The Herald Star

National Labor Relations Board - Board Decisions

Dec 22, 1976

227 N.L.R.B. 505 (N.L.R.B. 1976)

HERALD STAR, CANTON DIVISION 505
The Herald Star, Canton Division , Thomson Newspa-
pers, Inc.' and The Newspaper Guild, AFL-CIO-
CLC, Petitioner. Case 8-RC-10010
December 22, 1976
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held on various dates from August 15 through 20,
1975, before Hearing Officer Lawrence E. Kandrach,
and on various dates from October 9 through
November 14, 1975,2 before Hearing Officer William
M. Kohner. Following the hearing and pursuant to
Section 102.67 of the . National Labor Relations
Board Rules and Regulations and Statements of
Procedures, Series 8, as amended, and by direction of
the Regional Director for Region 8, this case was
transferred to the National Labor Relations Board
for decision. Thereafter, the Employer and Petitioner
filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds no prejudicial
error was committed. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board finds:
1. Thomson Newspapers, Inc., is incorporated in
the State of Delaware. The Herald Star, Canton
Division, Thomson Newspapers, Inc., with its princi-
pal office and place of business in Steubenville, Ohio,
is engaged in the publication of daily and Sunday
newspapers. Annually, during the course and con-
duct of its operation, the Herald- Star derives gross
revenues in excess of $200;000 and receives goods
valued in excess of $50,000 directly from points
located outside of the State of Ohio. As the record
shows, and the parties have stipulated, that the
Employer is engaged in commerce within the mean-
ing of the Act; we fmd that the Employer is engaged
in commerce within .the meaning of the Act, and that
it will. effectuate the policies of the Act to assert
jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner seeks a unit of nonmechanical
employees consisting of all advertising employees
including classified advertising employees, retail-na-
tional advertising employees and dispatch clerks,
business office clerical employees, and circulation
employees, including inside clerks, outside district
managers, drivers, mailroom, employees, editorial
employees, including reporters, writers, and copy
desk personnel, maintenance employees, and proof-
readers. The unit sought consists of approximately
108 employees. The Employer takes the position that-
certain classifications of employees should be exclud-
ed from the unit. The Employer contends that the
drivers are independent - contractors; the inserters
working in the mailroom are casual employees; and
the mailroom employees and proofreaders do not
share a community of interest with the other employ-
ees sought by Petitioner or with one another. The
Employer further contends, contrary to the Petition-
er, that the following individuals are supervisors
within the meaning of Section 2(11)-of the Act: city
editor, Louis Blay; district editor, John Kirker; sports
editor, John Phillips; Sunday editor, Timothy Puet;
society editor, Ann Kennedy; accountant, Alice
Muir; circulation clerk supervisor, Alysue Kemple;
and mailroom supervisor, Carol Reed. The Employer
also states that, in the event the Board - finds the
drivers to be employees, it desires the Board to
determine whether the district managers are supervi-
sors. Finally, the Employer contends that the afore-
mentioned editors, plus the wire editor and the
reporters, are professional employees within the
meaning of Section 2(12) of the Act.
The Employer publishes and distributes in Steuben-
ville, Ohio, and outlying communities, daily and
Sunday editions of a newspaper known as the Herald
Star. Its operations are under the general control of
Dean Probert, publisher and general manager. The
editorial and news department is run by William
McCarty, managing editor, and the circulation man-
ager is David Miller. The other stipulated supervisors
are Charles Govery, retail display and national
advertising manager, and Robert Hammond, classi-
fied advertising manager . The parties stipulated that
there is a contract in effect between the Employer and
the Steubenville Printing Pressmen and Assistants
Union, No. 374, covering all pressmen in the press-
room. The parties also stipulated that there is a
contract in effect between the Employer and the
Steubenville Typographical Union, No. 238, covering
all journeymen and apprentice printers and composl-
ters.
1 , The Employer's,name appears as amended at the hearing.
2' At the request of the Employer, the hearing was reopened to permit
227 NLRB No. 82
introduction of evidence on the issue of the professional status of reporters
and editors.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Drivers
The drivers, who the Employer contends are
independent contractors, pick up the newspapers at
the Employer's loading dock and deliver the newspa-
pers to carriers, news dealers, or directly to subscrib-
ers, utilizing tubes which are supplied by the
Employer and installed at the subscribers' homes.
The drivers have geographically defined districts to
service. The Employer utilizes three classifications of
drivers, all of whom operate their own trucks to
perform the required duties. There are approximately
three contract haulers who deliver newspapers to
carriers and dealers. The contract haulers are paid a
flat rate which is determined by the Employer. The
Employer determines the number of newspapers to
be delivered by each contract hauler as well as the
dropoff points. The carriers and dealers receiving
newspapers from the contract haulers are billed
directly by the Employer.
The Employer utilizes approximately four motor
route operators who operate in the same manner as
the contract haulers, but additionally purchase news-
papers from the Employer at a wholesale rate fixed by
the Employer and deliver those newspapers directly
to tube customers at the retail rate listed in the
newspaper. The motor route operators are responsi-
ble for collecting from their tube customers. In
addition to the flat rate paid the motor route
operators for newspapers delivered to carriers and
dealers, and the money they make by selling papers
directly to subscribers, the Employer also gives them
an allowance, which is determined solely by the
Employer.
There are approximately 18 or 19 drivers classified
as distributors. The Employer advertises in the
newspaper for distributors, and an applicant is
required to fill out an application which, inter alia,
asks about the applicant's previous experience on a
route and the make, year, and condition of the vehicle
to be used. The applicants are interviewed by the
circulation manager or a district manager. Once the
new distributor is approved, a district manager will
show him the route. However, the distributor is free
to determine the order in which he will deliver or
drop off the newspapers. The Employer establishes a
pickup schedule for the distributors, and, although
the distributor is not required to pick up the newspa-
pers at the scheduled time, failure to appear at the
designated time could result in a delay. Moreover, the
3 The Employer bills the distributors , and it appears that the payments
made by the distributors are not always timely
i The Employer contends that the distributors are free to negotiate the
puce they charge to their customers However , the Employer informs the
carriers what rate they should pay the distributor . In addition , the newspaper
lists the price that a subscriber is charged . There is no evidence that the
distributors vary from the recommended retail rates , except that one
Employer "suggests" that the Sunday paper reach the
customer by 9 a.m. The distributor makes his
deliveries by using his own vehicle, which carries no
marks identifying it with the Employer. The Employ-
er does not prohibit the drivers from engaging in
other ventures for profit.
The distributor pays for the newspaper at a
wholesale rate set by the Employer,3 and sells the
papers to dealers, carriers, and tube subscribers
according to the Employer's respective recommended
rates for resale to the various classifications.4 The
distributor is responsible for billing and collecting
from the dealers, carriers, and subscribers he services.
The Employer does not withhold taxes or social
security and provides no fringe benefits to the
distributors. However, the Employer pays the distrib-
utor an allowance, the amount of which is determined
by the Employer. Circulation Manager Miller testi-
fied that the allowance is for performing the service of
delivering the newspaper for the Employer. A distrib-
utor testified that the allowance amounted to more
than the profit realized from the resale of the
newspapers.
The relationship between the Employer and the
distributor is terminable by either party, and the
Employer requests that the distributors provide 2
weeks' notice. One distributor was terminated be-
cause she failed to make deliveries I day and refused
the Employer's offer of assistance. Circulation Man-
ager Miller testified that a distributor can refuse to
deliver a newspaper to a subscriber. However, two
distributors testified that the Employer requires them
to keep certain unprofitable customers on their
routes. Distributors are required to submit annually a
complete route sheet, containing all subscribers.
Customer complaints are called in to the Employer
and the distributor is informed of the complaint. The
Employer encourages distributors to adjust com-
plaints and suggests ways to alleviate the problems.
When a carrier on a distributor's route quits, the
distributor is responsible for securing a replacement.5
If distributors have difficulty obtaining carriers, the
Employer will assist them and advertises in the
newspaper for carriers, without charge to the distribu-
tors. It appears that the distributors submit a change-
of-carrier form to the Employer when a new carrier is
engaged. The Employer informs distributors of the
minimum age requirements for carriers and requires
distributors to give carriers company handouts.
distributor, pursuant to a longstanding arrangement , charges a slightly lower
price to the Ohio Valley News, which in turn handles the distribution of the
paper in Mingo Junction
5 The distributor may also terminate a carrier . It is noted that carriers on
the routes of contract haulers and motor route operators are procured
directly by the Employer, and the driver has no responsibility in that area
HERALD STAR, CANTON DMSION 507
In determining the status of persons alleged to be
independent contractors, the Board applies-a "right
of control" test,6 which turns essentially on whether
the person for whom the services are performed
retains the right to control the manner and means by
which the results are to be accomplished, or whether
he controls only the results. In the latter situation, the
status is that of independent contractor. The resolu-
tion of this question depends on the facts in each case
and no one factor is determinative. Here, as seems
typical in cases of this kind, there are present factors
supporting the position taken by both parties with
respect to the drivers' status.
In the instant case we are satisfied that .all the
drivers are employees of the Employer. We are
mindful that the evidence, particularly with respect to
the distributors, discloses several factors usually
present in independent contractor relationships.
However, these factors are not peculiar to such status
and are not uncommon in employment relationships.
Thus, we are not persuaded by and do not regard as
controlling the facts that the drivers own and
maintain their own vehicles; the Employer does not
grant them fringe benefits or make payroll deduc-
tions; the drivers basically set their own working
hours within certain limitations and generally deter-
mine the manner - and means of delivery; and the
drivers can hire people to help them out or to
substitute for them.
The above factors are, in our view, outweighed by
the evidence demonstrating employee status. The
result to be accomplished, of course, is the circulation
and sale of the Employer's newspaper. In accomplish-
ing this result, the-driver bears slight resemblance to
the independent businessman whose earnings are
controlled by self-determined policies, personal in-
vestment and expenditure, and market conditions.
Here, the distributor must purchase his newspapers at
a cost established by the Employer and sell them at a
price in effect set by the Employer. In addition, the
subsidies paid to the distributors by the Employer
greatly reduce the distributors' risk of loss as well as
their capacity to increase earnings. The fact that the
Employer exercises control over the composition of
the route, often assists drivers with their deliveries,
and can terminate drivers virtually at will are clear
indications of an employment relationship. Further-
more, the driver has no proprietary interest in his
route, and,, if, he relinquishes his route, he does so
without compensation.
On these facts, and the record as a whole, we
cannot accept the Employer's contention that its
control is limited to the end to be achieved. We find
6 Eureka Newspapers, Inc, 154 NLRB 1181 (1965); The Sacamento Union,
Inc., 160 NLRB 1515 (1966), Beacon Journal Publishing Company, 188 NLRB
218 (1971).
that the drivers' opportunities for profits, as well as
his employment conditions generally, are limited and
circumscribed by the Employer's regulation and
control of important aspects of the drivers' work. As
the Employer has to a large extent reserved the right
to control the manner and means, in addition to the
result of the drivers' work, we conclude that the
drivers classified as contract haulers, motor route
operators, and distributors are not independent
contractors, but employees within the meaning of the
Act.7
The Petitioner would include in the unit the three
district managers who are responsible for overseeing
certain geographical districts, which include the
territories of distributors, motor route operators, and
contract haulers. The district managers interview
applicants for the driver position and show new
drivers the routes. The- record reveals that the
Employer deals directly with some dealers and
carriers,- and the district managers have the responsi-
bility for engaging carriers and taking them off
routes. They also assign mailroom employees the task
of delivering papers when necessary. In the absence
of the circulation manager, the district managers are
basically in charge of the plant and have authority to
assign work and discipline employees. In view of the
foregoing, we find that the three district managers are
supervisors within the meaning of the Act and we
shall exclude them from the unit.
The Mailroom Employees
The Employer seeks to exclude the mailroom
employees from the appropriate unit, contending that
they have no community of interest with the remain-
ing unit employees. There are approximately 9 or 10
part-time employees employed in the mailroom,8 who
manually sort and bundle the newspapers as they
come off the presses; and who work an average of 15
to 25 hours per week. The mailroom is located at one
end of the building near the inside of the loading
dock area. It is also adjacent to the reelroom, the
pressroom, and the circulation department, and there
is a wall between those departments. The mailroom is
under the general supervision of the circulation
manager and ` several mailroom employees answer
phones in the circulation department, deliver newspa-
pers, contact carriers, and collect from carriers. In
addition; mailroom employees occasionally perform
work on the loading dock. In view of the foregoing,
we shall include the mailroom employees in the unit
sought by the Petitioner. This is - in accord with
longstanding precedent where the Board has held
a Beacon Journal Publishing Co, supra.
8 No full-time employees are employed m the mailroom.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, in the newspaper industry, the optimum unit of
nonmechanical employees is one which includes all
such employees.9
The Inserters
The Employer contends that approximately 15
inserters who work in the mailroom are casual
employees and should not be included in the unit.
The inserters stuff preprints into the newspapers as
they pass through the mailroom on conveyors.
Circulation Manager Miller testified they work from
2 to 4 days a week, but they are not required to report
for work. There exists a pool of about 15 people and
the schedule for inserting is posted by the Employer.
Miller testified that if an inserter plans not to show up
for the next scheduled insert, he is required to sign a
sheet next to the schedule. Normally, about 12-14
inserters show up for each insert. Most of the inserters
have been working for over 2 years and they are paid
the same hourly rate as the mailroom employees. In
addition, inserters may be assigned other duties in the
circulation department or the accounting depart-
ment. Furthermore, inserters may be assisted by
regular mailroom employees.
Based on the foregoing, we are convinced that the
inserters are not casual employees, but are regular
part-time employees.10 Accordingly, we shall include
them in the appropriate unit.
Proofreaders
There are two full-time and two or three part-time
proofreaders whose sole function is to read copy from
the presses and return it for corrections. The Employ-
er would exclude them from the petitioned-for unit,
contending that they have no community of interest
with the unit employees, but rather that they have a
community of interest with the composing room
employees, who are represented by the Steubenville
Typographical Union, No. 238. In support of its
position, the Employer notes that the proofreaders
are located adjacent to the composing room and are
supervised by the composing room foreman, with
whom they have regular contact. On the other hand,
the proofreaders are physically located in the editori-
al department, reporters assist them in reading proof,
they have daily contact with editorial department
employees, and their wages are considerably lower
than the composing room employees.
9 Garden Island Publishing Co, Lid, 154 NLRB 697 (1965).
1. R W Page Corporation, 216 NLRB 944 (1975)
11 The Employer does not contend that Samuel Rogers, the wire editor, is
a supervisor
12 We note at the outset that the contention that journalists are
professional employees within the meaning of the Act has been fully litigated
and rejected by the Board in The Express News Corporation, 223 NLRB 627
(1976) We find nothing in the briefs or in the record in the instant case that
In our view, the record indicates that the proofread-
ers share a community of interest with employees in
the unit petitioned for, and we shall include them in
the nonmechanical unit. In so finding, we take
cognizance of the fact that the Steubenville Typo-
graphical Union, No. 238, has expressed no interest
in representing the proofreaders.
The News and Editorial Department
This department is under the direction of Managing
Editor William McCarty, who the parties have
stipulated is a supervisor. Under McCarty's direction
are six editors, approximately seven full-time report-
ers, one clerk, one photographer, and two part-time
employees. The Employer contends that five of the
editors are supervisors" and that all editors and
reporters are professional employees within the
meaning of Section 2(12) of the Act.12 The Petitioner
disagrees with these contentions and maintains that
all of the employees in the news and editorial
department, with the exception of Managing Editor
McCarty, should be included in the unit.
Before we consider the supervisory status of the
individual editors, some general observations with
respect to the operation of the news and editorial
department seem warranted. Managing Editor
McCarty testified that he schedules the hours of work
for all employees in the department and assigns work
to reporters on a daily basis. The editors have no
authority to hire, fire, or discipline, or to authorize
overtime. In addition, the editors receive the same
fringe benefits as all full-time employees. The record
indicates that McCarty is solely responsible for the
editorial policy of the newspaper, and he also
determines what the lead stories on the first page of
the newspaper will be.13 With these general consider-
ations in mind, we shall consider the facts concerning
the alleged supervisory status of the various editors.
City Editor
Louis Blay has been the city editor since approxi-
mately 1947 or 1948. He has the authority to assign
reporters to certain stories. Blay is given copy from
several reporters and it is his responsibility to assess
that copy in the areas of conciseness, accuracy, and
content. If a story is too long, he may cut it down. If
he receives a story that he does not consider com-
would lead us to a different conclusion . In view of the foregoing, we deny
Petitioner's motion to reopen the record for the purpose of permitting the
submission of additional evidence relating to the professional issue
13 No contention is made that the editors in issue are managerial
employees , and as the record indicates that they do not participate in
determining the editorial policy of the newspaper , we shall not exclude them
on that basis Sunday Editor Puet , however, has interests closely related to
management. His status is discussed infra.
HERALD STAR, CANTON DIVISION 509
plete, he may rewrite it or return it to the reporter for
revision.
Blay and Wire Editor Rogers are responsible for the
placement of stories other than the lead stories in the
newspaper. Blay is in charge of the news and editorial
department-whenever McCarty is not in the office,
and it appears that this occurs on a regular basis.
When Blay is in charge, he performs those duties
normally performed by McCarty.
On one occasion Btay.informed McCarty that two
new reporters were unsatisfactory. McCarty investi-
gated their work_and spoke with them. About 2 weeks
later, Blay again requested their termination, and
McCarty discharged their without further investiga-
tion.
-Based on the evidence-, of Blay's authority to
responsibly direct the work of his subordinates, his
effective recommendation with respect to discharge,
and his periodic substitution for the managing editor,
we conclude that thecity editor is a supervisor and
must be excluded from the unit.
District Editor
John Kirker is'the district editor and is basically
responsible for the local news coming from outside
Jefferson County. Kirker receives and edits copy
from reporters Matz Malone and Lori Jones, who
have regular beats, and from various members of the
community who witness events and relay the infor-
mation to the newspaper. Kirker has authority to
direct-reporters as to how a story should be covered,
and edits the copy by checking the story for com-
pleteness, accuracy, and conciseness. If the story
meets his approval, -he will write a headline, deter-
mine whether the' story merits a byline, and give the
story to the city editor. If the story does not meet with
Kirker's approval, he may modify or rewrite the
story. There is no evidence that Kirker returns stories
yto reporters for rewrites. He may decide that a story is
not newsworthy or that a story deserves a certain
pace. -He may also suggest to the cityamount of space.-,-
editor or the wire editor that a story should go on
page one or the section page.
Kirker did not testify. However, reporter Malone
testified that Kirker advises him as to the style of the
newspaper but that his assignments come from
Managing Editor McCarty, and that McCarty must
authorize any overtime that he works.
Based on the record, we find that the district editor
does not possess any of the indicia of supervisory
authority. It is-clear that Kirker's prima- ryduty is to
check the quality of the copy submitted to him and to
correct and rewrite stories if necessary. The Board
has long. held that such authority does not make him
-a supervisor within the meaning of the Act,14 and we
shall therefore include him in the unit. -
Sports Editor.
John Phillips, the sports editor, edits local sports
copy written by reporters and wire copy for accuracy,
completeness, ' and, conciseness. He writes the head-
lines -for all sports copy and lays out the sports pages,
determining which stories will appear, what page they
will appear on, what positions they will be in on the
page, and what size headline will 'be used. ' He also
writes local copy and writes his own sports column
which appears twice weekly.
Only Phillips works exclusively on sports -stories,
although McCarty assigns reporter Charles Powell to
cover sports- on the basis of need. Several other
-reporters and Sunday Editor Puet volunteer,to cover
sports stories, but McCarty's approval isnecessary if
Phillips assigns somebody who didn't volunteer.
-McCarty testified that Phillips hires, individuals
who work part -time,.in the sports department, but
qualified his testimony by adding that he did not
know of an instance-where a part-time person had
been hired n the sports department without first
being interviewed by him. However, McCarty added
that at, the time of the hearing, Phillips was in the
process of hiring a regular part-time employee, and
that McCarty did not intend to interview,that person.
In view of the ambiguous testimony with respect to
Sports Editor Phillips' role in the hiring process, we
are unable to determine his status. We shall,, there-
fore, permit him to vote under challenge.
Society Editor
Society Editor Ann Kennedy is responsible for
gathering and producing news for the women's pages.
She is also responsible for editing what appears in
those pages, putting headlines on that news, and
deciding placement of stories in the women's pages.
She receives material by phone or in the mail from
correspondents; or strangers. She also receives-from
reporters at the newspaper feature story copy for the
first page of the women's section of the Sunday paper.
Kennedy was hired by the Employer as a clerk
assistant to the then society editor. In June 1974, the
society editor resigned and Kennedy was given the
job. Kennedy is the only reporter of society news and
she is assisted by a clerk, Carol Wentz. Wentz spends
about 55 to 60 percent of her time on society matters,
and generally writes engagement and wedding an-
nouncements and club meeting stories prepared from
information submitted to the newspaper on a stan-
14 The Peoria Journal Star, Inc., 117 NLRB 708 (1957).
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dard format. Wentz prepares these stories essentially
without any direction, from Kennedy. Wentz also
spends a large part of her time writing obituaries. On
weekends and when Kennedy is on vacation, Wentz
does the work usually performed by Kennedy,
including writing of stories, laying out of the paper,
and editing.
-In view of the above, we conclude that there is no
evidence" that Kennedy possesses or exercises any
indicia of supervisory 'authority or is in any-sense
charged with. the responsible direction of employees.
We shall therefore include her in the unit.
Sunday Editor
Timothy Puet spends, about 65 to 70 percent of his
time as Sunday editor. He also volunteers to cover
sports stories and substitutes for Wire Editor Ro-
gers.15"Puet's responsibility for ' the° Sunday -paper
includes editing and writing Headlines for ,all local
copy which 'goes' into the paper., He also decides
where to place the stories and what pictures should
accompany the stories. Puet also determines which
wire copy and pictures will go into the Sunday paper.
Although- no reporters are regularly assigned to work
on the Sunday paper, Puet assigns reporters to cover
stories for the Sunday paper and his assignments are
based on the competencyof the reporter rather than
availability. In addition Puet has the authority to
place a feature story in the Sunday paper in the place
where he thinks it belongs.
Under all the circumstances, we find that Puet's
interests by reason of his managerial functions are
different from the interests of the other employees in
the unit. Accordingly, we shall-exclude him from the
unit.16
Part-Time Employees
At the hearing, the Employer took the position that
Jeff Bodo, who works on a part-time basis performing
photography work and operating the "scan-o-grav-
er," and Robert Kloska, who is employed on a part-
time basis as a reporter, should not be eligible to vote.
The record indicates that Bodo and Kloska are
employed on a regular part-time basis and share a
community of interest with the other newsroom
personnel. Accordingly, we shall include them in the
unit.
The parties stipulated that since the close of the
initial hearing on August 20, 1975, the Employer has
opened a bureau in Cadiz, Ohio, where it employs
one clerk, and in the future may employ one reporter.
15 The Employer does not contend that Wire Editor Samuel Rogers is a
supervisor. Rogers is responsible for editing and placing headlines on
Associated Press wire copy appearing in the newspaper . He is responsible for
selecting the wire stones and for laying out and dummying the wire news
The parties stipulated that the employee or employ-
ees of the Cadiz bureau should be included in the unit
found to be appropriate-on the same basis as similarly
situated employees in the Employer's Steubenville,
Ohio, office. Accordingly,, we include the employee
complement at the Cadiz, Ohio, bureau in the unit.
Other Supervisory - Issues
Alice,,Muir, Accountant: The Employer contends
that Muir is-a- supervisor.-There are five employees in
the accounting department and most, of her- time is
spent doing accounting work. 'Me record reveals that
she has authority to hire and-fire and has exercised
that authority.-She assigns all work in the accounting
department, recommends employees for increases,
grants time off, and arranges days off. Accordingly,
we find that she is a supervisor and she is excluded
from the unit.
Alysue Kemple: Alysue Kemple, who the Employer
contends is a supervisor, is classified as a clerk
supervisor in the circulation department: There are
two other clerks in the department. She spends about
95 percent of her time performing clerical work, and
she has no authority to hire, fire, or discipline.
However, the, two clerks were informed by Circula-
tion Manager Miller that Kemple was the supervisor,
she is paid approximately 20 percent more than the
other clerks, and she assigns work to the-clerks based
on her determination of which clerk is more capable
of performing the work. She also directs the clerks in
the performance of their work and has reprimanded
them. Finally, she has authority to grant, time off and
she has exercised that--authority. Accordingly, since
Kemple exercises certain indicia of supervisory
authority, we conclude that she is a supervisor and
must be excluded. -
Carol Reed: The Employer takes the position that
Reed should be excluded as a supervisor of the
mailroom employees. The record reveals that the
employees were told that Reed was a supervisor; that
she assigns work, has reprimanded employees, and
may grant time off; and, unlike other mailroom
employees, she receives a paid vacation. However, it
is clear that Reed, who is employed on a part-time
basis and performs,tasks done by other employees,
has no authority to hire, fire, discipline, or promote,
and does not adjust' grievances. Although she may
grant time off, she may not grant days off. It also
appears that she makes assignments on an infrequent
basis and that the assignments originate with Circula-
tion Manager Miller, who schedules the hours for the
mailroom employees. On these facts, we find that
stories in the paper, except for deciding which stones will appear at the top of
the first page and the section page . That decision is made by McCarty
16 The Peona Journal Star, Inc., supra at 711
- HERALD STAR, CANTON DIVISION
Reed acts as a conduit for the orders from Miller. We
conclude- that she is not a supervisor and we shall
include her in the unit.
We find the following unit appropriate for collec-
tive bargaining:
All advertising employees including classified
advertising `employees, retail-national advertising
employees and dispatch clerks, and business office
clericako employees and circulation employees,
including inside clerks, drivers, and mailroom
employees, and editorial employees, including
reporters, writers, and copy desk personnel, main-
tenance employees, and proofreaders, but exclud-
ing all, confidential employees, managerial em-
ployees, guards and supervisors as defined in the
Act.
[Direction of Election omitted from publication.] 17
MEMBER PENELLO, dissenting in part:
I disagree with the- position of the majority that the
18 or 19 drivers classified as distributors are employ-
ees within -the meaning of the Act. In my view, by
failing to fmd these individuals to ` be independent
contractors, my colleagues have incorrectly read the
record facts and have ignored-indeed, in effect,
have reversed without saying so-recent Board
precedent involving Board panels in which they were
not participants.18
The record reveals that each distributor arranges
with the Herald Star to deliver newspapers within a
specified geographical territory. The Newspaper does
not withhold income or social security taxes, pay
workmen's compensation or unemployment insur-
ance, or provide fringe benefits to the distributors.
The distributors are not required to attend meetings
or make reports, are responsible for supplying their
own substitutes in case of absences, and must furnish
and maintain delivery vehicles which have no visible
identification with the Herald Star. The Newspaper
has established a pickup schedule to provide for
orderly and efficient loading in the limited dock area.
However, aside from the pickup time, distributors are
free to arrange deliveries at their own convenience
and in their own fashion.19 No restrictions have been
placed on the distributor's rights to engage in other
ventures for profit.
The distributors purchase the newspapers from the
Herald Star at a wholesale rate and then resell the
papers to dealers and carriers at a discounted rate, or
to individual subscribers at a retail rate. The Newspa-
per does recommend a rate of resale for the various
17 Excelsior footnote omitted from publication.
18 Las Vegas Sun, Inc., 219 NLRB 889 (1975) (Chairman Murphy and
Members Kennedy and Penello); Donrey, Inc, dlbla Las Vegas Review-
Journal, 223 NLRB 744 (1976) (Chairman Murphy and Members Penello
and Walther)-both cases involved home delivery dealers
511
types of classifications to whom the distributors sell
the papers, but the Herald Star specifically permits
the distributors to negotiate their own rates of resale
to their various customer-s-.-20 The mode of delivery,
i.e., through dealers, carriers, or self-delivery, is
decided entirely by the-distributor. Responsibility -for
billing-and collecting from customers and for any loss
from the failure of a subscriber or carrier to pay a bill
is borne entirely by the distributor. In a similar
fashion, if papers are lost, damaged, or stolen during
delivery, the loss is absorbed entirely by the distribu-
tor. Further, since the distributor is liable for dam-
aged papers, -the responsibility of purchasing protec-
tive materials and the decision to use such materials
during inclement- weather rest - entirely with the
distributor. If the distributor-overordersand is unable
to sell, all the purchased papers, the distributor, not
the Newspaper, is liable for the overage.
Although thee . distributors are assigned _a specific
geographical area , they - are free to solicit new
subscribers within or without the territory. Thus, the
ultimate size of the route depends on the particular
distributor''s initiative. As heretofore mentioned, the
distributors are free to determine the mode of
delivery, and therefore unilaterally hire and fire their
carriers and negotiate on their own the arrangements
with their dealers. Although on occasion the Newspa-
per forwards customer complaints, the distributors
are entirely responsible for answering and remedying
those complaints. Two or three times a year the
Newspaper requests the distributors to turn in lists of
all new subscribers, but the Herald Star does not
enforce these requests for the updated lists. The
distributors, therefore, are the only individuals who
have access to a complete updated list of the specific
subscribers and dealers in their territories. Uncon-
tradicted evidence establishes that distributors may
transfer or sell their subscriptions lists to third parties
and the Newspaper's only concern is whether the
particular third party represents a credit risk.
In my view, the factors involving profit-and-loss
opportunities here require a finding of independent
contractor status. The distributor determines how
many papers he will purchase. If any of those papers
are unsold, lost, or damaged the distributor must bear
the loss incurred. Further, the distributor bears the
responsibility for the collection of bills and absorbs
any loss resulting from the failure to pay by a
subscriber or carrier.
Regarding earning potential, the distributor can
eliminate the middleman-the carrier-and deliver the
19 Of course, the paper must be delivered within the general parameters of
a "timely delivery."
20 At least one distributor has established a lower rate of resale to one
dealer.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
papers himself, thereby increasing his profit, -and/or
he can solicit new subscribers and dealers to increase
the size of his route.
Thus, it is clear that a distributor's income is based
on the difference between the wholesale cost of the
paper purchased (plus the cost of labor, supplies, and
losses) and the ultimate sale price and numbers of
papers sold. Also evident is - the fact that it is the
distributor, and not the Newspaper, who makes the
essential business decisions involved in the distribu-
torship.
A careful review of the facts herein convinces me
that the distributors are not "employees" within the
meaning of the-Act, but are independent contractors
who, in performing their tasks, control the manner
and means of their own performance. Thus, outside
of a pickup schedule and a general delivery time, the
21 Two other types of drivers employed by the Herald Star are, classified
as contract haulers and motor route operators . The contract haulers are paid
a flat rate determined by the Newspaper to deliver papers to carriers and
dealers. The Newspaper deternunes the number of papers and the drop off
points. The carriers and dealers receiving pa ers from the contract haulers
are billed directly by the Herald Star The contract haulers exert no
substantial influence over their own profit and loss, nor do'they control the
method -or means of their performance. I agree with the majority that the
contract haulers are employees.
Herald Star exerts no control over the method and
means of the newspaper delivery which is under the
distributor's sole control. The distributor attends no
meetings, files no reports, and is responsible for
remedying any subscriber complaints. The distributor
unilaterally determines how many carriers and deal-
ers can be successfully managed and how many
papers the distributor can deliver. .
In sum, the very most that can be said, about the
relationship in this case is that the Newspaper's
control is reserved only as to the result sought. But,
the distributor exclusively controls the means to be
used in achieving such result, thus requiring the
conclusion that the distributors ate independent
contractors. Accordingly, Iwould dismiss the petition
as to them.21
The motor route operators function in the same manner and on the same
basis as the contract haulers, but also purchase a number of papers at a
wholesale rate, as do the. distributors , and then deliver those papers directly
to subscribers at a retail rate . Since the motor route operators ' functions are
principally those of the contract haulers and are remotely those of the
distributors, I agree with , my colleagues and find them to be employees
within the meaning of the Act.