilities in Dover and Roxbury,
New Jersey, including drivers, mail clerks, and
mailroom helpers, but excluding all district
sales representatives, delivery contract holders,
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act. 3 6
2. The Respondent, the Daily Advance, Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. The Union, Newark Mailers' Union Local 11,
a/w International Typographical Union, AFL-
se We decide only that the delivery contract holders are independent
contractors , and in our view we are not presented with the question of
whether their predecessors, the motor route carriers , were employees or
independent contractors . The Board has previously determined that the
motor route carriers were employees , and the court neither disturbed this
finding nor directed the Board to reconsider the issue . As we read its
opinion, the court directed the Board to consider whether there was an
oral agreement to exclude the motor route carriers , and to reconsider
whether the delivery contract holders were employees or independent
contractors
Moreover, we note that the delivery contract holders and the motor
route carriers performed their work in different circumstances Unlike the
delivery contract holders, the motor route carriers were paid a rate pre-
computed on the basis of time and mileage They did not purchase and
resell the papers, and they were not able to add a service charge to the
subscription price The motor route carriers, unlike the delivery contract
holders, were also required to deliver the papers themselves and could
not delegate that task to other individuals . The Respondent 's district
manager substituted for ill motor route carriers, but the delivery contract
holder is responsible for obtaining his own temporary substitute. In most
circumstances , the Respondent does not obtain a substitute even if re-
quested to do so by the delivery contract holder The delivery contract
holders bill customers on their own , but the Respondent billed customers
serviced by the motor route carriers.
96 We have modified the unit description to reflect the court's finding
that the district advisors , who were originally included, were supervisors.
We have omitted the district advisors from the included classifications,
and we have expressly excluded their successors, the district representa-
tives, who perform the same tasks as the district advisors. We have also
expressly excluded the delivery contract holders, but we have retained
the term "drivers" among the included classifications because the Re-
spondent's hauling contract holders are still within the unit In view of
the partial transfer of the circulation department from Dover to Roxbury,
we have also added the Roxbury facility to the unit description
Under the circumstances , we also find that the above -described unit is
appropriate-a finding we consider consistent with the court ' s opinion.
We note that the court did not set aside the Board's bargaining order
even though it found that the district advisors should not have been in-
cluded in the unit The court also found that the movement of the mail-
room portion of the circulation department from Dover to Roxbury did
not render the bargaining unit inappropriate . In addition , the court did
not indicate that the appropriateness of the bargaining unit was contin-
gent on the result of the Board's reconsideration of the status of the de-
livery contract holders
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
4. By refusing to bargain with the Union as the
certified collective-bargaining representative of the
employees in the appropriate unit, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
5. By unilaterally reducing the unit work of the
mail clerk, and by negotiating individually with
hauling contract holders concerning increased
weekly payments and the extra work and compen-
sation involved with Sunday deliveries, the Re-
spondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the
Act.3 7
REMEDY
Having found that the Respondent has engaged
in certain violations of Section 8(a)(5) and (1) of
the Act, we shall order that it cease and desist and
that it take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, The Daily Advance, Inc., Dover
and Roxbury, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing, on request, to bargain with the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the following appro-
priate unit, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment:
All circulation department employees at our
facilities in Dover and Roxbury, New Jersey,
including drivers, mail clerks, and mailroom
helpers, but excluding all district sales repre-
sentatives, delivery contract holders, office
clerical employees, professional employees,
guards and supervisors as defined in the Na-
tional Labor Relations Act.
(b) Unilaterally reducing the unit work of the
mail clerk, and negotiating individually with haul-
ing contract holders concerning increased weekly
payments and the extra work and compensation de-
rived from Sunday deliveries.
37 We have modified our conclusions of law to reflect the court's con-
clusions and our finding that the delivery contract holders are independ-
ent contractors
DRUKKER COMMUNICATIONS 425
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
elusive collective-bargaining representative of the
employees in the appropriate unit, with respect to
rates of pay, wages, hours, and other terms and
conditions of employment, and embody any agree-
ment reached in a written and signed contract.
i(b) On request, bargain with the Union over the
reduction of the unit work. of the mail clerk, and
over the hauling contract holders' increased
weekly payments and their extra work and com-
pensation derived from Sunday deliveries.
(c) Post at its facilities in Dover and Roxbury,
New Jersey, copies of the attached notice marked
"Appendix."38 Copies of the notice, on forms pro-
vided by the Regional Director for Region 22,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arilly posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
All circulation department employees at our
facilities in Dover and Roxbury, New Jersey,
including drivers, mail clerks, and mailroom
helpers, but excluding all district sales repre-
sentatives , delivery contract holders„ office
clerical employees, professional employees,
guards and supervisors as defined in the Na-
tional Labor Relations Act.
WE WILL NOT unilaterally reduce the unit work
of the mail clerk, and WE WILL NOT negotiate indi-
vidually with hauling contract holders concerning
increased weekly payments and the extra work and
compensation derived from Sunday deliveries.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL, on request, bargain with the above
Union as the exclusive collective-bargaining ; repre-
sentative of the employees in the above unit, with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and WE WILL
embody any agreement reached in a written and
signed contract.
WE WILL, on request, bargain with the above
Union over the reduction of the unit work of the
mail clerk, and over the hauling contract holders'
increased weekly payments and their extra work
and compensation derived from Sunday deliveries.
THE DAILY ADVANCE, INC.
38 If 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse, on request, to bargain with
Newark Mailers' Union Local 11, a/w Internation-
al Typographical Union, A]FL-CIO, as the exclu-
sive collective-bargaining representative of the em-
ployees in the following appropriate unit, with re-
spect to rates of pay, wages, hours, and other terms
and conditions of employment:
Bernard S. Mintz, Esq., for the General Counsel.
Henry I. Hamburger, Esq., of Leonia, New Jersey, for the
Respondent.
Victor J. Parsonnet, Esq. (Reitman, Parsonnet, Duggan &
Pykin), of Newark, New Jersey, for the Charging
Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge. On Septem-
ber 30, 1981, the Board issued a Decision and Order in
this proceeding (258 NLRB 734 (1981)), finding that Re-
spondent had violated Section 8(a)(1) and (5) of the Act
by refusing to bargain with the Union and by implement-
ing certain unilateral changes. Thereafter on February
25, 1983, the United States Court of Appeals for the Dis-
trict of Columbia Circuit granted Respondent's petition
for review and remanded the case to the Board. (700
F.2d 727 (D.C. Cir. (1983).) The court of appeals had de-
termined that there was an issue of whether Respondent
and the Union had orally agreed at a preelection confer-
ence to exclude motor route carriers from the unit. It
concluded that the Board had erred in failing to issue a
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subpoena to require the testimony of the Board agent
who conducted this conference.
Thereafter, by Order dated February 1, 1984, the
Board ordered this proceeding reopened and that a hear-
ing be held to take evidence pursuant to the remand of
the court. I, having been designated by the chief admin-
istrative law judge, conducted a hearing on April 30,
1984, at Newark, New Jersey, for the purpose of taking
evidence in accordance with the court's remand. All par-
ties were given full opportunity to submit evidence rele-
vant to the Board 's order and remand . Following the
close of the hearing, the General Counsel and Respond-
ent submitted briefs which have been considered.
On the entire record of the remanded hearing and
from my observation of the witnesses , I make the follow-
ing
ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS
At the hearing, George Abrams appeared on behalf of
Respondent pursuant to a subpoena . Abrams had been a
Board attorney from 1973 until 1979 and he was the as-
signed agent who , in connection with a representation
petition filed by the Charging Party herein, conducted
and participated in a conference which culminated in the
execution of a Stipulation for Certification Upon Consent
Election. At the outset and throughout his examination,
Abrams stated that his recollection of what had occurred
at this representation case conference, 10 years before his
appearance on this remand, was very hazy. He indicated
that he had been furnished by Respondent ' s counsel
access to some of the formal documents that were part
of the record in this proceeding , and this somewhat as-
sisted his memory.
The sum total of Abrams' testimony is to the effect
that at the conference the parties were negotiating and
there were two subjects discussed which are not specifi-
cally referred to in the stipulation. He believed that these
discussions concern (1) a delivery group, presumably
young people who deliver papers, and (2) the motor
route carriers. He believed that agreement was reached
on one of these groups but he does not know which. He
did recollect leaving the conference to do some research
as to whether a certain group could or could not be
properly included in the unit, but again does not recall
which group was involved. Parenthetically, it may be
noted that Abrams said that he would have made notes
as to this matter, but unfortunately the files were de-
stroyed because of the passage of time. This is a summa-
ry of Abrams' testimony at the hearing which bears on
the issue at hand.
Victor J. Parsonnet was called as a witness by the
General Counsel and he stated that during the course of
the conference there was some question as to the inclu-
sion of newspaper delivery boys in the unit As the Union
had no showing of interest among the delivery boys,
both the Company and the Union agreed that they
should be excluded from the unit. Parsonnet testified that
Abrams had a problem as to, whether he could have
properly excluded the newspaper delivery boys from the
unit, apart from any agreement of the parties, and he did
some research on that point. Parsonnet further stated
that he did not recall any research being done on an
issue concerning motor route carriers because he did not
remember the use of that term at the confrence. As far as
he knew, they were all drivers. Finally Parsonnet, on
cross-examination , testified that the authorization cards
just contained the term "driver," and that the phrase
"motor route carrier" was not used at all.
The Board , in its remand , stated its intention "to de-
velop a complete record concerning the issue being liti-
gated." It noted that other individuals on behalf of both
Respondent or the Union were present at the conference,
and therefore its order would not preclude parties from
presenting other individuals as witnesses . Nevertheless
no other witness was called by any of the parties at the
hearing on the remand.
Consequently on the basis of the record and the testi-
mony discussed above, I find that Respondent has not es-
tablished its contention that it had agreed with the
Union, at the representation case conference, that motor
route carriers were to be excluded from the unit. Clearly
Abrams' recollection has been dimmed over the period
of 10 years subsequent to that conference, and he was
unable affirmatively to state that any such agreement
was reached in his presence.
It has long been established that an agreement with re-
spect to eligibility must be in writing and signed by the
parties. Norris-Thermador, 119 NLRB 1301 (1958). A rec-
ognized exception to that rule is set forth in Banner Bed-
ding, Inc., 214 NLRB 1013 (1974), which would give
effect to an oral agreement as to eligibility as final and
binding if both parties acknowledged the agreement and
if it served as a "critical predicate" to a consent election.
In the instant case both parties are not acknowledging
such agreement, nor has Respondent been able to estab-
lish one.
Accordingly I recommend that the Board adhere to its
original determination and decision in this proceeding.'
1 It is noted that the Board has ordered that the provisions of Sec
102 46 of the Board 's Rules are applicable to this supplemental decision.