The Dispatch Printing Co, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1951

93 N.L.R.B. 1282 (N.L.R.B. 1951)

1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
justify the expansion. However,..the Employer admits that even if
it should find ore, the classifications of the employees would not change
because of the expansion but that merely the number of employees in
each of its categories would be enlarged. We find no merit in the
Intervenor's contention for the reason that there is at present a repre-
sentative group of employees in the plant .3 In view of the forego-
ing, we shall direct an immediate election among the employees in
the unit heretofore found appropriate.
[Text of Direction of Election omitted from publication in this
volume.]
3 Westinghouse Electric Corporation , supra.
THE DISPATCH PRINTING COMPANY, INCORPORATED , OHIO STATE
JOURNAL DIVISION and COLUMBUS NEWSPAPER GUILD , AFFILIATED
WITH AMERICAN NEWSPAPER GUILD, CIO, PETITIONER. Case No.
9-RC-868. April 9,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Seymour Goldstein,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Houston and
Reynolds].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of all employees in the
circulation department of the Employer's Ohio State Journal Divi-
sion, excluding mailing room employees, truck drivers, city green
home delivery men-part-time, carriers, and supervisors. The Em-
ployer generally agrees with the Petitioner's unit contention, except
that it would exclude also the employees discussed hereinafter, whom
the Petitioner would include.
93 NLRB No. 215.
THE DISPATCH PRINTING COMPANY, INCORPORATED 1283
The Employer., publishes four newspapers in-,Columbus, Ohio, in-
cluding the Ohio State Journal, whose circulation department' is
alone involved herein. The circulation department is engaged in the
sale and distribution of, and collection for, the Journal, which is pub-
lished in morning and evening editions. The evening edition is known
as the "green" edition.
The parties agree to the inclusion in the unit of city district men-
morning, city district men-green , State road men, and downtown
street supply, men. These employees deliver bundles of papers to
dealers, distributors, and sellers , make collections, handle complaints,
and procure carriers and sellers. They are all paid a weekly salary.
Those of them who use their own cars are also paid a mileage rate for
that use.
Relief Downtown Street Supply Man
The Employer would exclude this individual because he is a mail-
ing room employee who performs the duties of a downtown street
supply man for only 2 days per week. Because this employee regu-
larly spends a substantial part of his time doing work identical with
that of employees who are in the unit, we shall include him, but only
for the purpose of collective bargaining in relation to his work as
-downstown street supply man.2
Alleged Independent Contractors
(a) The Employer would exclude, as independent contractors, city
green district drivers, suburban route operators, and city independent
haulers. '
City green district drivers work for 2 hours each weekday evening
delivering bundles of newspapers to carriers, sellers, and newsstands,
using their own cars for this purpose. They make no collections, keep
no records, and make no reports. They are given their orders and are
supervised by the "green" city sales manager. The drivers exercise no
independent judgment as to where or how many papers are to be de-
livered, nor as to the time when they shall be delivered.
In seeking employment as a city green district driver an applicant
must fill out the Employer's customary employment application form.
If he is hired, he works under an oral agreement terminable at any
time. The Employer "owns" the routes assigned to the drivers, so
that, although the drivers may employ substitutes when they cannot
I This department also serves the Columbus Star , a weekly paper published by the
Employer.
2 Delaware Broadcasting Company, 82 NLRB 727. As, however , the relief downtown
street supply man spends less than half his time in such work , we find that he is not
eligible to vote in the election directed herein.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
themselves deliver papers, they may not sell their routes. City green
district drivers, however, are not carried on the Employer's payroll.
They are paid a flat rate per week by expense checks from which no
income, social security, or unemployment compensation taxes are
deducted.
(b) Using their own cars the suburban route operators deliver sin-
gle'copies of the paper to customers in the rural areas surrounding the
city of Columbus, Ohio, collect from the customers, handle complaints,
and make reports to the Employer. Although new customers fre-
quently subscribe to the paper directly through the circulation depart-
ment office, which then notifies the operators concerned, the operators
themselves also promote the sale of the paper. In addition to the
above duties which are all related to the operators' primary job of dis-
tributing single copies, the operators deliver bundles of papers to car-
riers, sellers, and newsstands located on their routes. They have no
responsibility for collection or other matters concerning these bulk
deliveries, nor are they paid for delivering bundles.
Suburban route operators work under an oral agreement with the
Employer, terminable at any time. Daily, they are sent lists of new
customers and of orders to stop delivery, and notices of complaints
received by the Employer. If suburban route operators wish to take
time off, they must employ and pay their own substitutes; if, however,
they cannot work because of illness, the Employer sends a substitute
to whom the operator must pay mileage. The Employer "owns" the
routes and the lists of subscribers.
Suburban route operators buy the papers at an agreed rate below
the selling price to customers. The difference constitutes their earn-
ings. The Employer guarantees them a minimum return equivalent
to 10 cents per route mile. They are not carried on the Employer's
payroll, but are paid by expense check, from which no payroll deduc-
tions are made.
(c) There are two city independent haulers, each of whom owns his
own truck and engages in a general trucking business, hauling such
things as ashes and chickens for customers other than the Employer
herein. For the Employer, they haul bundles of morning papers, de-
livering them to carriers, sellers, and newsstands. One of them spends
4 hours each weekday in delivering papers, and the other about 20
hours per week in these duties. The latter also hauls ashes and com-
ics for the Employer's business department. Neither of these men.
has any duties of collection or record keeping in connection with his
delivery work for the circulation department. The two haulers are
not carried on the Employer's payroll; they are paid by the job by
expense check from which no deductions are made.
THE DISPATCH PRINTING COMPANY, INCORPORATED 1285
As stated above, the Employer contends that the city green district
drivers, suburban route operators, and city independent haulers are
independent contractors. The Act specifically excludes independent
contractors from the category of "employees." The legislative his-
tory of the Act shows that Congress intended that the Board recog-
nize as employees those who "work for wages or salaries under direct
supervision,"' and as independent contractors, those who "undertake
to do a job for a price, decide how the work will be done, usually hire
others to do the work, and depend for their income not upon wages,
but upon the difference between what they pay for goods, materials,
and labor and what they receive for the end result, that is, upon
profit." 3
Applying this standard, we find that the city green district drivers
are "employees," but that the city independent haulers and the sub-
urban route operators are independent contractors. The haulers are
engaged in the trucking business, the Employer being only one of
their several customers. They rather clearly appear to be small, but
independent businessmen. The suburban route operators do the same
work and have the same relation to the Employer as the carriers, who
are admittedly independent contractors. The only differences be-
tween the two categories is that the suburban route operators are adults
who drive automobiles, whereas the carriers are boys who walk or ride
bicycles.
The case of the city green district drivers is different. They clearly
appear to be regular part-time' employees rather than independent
businessmen.4 Accordingly, we shall include the city green district
drivers in the unit, but exclude therefrom the city independent haulers
and the suburban route operators.
Clerical Employees
The Petitioner would include , and the Employer exclude , general
office employees 5 in the circulation department and the auditor.
The general office employees work in the office of the circulation de-
partment under the supervision of the department 's office manager and
the auditor , performing the customary duties of office clericals. They
work for the most part for the circulation department , but a portion
of their time is spent in work for other departments such as the busi-
ness and editorial departments. In all its departments the Employer
s Hearst Consolidated Publications , Inc., 83 NLRB 41, 43; H. R. Rep. No. 245, 80th
Cong , 1st Sess, p. 18 (1947).
4 Member Reynolds would find that the city green district drivers are also independent
contractors. He can find no valid basis for distinguishing them and the city independent
haulers and suburban route operators.
5In this group are three private secretaries who the Employer contends are confidential
employees . In view of our exclusion of all the office employees from the unit, we find
it unneceVary to determine the status of the secretaries.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employs about 50 office employees, who have the same wage, hour, and
working conditions. There is some interchange of clerical-employees
between the departments. In view of these facts, we find that the in-
terests of the circulation department clerical employees lie with those
of other clericals, rather than with those of outside delivery em-
ployees e Accordingly, we shall exclude them from the unit.
We find that the following employees in the circulation department
of the Employer's Ohio State Journal Division, Columbus, Ohio, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act:
All city men-morning, city district men-green, State road men,
downtown street supply men,7 and city green district drivers, but ex-
cluding truck drivers, city independent haulers, suburban route oper-
ators, city green home delivery men, carriers, mailing room employ-
ees, office and clerical employees, guards, and supervisors s as defined in
the Act.
[Text of Direction of Election omitted from publication in this
volume.]
6 The American News Company, 71 NLRB 30. This finding makes it unnecessary to
determine the supervisory status of the auditor who, as an office employee, is excluded
with the other clericals.
' Including the relief downtown street supply man who works as such 2 days per week.
e Including the circulation director of the Dispatch Printing Company ; circulation
manager ; assistant circulation manager ; district sales managers ; office manager ; suburban
route supervisor; and State circulation manager.
P. E. ASHTON COMPANY, ET AL .1 and INTERNATIONAL ASSOCIATION OF
MACHINISTS DISTRICT LODGE 114, LOCAL LODGE 1066, AFL, PETI-
TIONER. Case No. 20-RC-1240. April 9, 1951
Decision and Direction of Elections
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Eugene K. Kennedy,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
'The following Employers are included in the petition : Central Utah Motor Company ;
A. L. Duckett Sales and Service Inc.; Burton J Frampton , d/b/a Frampton Motor
Company ; Ralph P. Naylor , Lawrence G. Naylor, W . N. Richmond and A. N. Thomas, d/b/a
Naylor Auto Company ; Telluride Motor Company ; Clarence H. Harmon and A. J.
Harmon, d/b/a United Sales and Service ; and Wasden Motor Sales Company.
93 NLRB No. 208.