The Houston Press Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 660 (N.L.R.B. 1946)

In the Matter of THE HOUSTON PRESS COMPANY and CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. 16-R-1055.-Decided August 26, 1946
Fulbright, Crooker, Freeman cf; Bates, by Mr. W. N. Arnold, of
Houston, Tex., for the Company.
Mr. J. E. Crossland, of Houston , Tex., for the Union.
Miss Katharine Loomis, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Congress of. Industrial Organizations,
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of The Houston
Press Company,' Houston, Texas, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Glenn L. Moller, Trial Examiner. The hearing
was held at Houston, Texas, on May 11 and 12, 1045. The Company
and the Union appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. At the hearing the
Company moved to dismiss the petition on the ground that the news-
boys involved in this proceeding are not its employees.2 The Trial
Examiner referred the motion to the Board. In its brief, the Company
moves for a dismissal of the petition on the further ground that the
activities of the newsboys have no susbtantial effect upon commerce.
For reasons hereinafter stated the Company's motions are denied.
The Trial Examiner's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties wer afforded oppor-
tunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
' The name of the Company appears as amended at the hearing.
The Company cites Matter of Houston Chronicle Publishing Company, 28 N L R B.
1043, in support of its position
70 N L R B, No 48.
660
THE HOUSTON PRESS COMPANY
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
661
The Houston Press Company, a Texas corporation, is engaged at
Houston, Texas, in the publication of a daily (excluding Sunday),
newspaper known as The Houston Press. The average daily circula-
tion of the newspaper is approximately 78,500 copies. The Company
uses annually in excess of 3,000 tons of newsprint, of which 40 percent,
amounting in value to about $75,000, is shipped to its plant from points-
outside the State of Texas. Approximately 8 percent of the adver-
tising in The Houston Press originates from points outside Texas,
In connection with its operations, the Company utilizes the services.
of the United Press and the Scripps-Howard News Alliance.
The Company does not deny and, indeed, appears to admit that.
Its operations affect commerce. However, it contends that the active--
ties of the newsboys are so remotely related to its operations and so•
local in character that they do not, in themselves, affect commerce..
In view of our finding hereinafter that the newsboys are employees-
and, also, in view of the well-established principle that it is not a
prerequisite to the Board's jurisdiction that a specific determination
be made that the duties of the particular employees sought to be rep-
resented affect interstate commerce,' we see no merit to the Company's,
contention. We find, therefore, that the Company is engaged in.
commerce within the meaning of the National Labor Relations Act..
II. THE ORGANIZATION INVOLVED
Congress of Industrial Organizations is a labor organization ad-
mitting to membership employees of the Company.
111. THE QUESTION CONCERNING REPRESENTATION
On or about September 7, 1944, the Union requested recob Iition'
from the Company as the bargaining agent for all street newsboys
selling its papers in downtown Houston. The Company has refused
to grant such recognition on the ground that the newsboys are not
its employees.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
8 See Virginia Electric ti Power Company v . N. L. R. B., 314 U. S. 469 ; Matter of City'
National Bank and Trust Company, 50 N. L. R. B.,516; Matter of The Northern Trust
Company, 69 N L R B 652
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- IV. THE APPROPRIATE UNIT
A. The status of the newsboys
The Union seeks a unit of newsboys who sell The Houston Press
from fixed locations in downtown Houston. The Company takes the
position that the newsboys are not its employees but rather independ-
ent contractors and, as such, are not entitled to the Act's protection.
Although designated as newsboys, the individuals here concerned
are mature men between the ages of 35 and 70 who depend upon the
sale of papers as their sole source of livelihood. They have no finan-
cial interest in their. sales locations and do not employ helpers to
assist them in making sales. While the Company does not carry these
individuals on its pay rolls or grant them the benefits of Social Se-
curity, Workmen's Compensation, or Unemployment Compensation,
it is nevertheless dependent upon them for street sales of its papers
to the public. The street sales come under the general supervision of
the circulation manager of the Company's circulation department, and
under the more immediate supervision of a street circulation manager
and of three streetmen who are responsible to the street circulation
manager. The street circulation manager and the streetmen 4 are
carried on the Company's pay rolls and are admittedly its employees.
The newsboys receive their papers from the streetmen at a price
determined by the Company, and sell the papers to the public at a
.price likewise fixed by the Company and printed on the front page of
each paper.5 They settle their accounts with the streetmen at the end
of each day, retaining for their earnings the difference between the
price at which they receive the papers and the price at which the papers
are sold.
Before the wartime gasoline shortage the streetmen delivered all
four editions of the paper to each newsboy either at his individual
selling location or at a nearby "spot" fixed-by the streetmen as the place
of delivery. At the time of the hearing the Company had, in con-
formity with an order of the Office of Defense Transportation that
only two deliveries a day could be made at any one place, rearranged
its delivery system so that two of the four editions were obtained by
the newsboys from a substation the Company established in the down-
town area.'
4 All of whom are at times referred to herein as "streetmen."
The Company in its brief points to an instance where newsboys sold papers at a football
game for mole than the established price and refers to the receipt, upon occasion, of com-
plaints from customers that newsboys have sold papers at more than this price. These,
however, appear to be isolated instances Moreover, we are of the opinion that, by printing
the price on the front page, the Company has effectively set the price of its product for
public consumption.
6 The Company's plant is 12 blocks from the center of the downtown area. The substa-
tion is Niwithin 2 to 5 blocks of the spots of the newsboys who were witnesses at the hearing.
THE HOUSTON PRESS COMPANY 663
In addition to fixing the place and the manner of delivery the Com-
pany has always controlled the quantity of papers made available to
the newsboys. The streetmen estimate the number of papers which
will be sold in the downtown area before making their deliveries. In
arriving at the proper number for distribution, they take into consider-
ation both the number of papers usually sold by the particular news-
boy and the news value of the particular edition. The record further
shows that the amount made available to the newsboys at the time of
the hearing had also been affected by wartime rationing of paper. On
those frequent occasions when the streetmen could not obtain papers in
the desired amount, they had distributed the number available to the,
newsboys under instructions from Earl Buell, the circulation manager,
to allot the papers equitably among the newsboys. Rationing had also
had the effect of. limiting the number of unsold papers returnable for
credit.?
The acquisition by the newsboy of his location has also been con-
trolled by the Company. Thus, each of the seven newsboys who
testified at the hearing stated that he originally obtained his selling
location by inquiring of one of the streetmen whether a spot was
"open." In those instances where a spot was available the newsboy
was escorted to it and almost immediately supplied with papers. In
other instances the newsboy kept in touch with the streetmen until a
spot was found for him. Indeed, the streetmen keep lists of appli-
cants for the various corners. Because some of the spots are better
selling points than others newsboys have sought and been granted
transfers, apparently upon a merit basis. With'respect to the extent
of their locations,,newsboys have either been definitely instructed by
the streetmen or have understood' from the fact that they had been
assigned to particular locations, that their selling activities were
restricted to those spots. They have, in practice, so restricted their
areas of operation.' Although newsboys, some of whom regularly sell
other Houston papers as well as The Houston Press, do leave their
spots to sell Sunday, holiday and extra editions of any of the papers
they handle, this appears to be an exception to the general practice and
to be done with the approval of the streetmen. The newsboys in
a Although Emmitt Skains, street circulation manager, denied that he had ever refused to
accept returns, newsboys testified that they had been instructed by streetmen to limit
returns at one period to 5 percent, and at another period to 10 percent, of the number
received. Walter It. Scott, a newsboy testified that on several occasions streetmen had
refused to accept returns of 5 percent from him, and Benny Gomez, another newsboy,
testified that Skains had on one occasion refused to accept more than 10 percent of his
unsold papers.
8 P. L. Pierce, a newsboy, testified that he never sold "off his corner" because "they put
site on that corner and I expect that is the only place they except me to sell papers."
Lindsay Oklahoma Parks, another newsboy, testified that on being placed on his corner by
Skains he was instructed not to "bootjack." In newsboy parlance "bootjacking" means
to sell papers "wherever the newsboy wants to" in contrast to selling from a fixed location,
and a "bootjacker" Is a newsboy who sells from no fixed location.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such situations return to their established locations in order to sell the
regular editions of The Houston Press. In this connection, the record
shows that the streetmen have, by restricting their deliveries to the
men who sell at the established spots and refusing to deliver to other
than newsboys having fixed locations, effectively discouraged "boot-
jackers" in the downtown Houston area .9
The working schedule of the newsboys is also regulated by the Com-
pany. Newsboys testified without contradiction that they had been
instructed by the streetmen to be at their spots when the papers were
delivered; to stay on their spots until all papers were sold or until
lunchtime; to go to lunch at 2 o'clock; and to "check in" at the sub-
station before 8 o'clock. Streetmen have not hesitated to reprimand
newsboys who leave their spots during the usual working hours. One
such newsboy was reprimanded for taking too long a period for lunch,
had his papers taken away from him, and was told by a streetmen that
the latter was "through with him." Others, when found by the street-
men to be away from their respective spots, have been instructed to
return to them. Newsboys who sell both the Press and the Chronicle
have been told not to leave their spots to obtain the Chronicle.10 The
interest of the Company in the .continuous operation of the spots is
further made manifest by the fact that streetmen have selected sub-
stitutes for newsboys who were ill or on vacation.
`The streetmen. have also given the newsboys some instructions in
sales methods. With respect to the manner of operating their sales
locations, the newsboys keep their principal stock of papers in racks
and often wear aprons containing pockets for change. In the past
such equipment was supplied by the Company, although at present the
newsboys furnish it themselves. The newsboys remove the papers
from the rack in small quantities and hold them under their arms
while they call out the names of the papers in order to attract the atten-
tion of the public. Streetmen have not hesitated to instruct the news-
boys that the Press should be displayed in a prominent manner. Thus,
Newsboy Javers, who sells the Chronicle as well as the Press, was told
by Streetman Reid, "I want you to hold the Press on the outside. I
want the Press exposed and not the Chronicle at no time." In addi-
tion, others have been repeatedly instructed to "push the Press." Also,
on one occasion, when two streetmen were told by a newsboy that a
0 Streetman Raymond Reid testified that if the newsboys were not restricted to regular
selling locations we would have a revolution on our hands in downtown Houston." Reid
also testified that he would refuse to deliver papers to a "hootjacker " who appeared at one
of the established spots. Skains , in answer to questions by the Trial Examiner , admitted
that if bootjackers were prevalent in the downtown area it would have a detrimental
effect on the earnings of the men at the fixed spots and that it was to the advantage of
the Company to keep experienced men on the spots.
10 Edmond R Javers , Walter R Scott , and Emery Shoup , the newsboy witnesses who sell
both papers , all testified that they hired boys to bring their Chronicles to them after
receiving instructions that they were not to leave their spots for this purpose.
THE HOUSTON PRESS COMPANY 665
complaint was apparently about to be lodged against him because he
was "hollering his papers too loud," they responded that he was to
"keep hustling the same way" until they "told him different."
Refusals by newsboys to comply with instructions have resulted in
such disciplinary action as the discontinuance of papers for weeks or
months at a time, or removal from the location 11
In the Hearst case 12 the Supreme Court was confronted with a some-
what analogous situation to that presented here. In that case the
newsboys involved were mature men who worked as news vendors on
a regular basis and were dependent on the proceeds of their sales for
their livelihoods. They sold their papers from established spots and,
although they bought and sold these spots among themselves, the pub-
lisher reserved the right to approve each spotholder and to remove
him from his spot for reasons of discipline or efficiency. The news-
boys, who themselves hired helpers- to assist them in their sales, were
not carried on the publisher's pay rolls, nor did they enjoy the benefits
of Social Security or Unemployment Insurance. Their earnings con-
sisted of the difference between the prices at which they sold the papers
to the public and the prices at which they purchased them from the
publisher, the publisher controlling the buying and selling prices and
also the number of papers allotted to each newsboy. Although the
newsboys were given some latitude for the exercise of individual initia-
tive in making their sales, the publisher controlled the broad terms
and conditions of their work through the supervisory efforts of its
district managers. These individuals gave the newsboys explicit in-
structions as to their hours of work and, by measures varying in
severity from reprimand to dismissal, obtained compliance with their
instructions. They also instructed the newsboys in methods of sales
technique and sought to enforce standards of good conduct and dili-
gence during working hours. In its opinion the Supreme Court laid
down some general principles with regard to the meaning of "em-
ployee" as used in the Act. The Court said that many service rela-
tionships existed in which the individuals who performed services
possessed characteristics of both independent contractors and of em-
ployees and yet did not clearly fall within either group; that, with
respect to such workers, the economic facts surrounding the relation-
ship rather than technical or common law concepts, were significant
11 Although Buell testified that he had instructed the streetmen not to "control" the
newsboys, Reid 's version of such intructions was that "he didn 't want us to exercise
any more control over those boys than we had to " And neither Skains nor Reid, the two
streetmen who testified at the bearing , specifically denied any of the instances of instruc-
tions , reprimands , or discontinuance of papers described above
12 N. L. R B v. Hearst Publications, Inc, 322 U S 111 This case came before the Court
as a result of the Board 's decision in Matter of Stockholders Publishing Company, Inc.. 28
N L. R B . 1006, in which newsboys were found to be employees.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a determination of whether they were employees under the Act;
and that "where all the conditions of the relation require protection,
protection should be given." The Court then affirmed the Board's
finding that the newsboys were employees.
We are of the opinion that the Hearst case is controlling here. The
facts in both cases are very similar. As in the Hearst case, the Com-
pany's newsboys possess some characteristics of independent contrac-
tors insofar as they sell papers other than those of the publisher and
do not receive some of the benefits incident to the conventional em-
ployer-employee relationship. But like the publisher in the Hearst
case, the Company exercises a substantial amount of supervision over
the newsboys' hours of work and sales methods. By this means and
also by its controls of sales areas, the prices of the papers and the num-
ber allotted to each newsboy, the Company has in large measure con-
trolled their economic existence. The newsboys involved here, like
those in the Hearst case, are mature men who depend on the sale of
papers for their livelihoods. Moreover, unlike the Hearst case news-
boys, they do not have financial interests in their spots or employ
helpers. Thus, here, in some aspects, the economic facts surrounding
the relationship between the publisher and the newsboys appear to
be even more persuasive that there is an employee status within the
meaning of the Act than they were in the Hearst case. Applying the
principles of that case to the facts in the instant case, we are convinced,
in view of all the conditions pertaining to the relationship between
the newsboys and the Company, that the newsboys are the type of
workers who are entitled to the Act's protection. Accordingly, we
find that the newsboys involved in this proceeding are employees with-
in the meaning of Section 2 (3) of the Act.
In reaching our decision, we have considered, but cannot agree with,
the Company's contention that the case of Matter of Houston Chron-
icle Publishing Company, supra, in which we held that the newsboys
there involved were not employees within the meaning of the Act, is
controlling on the issue of employee status for the Company's newsboys
here involved. The facts in that case are distinguishable from those
presented here. We note especially that,- in the Chronicle case, the
newsboys selected their own sales locations , the publisher apparently
not expecting that sales would be restricted to particular areas, and
that the publisher "exercised no supervision or control over the news-
boys' activities on the street with respect to the manner and methods
used in news vending." And we also note that there is nothing in that
case to show the existence of economic facts surrounding the relation-
ship between the newsboys and the publisher similar to those brought
out in this record.
THE HOUSTON PRESS COMPANY 667
Also, in arriving at our decision in the instant case, we are cognizant
of our recent decision in Matter of Philadelphia Record Company 13
in which we held that the publisher's house-to-house newspaper carriers
were not employees within the meaning of the Act. The facts of the
Record case are also distinguishable from those in this case. In the
Record case the carriers themselves bought and sold the sales areas,
termed routes, which they operated; they also set the boundaries of
their routes, subdivided them, and added to them by the purchase of
additional routes. The publisher took little part in these transactions
and, moreover, had not in recent years ordered a carrier to dispose of a
route, to alter its boundaries, or to subdivide it. The carriers, many
of whom employed helpers to assist them in the actual delivery of their
papers, operated their routes under virtually no instructions from
the publisher regarding the details of their work, and they were free
to compete with the publisher in the wholesaling of the publisher's
papers, to sell out-of-town papers, and even to sell miscellaneous
commodities unconnected with their relationship to the publisher on
their routes. Although the publisher set the buying and selling prices
of the paper, it was the carriers who determined how many papers
would be needed to supply their customers and that number was
uniformly furnished them. We concluded that the earnings of the
carriers depended in large measure on their own energy and resource-
fulness rather than upon controls set by the publisher and that all the
economic facts surrounding the status of the carriers indicated that
they were more nearly independent contractors rather than employees
under the Act. Our decision in the Record case was premised, as is
our decision here, on an application of the principles of the Hearst
case.
B. The unit finding
The Union contends that the unit should be comprised of the news-
boys who regularly sell The Houston Press from fixed locations in
the downtown Houston area, excluding bootjackers and route carriers
who deliver the newspaper to residential subscribers. Although the
Company takes the position that no unit of newsboys is appropriate,
it appears to contend that, in the event the Board does make a unit
finding, bootj ackers should be included in the unit.
In the Hearst case we excluded bootjackers on the ground that they
did not have the same regular and continuing interests in their em-
ployment as did the newsboys who sold from established spots. For
the same reason, we shall exclude them here.
We find, therefore, that all newsboys who regularly sell The Hous-
ton Press from fixed locations in the downtown Houston area, exclud-
13 69 N. 1, R B. 1232
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing bootjackers, route carriers who deliver the newspaper to residen-
tial subscribers, and all supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the
employees in the appropriate unit who were employed on the date of
the Direction of Election herein, subject to the limitations and addi-
tions set forth in the Direction.14
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3; as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Houston
Press Company, Houston, Texas, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Sixteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article,
III, Sections 10,and 11, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed on the date of this Direction, including employeeswho
did not work on that date because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine. whether or not they desire to be represented
by Congress of Industrial Organizations, for the purposes of collective
bargaining.
14 At the hearing Skains designated the 49 locations at which the Press is regularly sold.
A list of the locations is attached hereto as Appendix A in order to aid in the conduct
of the election.
THE HOUSTON PRESS COMPANY 669
APPENDIX A
1. Medical Arts Building
2. Texas Company
3. Capitol and Fannin
4. Texas State Hotel
5. Cotton Hotel
6. Gulf Building
7. Capitol and Travis
8. Sacks
9. Greyhound Bus Terminal
10. Majestic Grill
11. Nellie Esperson Building
12. Neils Esperson Building
13. Houston Trunk Factory
14. Liggett Drug Store at Rusk
and Main
15. Second National Bank
16. Forum Cafeteria
17. West Building
18. Scholl's Cafeteria
19. Stowers
20. Commerce Building
21. One's a Meal at Main and Mc-
Kinney
22. Lamar Hotel
23. Humble Building
24. Continental Oil
25. Union Station
26. Ben Milani Hotel
27. Petroleum Building
28. Cotton Exchange
29. Prairie and San Jacinto, also,
called Bus
30. Keystone Building
31. Shell Building
32. Sterling Building
33. Fannin Pharmacy
34. Rice Hotel
35. Adams Hot Shop
36. Walgreen's Store at Texas and
Travis
37. Barnacle Building
38. Columbia Dry Goods Store-
39. Citizens State Bank
40. Owl, at Preston and Fannin.
41. Court House
42. Zindlers
43. First National Bank
44. Union National Bank
45. Merchants and Manufacturers
Building
46. Southern Pacific Building
47. Bowen Bus Depot
48. Auditorium Hotel
49. Great Southern Building