St. Joseph News-Press

National Labor Relations Board - Board Decisions

Aug 27, 2005

345 N.L.R.B. 474 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
345 NLRB No. 31
474
St. Joseph News-Press and Teamsters Union Local
460. Cases 17–CA–20534, 17–CA–20649, and 17–
CA–21008
August 27, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 6, 2001, Administrative Law Judge Al-
bert A. Metz issued the attached decision. The General
Counsel and the Union filed briefs in support of the
judge’s decision. The Respondent filed exceptions and a
brief in support of those exceptions. The Union filed an
answering brief, to which the Respondent filed a reply
brief. The Newspaper Association of America with
McClatchy Newspapers, Inc., Knight-Ridder, Inc., North
Jersey Media Group, The Belo Corp., The Tribune Com-
pany, Advance Publications, Inc., E.W. Scripps, Co., and
the California Newspaper Publishers Association, the
Missouri Press Association, and Graphic Communica-
tions International Union, AFL–CIO, CLC, filed amicus
briefs. The General Counsel filed limited exceptions and
arguments in support thereof.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and affirms the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Decision
and Order.
The threshold issue presented is whether the Respon-
dent’s newspaper carriers and haulers are employees
under the Act. We find, contrary to the judge, that under
the standards of Roadway Package System, 326 NLRB
842 (1998), and Dial-A-Mattress Operating Corp., 326
NLRB 884 (1998), they are not employees, but are inde-
pendent contractors excluded from the protection of the
Act. Accordingly, we dismiss the numerous allegations
of unfair labor practices allegedly committed against the
independent contractors.
I. FACTUAL BACKGROUND
The Respondent, Saint Joseph News-Press, publishes
early each morning a daily newspaper in Saint Joseph,
Missouri. Haulers pick up the bundled papers at the
plant and bring them to common drop points, where car-
riers1 pick them up. Carriers who deliver in areas near
the Respondent’s plant, however, pick up their bundles
directly from the plant. The carriers can either queue up

1 Because the terms and conditions of employment for haulers and
carriers are essentially the same, haulers and carriers are both referred
to as carriers, unless a particular aspect of the haulers’ job is being
addressed.
to receive their bundles as they come off the press, or
pick them up later from the loading area.
Carriers deliver papers to the Respondent’s customers.
They also place papers in newspaper racks, deliver to
dealers, and drop newspapers at the post office to be
mailed to subscribers. Some carriers, called single copy
carriers, only deliver to racks and dealers.
A. The Parties’ Contract
When hired, carriers do not complete applications.
They sign a contract with the Respondent, expressly de-
scribing them as independent contractors. The contract
grants the carrier the nonexclusive right to purchase, sell,
and deliver the Respondent’s newspaper in a designated
area and to control the method and means of making de-
liveries. Carriers sign the contracts as individuals; none
are incorporated. Thirty days’ notice is required for ei-
ther party to terminate the contract without cause or for
the Respondent to modify the contract. The Respondent
can terminate the contract for cause without notice.
The contract, which prohibits carriers from displaying
the Respondent’s insignia while delivering newspapers,
obligates carriers to provide their services 7 days a week.
It requires that newspapers must be delivered by 6 a.m.
on weekdays and Saturdays and by 6:30 a.m. on Sun-
days. Carriers must post a bond—the amount of which is
individually negotiated—with the Respondent to cover
any liability the carriers incur while delivering the news-
papers or to cover delivery costs if the Respondent has to
take over the route. The contract also requires carriers to
carry automobile insurance.
The contract specifies a wholesale price at which the
Respondent will sell the newspapers to carriers and a
retail price at which the carriers sell the papers to sub-
scribers. Under the contract, the Respondent can change
the wholesale price on 30 days’ notice, and the retail
price is printed on the papers. The contract also provides
for a flat weekly amount to be paid carriers, called the
rate adjustment credit, which varies from carrier to car-
rier. Carriers who deliver to racks and dealers negotiate
a per piece rate for their delivery services.
B. The Respondent’s Method of Compensation
Most customers pay the Respondent in advance for
their subscriptions (PIA customers), but some customers
pay their carriers (carrier-collect customers). Carriers
bill those customers, deciding whether and to what extent
to extend credit to them. If a PIA customer fails to pay
the Respondent’s bill, the customer is converted to a car-
rier-collect customer. The carrier has the discretion to
either continue delivering the paper to the customer or to
terminate the customer’s subscription for nonpayment.
ST. JOSEPH NEWS-PRESS 475
Each month, every carrier receives a statement tabulat-
ing the amounts he or she owes, and is owed by, the Re-
spondent. The statements show the number of newspa-
pers purchased by the carrier and the amount the carrier
owed the Respondent for those papers. It also shows the
amount of money the Respondent owes the carrier for
newspapers subscribed to by customers who have paid
the Respondent in advance. That amount is credited to
the carrier, along with the carrier’s rate adjustment credit,
which is reflected on the statement. If the carrier ser-
vices a newspaper rack, a $1 per month charge for rental
of the rack is shown. Carriers are also charged for any
sales tax they collected from customers they bill directly
and for a $1 per month service charge for processing
sales tax. The net credit is remitted to the carrier by
check.
The Respondent does not withhold income taxes or
pay workers’ compensation. In addition, carriers receive
no fringe benefits. At the end of the year, the Respon-
dent issues carriers a 1099 form.
C. The Means of Work
Carriers provide the vehicles they use to service their
routes. The Respondent does not specify a particular
type or make of vehicle. Instead, Respondent only re-
quires that the vehicle be large enough to carry the num-
ber of papers necessary to service the route, that it pro-
vide cover for the newspapers in case of rain, and that it
be reliable. Carriers maintain their vehicles, and are not
reimbursed for any maintenance or operating costs, al-
though they receive a gas subsidy the Respondent initi-
ated to offset higher gas prices. If the carriers are unable
to use their own vehicles, they are responsible for finding
replacements.
Carriers pay for their own supplies, such as plastic
bags and rubber bands, which they can purchase from the
Respondent or another vendor.
D. The Extent of the Respondent’s Control
Over Carriers
The Respondent communicates with carriers primarily
through memos left for them on top of their bundles.
Notices of new customers and customer lists are pro-
vided to carriers in their bundle tops. The circulation
department’s district managers are the Respondent’s rep-
resentatives primarily responsible for contact with the
carriers. The district managers occasionally call or meet
with carriers. The district managers are generally at the
plant from 9 a.m. to 5 p.m., while the carriers are usually
at the plant at around 2 a.m. The carriers are not required
to return to the plant after completing their routes.
Customer complaints are usually lodged with the Re-
spondent’s customer service department and the district
managers relay them to the carriers. District managers
do not discipline carriers who fail to correct problems
complained about by customers, and carriers are not cov-
ered by the Respondent’s employee handbook or any
other extracontractual work rules. If customers consis-
tently complain about a carrier’s service, district manag-
ers have, on occasion, terminated a carrier’s contract.
E. Entrepreneurial Potential
Although carriers may not subcontract their routes
formally, they can, without any notice to the Respondent,
hire substitutes to make deliveries for them. The terms
and conditions of the substitutes’ employment are set by
the carrier. The Respondent puts no limits on how often
a carrier can use a substitute, and some carriers use full-
time substitutes.
If a customer complains that a carrier failed to deliver
a newspaper or that the newspaper was damaged upon
delivery, the carrier is notified and can choose to rede-
liver the newspaper or have the Respondent make the
redelivery. If the Respondent makes the redelivery, the
Respondent charges the carrier for the service. The Re-
spondent employs a few drivers for the purpose of mak-
ing redeliveries, restocking empty newspaper racks, and
delivering newspapers on unassigned routes.
Carriers can solicit new customers on their own. The
contract provides for free copies of the newspaper to aid
carriers in promoting new subscriptions. The Respon-
dent also runs circulation promotions, in which carriers
participate. In addition, the Respondent uses telemar-
keters to solicit new subscribers. If the Respondent so-
licits a new subscription from a customer who a carrier
previously terminated for nonpayment, the carrier can
refuse to deliver to that customer. The carrier can also
refuse to service a new subscriber who lives too far from
the carrier’s route or whose home is inaccessible.
The Respondent determines the routes and can alter
them. The Respondent sometimes splits routes that be-
come, in its view, too large. The Respondent does not
grant exclusive rights to routes, and some carriers deliver
to racks or dealers that are located within another car-
rier’s route. The Respondent also delivers on the routes,
if necessary, to replace a missed or damaged paper or to
restock a rack that ran out during the day.
Carriers are free to hold other jobs and deliver other
products while delivering newspapers on their routes for
the Respondent. Nothing in the contract prohibits the
carriers from delivering a competing newspaper at the
same time they are delivering the Respondent’s newspa-
per. At least one carrier also delivers a national newspa-
per and other carriers deliver other regional newspapers.
Single copy carriers pick up a route sheet and an elec-
tronic wand from the Respondent each day. The wand
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD476
electronically records information relating to each rack
serviced by the carrier, including the number of newspa-
pers stocked and the time of delivery. These carriers are
required to return the wands to the Respondent at the end
of their shifts. The carriers can return proof of unsold
papers and receive credit for them. The Respondent de-
termines the dealers and the location of the racks and sets
the price at which the newspapers are sold from the
racks.
Many carriers have one route; several more than one.
One carrier has four routes. Carriers with multiple routes
can have one hauling route and one delivery route or
several delivery routes.
F. Training
New carriers usually learn their routes from their
predecessor carriers. If the predecessor carrier is not
available, a district manager rides the route with a new
carrier. Carriers prepare either a route book or an audio
tape that describes how they perform their routes, includ-
ing directions and customers’ preferences for placement
of their newspapers, such as a designated tube near the
mailbox, on a porch, or on the lawn. Carriers are not
required to follow the route books or tapes.
II. THE ADMINISTRATIVE LAW JUDGE’S DECISION
The complaint alleged that the Respondent violated
Section 8(a)(3) and (1) by various actions taken against
carriers, including allegations that the Respondent dis-
charged carriers because of their union activities.
The judge found that “the Respondent’s integration
and control of the carrier and hauler work necessitates
the conclusion that these workers are ‘employees’ within
the definition of Section 2(3) of the Act.” Applying the
criteria set forth in Roadway Package System, 326 NLRB
842 (1998) (Roadway), the judge found the following
factors weighed most heavily in favor of finding em-
ployee status: (1) the carriers did not operate as inde-
pendent businesses; (2) they devoted most of their time
to performing a function integral to the Respondent’s
business; (3) the Respondent drafted and modified the
contract unilaterally; (4) the Respondent provided some
training for the carriers; (5) the Respondent set pick up
and delivery times; (6) the carriers did not have an exclu-
sive right to deliver newspapers on their routes; (7) the
carriers had little entrepreneurial opportunity for gain or
loss; (8) the Respondent did the bookkeeping; and (9) the
Respondent had employees who did the same work.
Having found that the carriers were employees under the
Act, the judge then found that various personnel actions
taken by the Respondent regarding the carriers violated
the Act.
III. POSITIONS OF THE PARTIES
The General Counsel contends that the judge correctly
found that the carriers were employees, and that under
Roadway, supra, and its progeny, such a finding is re-
quired. The General Counsel agrees with the judge’s
finding that the carriers’ work is intrinsic to the Respon-
dent’s business, that the carriers have no true entrepre-
neurial opportunities, that the Respondent largely con-
trols the economic relations of the parties, and that the
terms of the contracts between the carriers and the Re-
spondent are not determinative of the carriers’ status.
The General Counsel relies on similar factors in Corpo-
rate Express Delivery Systems, 332 NLRB 1522 (2000),
enfd. 292 F.3d 777 (D.C. Cir. 2002), in which the Board
found that owner-operator delivery drivers were employ-
ees where they performed essentially the same functions
as the respondent’s employees who did the same work,
and whose work played an essential role in the respon-
dent’s business operations. The General Counsel does
not address pre-Roadway cases.
The Respondent contends that the judge erred in find-
ing that the carriers are employees. It characterizes the
common law test set out in Roadway as, ultimately, an
assessment of the degree of control that the employer
asserts over the hired party. Therefore, the Respondent
argues, the pre-Roadway right to control test is the same
as the Roadway common law agency test. It notes that
the Board has consistently found that newspaper carriers,
haulers, distributors, and hawkers are independent con-
tractors, and argues that this line of cases remains good
law and is applicable to the instant case.2 The Respon-
dent further contends that a finding of independent con-
tractor status is consistent with Roadway and Dial-A-
Mattress, supra.
In addition, the Respondent contends that the judge
failed to consider a number of factors supporting a find-
ing of independent contractor status, which were present
in other cases in which the Board found newspaper carri-
ers to be independent contractors. Among the factors
that the Respondent cites are: (1) the carriers were not
subject to discipline by the Respondent; (2) carriers can
use their vehicle for other purposes; (3) carriers can use
substitutes and determine the substitutes’ terms and con-
ditions of employment; (4) carriers have discretion with
respect to extending credit to customers and responding
to customers’ complaints; (5) carriers can deliver other
newspapers while delivering the Respondent’s newspa-
pers and can hold other jobs; (6) carriers are not subject

2 See, e.g., Thomson Newspapers, 273 NLRB 350, 351–352 (1984);
Drukker Communications, Inc., 277 NLRB 418 (1985); Glens Falls
Newspapers, Inc., 303 NLRB 614 (1991); A. S. Abell Publishing Co.,
270 NLRB 1200 (1984).
ST. JOSEPH NEWS-PRESS 477
to supervision by the Respondent in the field; and (7)
carriers can refuse to make a delivery when a customer is
too remote.
Amici joining the Respondent in arguing for reversing
the judge’s findings fault the judge for not addressing
pre-Roadway newspaper cases. They note that the judge
did no more than compare those cases without analysis to
the cases on which he relied and state summarily that
they were “analyzed on the basis of the right to control
test.” The amici join the Respondent in contending that
that the judge erred in relying on cases involving deliv-
ery services rather than businesses like the Respondent’s
where the delivery personnel deliver only the employer’s
product.
Amicus GCIU, which joins the General Counsel in ar-
guing for adopting the judge’s findings, advocates that,
in cases where the outcome under the common law test is
close, the Board modify the Roadway test by including a
determination of whether the Act’s purposes would be
served by finding independent contractor status. GCIU
relies upon the Supreme Court’s admonition in Allied
Chemical & Alkali Workers Local 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 168 (1971), that, although
common law principles cannot be ignored when assess-
ing employee status, “[i]n doubtful cases, resort must still
be had to economic and policy considerations to infuse
Section 2(3) with meaning.” GCIU argues that in this
case, which it characterizes as close, categorizing the
carriers as independent contractors and thus placing them
outside the purview of the Act would not serve the pur-
poses of the Act. Therefore, it argues, the Board should
find that the carriers are employees because the carriers
are the kind of workers—individuals who bring little
individual economic leverage to the hiring relationship—
that the Act was designed to protect.
For the following reasons, we find merit in the Re-
spondent’s exceptions, reverse the judge, and dismiss the
complaint.
IV. LEGAL PRINCIPLES
Section 2(3) of the Act, as amended by the 1947 Labor
Management Relations Act, provides that the term “em-
ployee” shall not include “any individual having the
status of independent contractor.” 29 U.S.C. § 2(3). In
NLRB v. United Insurance Co. of America, 390 U.S. 254
(1968), the Supreme Court declared that
[t]he obvious purpose of [the exclusion of independent
contractors] was to have the Board and the courts apply
general agency principles in distinguishing between
employees and independent contractors under the
Act. . . . Thus there is no doubt that we should apply
the common-law agency test here in distinguishing an
employee from an independent contractor.
Id. at 256.
The Court noted that there is no “shorthand formula”
for applying the common-law test, and held that under
the common-law agency test “all the incidents of the
relationship must be assessed and weighed with no one
factor being decisive. What is important is that the total
factual context is assessed in light of the pertinent com-
mon-law principles.” Id. at 258.
In 1989, the Supreme Court considered the meaning of
the key term “employee” under the Copyright Act of
1976 in Community for Creative Non-Violence v. Reid,
490 U.S. 730. Its discussion in Reid, which cited United
Insurance, supra, expanded and further clarified the ana-
lytical tools for distinguishing employees from those
who performed “work for hire.” The Court found that
under the Copyright Act, as “in past cases of statutory
interpretation,” the appropriate understanding of the term
employee was the “general common law of agency . . .
[the] federal rule of agency.” Id. at 740. The Court cited
the Restatement and set out standards for the analysis
under common law:
[i]n determining whether a hired party is an employee
under the general common law of agency, we consider
the hiring party’s right to control the manner and means
by which the product is accomplished. Among the
other factors relevant to this inquiry are the skill re-
quired; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship
between the parties; whether the hiring party has the
right to assign additional projects to the hired party; the
extent of the hired party’s discretion over when and
how long to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether the
work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired
party. See Restatement § 220(2) (setting forth a non-
exhaustive list of factors relevant to determining
whether a hired party is an employee). No one of these
factors is determinative.
Id. at 750–752. (Citations omitted.)
In 1998, in light of United Insurance, Reid, and other
Supreme Court precedent,3 the Board reconsidered its
standards for determining independent contractor or em-
ployee status under the Act in two companion cases,
Roadway Package System, 326 NLRB 842 (1998), and

3 See NLRB v. Town & Country Electric, 516 U.S. 85 (1995); Na-
tionwide Mutual Insurance v. Darden, 503 U.S. 318 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD478
Dial-A-Mattress Operating Corp., 326 NLRB 884
(1998). The Board noted particularly “United Insur-
ance’s observations about the appropriateness of using
the common law of agency as the test for determining
employee status” and found that Supreme Court prece-
dent “teach[es] us not only that the common law of
agency is the standard to measure employee status but
also that we have no authority to change it.” Id. at 849.
(Emphasis added.) The Roadway Board, as had the Su-
preme Court, took care to strike a balance between the
“right of control” factor and the flexible, multifactor ap-
proach:
[w]hile we recognize that the common-law agency test
described by the Restatement ultimately assesses the
amount or degree of control exercised by an employing
entity over an individual, we find insufficient basis for
the proposition that those factors which do not include
the concept of “control” are insignificant when com-
pared to those that do. Section 220(2) of the Restate-
ment refers to 10 pertinent factors as “among others,”
thereby specifically permitting the consideration of
other relevant factors as well, depending on the factual
circumstances presented. . . . Thus, the common-law
agency test encompasses a careful examination of all
factors and not just those that involve a right of control.
. . . To summarize, in determining the distinction be-
tween an employee and an independent contractor un-
der Section 2(3) of the Act, we shall apply the com-
mon-law agency test and consider all the incidents of
the individual’s relationship to the employing entity.
Id. at 850.
The Board then applied these standards to the terms of
hire of the company’s delivery drivers, finding them to
be employees based, inter alia, on the degree of financial
support they received from the company, both in financ-
ing and maintaining the delivery vehicles and a guaran-
teed income; the requirement that the drivers display the
corporate logo on their vehicles and be present for work
every weekday; and control over the manner of perform-
ing the work, by setting the drivers’ schedules, and by
prohibiting refusal of delivery.
In Roadway’s companion case, Dial-A Mattress, supra,
326 NLRB 884, by contrast, the Board found that the
employer’s delivery drivers were independent contrac-
tors, based, inter alia, on the employer’s lack of control
over their performance of the work, their ownership and
control over their vehicles, control over employees they
could hire to deliver some or all of the employer’s goods,
and the scope that the contractual arrangement between
the employer and the drivers allowed for entrepreneurial
opportunities: the drivers established their own busi-
nesses, often with their own employees, and they could
use their vehicles to make deliveries for other companies.
The Board distinguished Dial-A-Mattress from Roadway
by noting, inter alia, that the drivers in Dial-A-Mattress
were, in essence, left on their own to do the job, with no
income support, indifference as to the type or condition
of the delivery vehicle, lack of company control over
scheduling or penalty for failure to appear for work, and
lack of imposition of a company identity on the drivers.
In determining the status of the carriers in this case, we
rely on the Board’s analysis in Roadway and Dial-A-
Mattress. With respect to the Respondent’s argument that
Roadway did not change the legal landscape, and that
thus the right of control test is still applicable, we note
that although Roadway does not directly address the con-
tinuing viability of the pre-Roadway cases, the Board’s
analysis in those cases recognized, as does Supreme
Court law, that both the right of control and other factors,
as set out in the Restatement, are to be used to evaluate
claims that hired individuals are independent contractors.
Further, we note that since Roadway, the Board has con-
tinued to cite pre-Roadway cases that are consistent with
the principles set forth there. The Board will continue to
rely on the analysis in such cases, without adopting the
Respondent’s characterization of the development of the
law.
V. APPLICATION OF ROADWAY AND
DIAL-A-MATTRESS FACTORS
A. Roadway and Dial-A-Mattress
We find that a comparison of the common law factors
in the instant case with those factors in Roadway and
Dial-A-Mattress demonstrates, on balance, that the carri-
ers are independent contractors. For example, in Road-
way, in concluding that the drivers were employees, the
Board found that the employer retained substantial con-
trol over the manner in which the drivers performed their
services. See 326 NLRB at 851. We find, however, that
the degree of control exercised in the instant case is de-
monstrably less and akin to that exercised by the em-
ployer in Dial-A-Mattress. In the instant case, carriers
are free to change the order of delivery, to disregard cus-
tomers’ delivery requests without fear of discipline, and
to refuse to deliver to customers they deem unlikely to
pay or to whom it would not be economically feasible to
deliver. Similarly, in Dial-A-Mattress, where the drivers
were found to be independent contractors, the drivers
were free to change the order of deliveries and to refuse
orders without penalty. See 326 NLRB at 891–892.4

4 We disagree with the judge that the facts relevant to this factor
weigh in favor of finding employee status. Although the Respondent
set suggested times for the carriers to pick up their papers and a time by
ST. JOSEPH NEWS-PRESS 479
Also pertinent in the common law analysis is whether
the employer provides the tools necessary to perform the
work at issue. In Roadway, the Board found significant
that, although the drivers owned their own trucks, the
employer exercised considerable control over the vehi-
cles. See 326 NLRB at 851–852. Conversely, in both
Dial-A-Mattress and the instant case, the employer is not
involved with the drivers’/carriers’ ownership of their
vehicles. The drivers/carriers own their own vehicles,
are responsible for their maintenance, and can use the
vehicles for other purposes. See 326 NLRB at 891. Ac-
cordingly, this factor weighs in favor of finding inde-
pendent contractor status.
We also find that the method of compensation, which
allowed for a degree of entrepreneurial control, supports
a finding that the carriers are independent contractors.
Critical to the Board’s finding of employee status in
Roadway was the finding that the employer there tightly
controlled the drivers’ compensation, such that the driv-
ers did not have much opportunity to affect it—either
positively or negatively. See 326 NLRB at 851. Con-
versely, in Dial-A-Mattress the Board found that the
drivers had much greater ability to impact their own in-
come, thereby demonstrating the entrepreneurial nature
of their employment. See 326 NLRB at 891–892.
In the instant case, we find that the carriers have the
ability to impact their own compensation. Most impor-
tantly, the carriers can hire full-time substitutes and hold
contracts on multiple routes. Moreover, the carriers have
complete control over their substitutes’ terms and condi-
tions of employment. Carriers are also permitted to de-
liver other products, including competing newspapers,
while delivering the Respondent’s newspaper. Finally,
the carriers, with help from the Respondent in the form
of free promotional newspapers, can solicit new custom-
ers and thereby increase the profitability of their routes.
These conditions permit a carrier to be an entrepreneur—
enabling carriers to take economic risk and reap a corre-
sponding opportunity to profit “from working smarter,
not just harder.” Corporate Express Delivery Systems v.
NLRB, 292 F.3d 777, 780 (D.C. Cir. 2002).5
Another common law factor that weighs in favor of
finding independent contractor status is the carriers’ per-
formance of their duties without the Respondent’s super-
vision. In Roadway, the Board found that the employer

which the papers had to be delivered, as described above, the carriers
enjoyed significant freedom in how they carried out their responsibili-
ties.
5 Accordingly, we disagree with the judge’s assessment that the car-
riers’ only means of increasing their income was to increase circulation
on their routes. As discussed above, the possibility of substitutes, mul-
tiple routes, and other delivery options add another significant dimen-
sion to the carriers’ entrepreneurial opportunities.
supervised its drivers by means of providing extensive
training and logistical support. 326 NLRB at 851. In
contrast, in Dial-A-Mattress, the Board found it signifi-
cant that the employer did not subject drivers to its work
rules. 326 NLRB at 891. Here, like the drivers in Dial-
A-Mattress, carriers are neither subject to discipline nor
subject to the Respondent’s employee handbook or other
work rules. Accordingly, this factor weighs in favor of
finding independent contractor status.
Finally, the common law factor of a party’s intent with
regard to the nature of the relationship created weighs
strongly in favor of finding independent contractor
status. The parties believed that they were creating an
independent contractor relationship. The carriers’ con-
tracts specify that they create an independent contractor
relationship. Moreover, the carriers were not covered by
any of the Respondent’s employee programs.
We do not disagree with the judge’s finding that sev-
eral of the factors in the parties’ relationship weigh in
favor of employee status. First, the work of the carriers
is an integral part of the business of the Respondent.6
The Respondent is engaged in the publication, distribu-
tion, and sale of a newspaper. These carriers carry out
the last of these functions. This factor therefore militates
in favor of employee status. Second, under the common
law, unskilled work weighs in favor of employee status.
The work performed by the carriers is not particularly
skilled. Third, with respect to the length of time that a
carrier serves, this is not a case where the disputed per-
son is hired for a specific project. The carrier is hired for
an indefinite period. This factor militates in favor of
employee status. Fourth, the common law looks to
whether the principal performs the same work, through
its own employees, as the persons at issue. Here, the
Respondent employs several undisputed employees who
make deliveries. These deliveries, however, are to cus-
tomers who failed to receive their normal delivery.
Thus, while the work is similar to the carriers’, it is not
the same.7
On balance, we find that under the common law test,
as applied in Roadway and Dial-A-Mattress, the factors
weigh in favor of finding independent contractor status.
B. Post-Roadway Cases
We further find, contrary to the judge, that the post-
Roadway cases in which we have found employee status

6 Compare a retail business that “hires” a painter to paint the store.
7 For example, the Respondent’s drivers did not deliver a regular
route, used vehicles supplied by the Respondent, did not have to pro-
vide their own supplies, only worked 5 days a week, were supervised,
and were paid hourly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD480
are distinguishable.8 Several important factors present in
those cases are absent from the instant case. For exam-
ple, in Corporate Express, supra, 332 NLRB 1522, the
employer employed employee-drivers who performed
the same work as the drivers at issue—a factor under the
common law that weighs in favor of employee status. Id.
at 1522. In contrast, the Respondent does not employ
drivers with regular delivery routes. Instead, it has a few
employees who only make occasional redeliveries. Also,
in Corporate Express the workers at issue conducted
their business in the employer’s name and were not per-
mitted to use their vehicles for other business. Id. In
contrast, in the instant case, the carriers were prohibited
from using the Respondent’s logo and can use their vehi-
cles for any purpose. Finally, the workers in Corporate
Express had no opportunity for entrepreneurial gain or
loss. Id. As described above, the freedom to hold multi-
ple contracts and to use substitutes provided the carriers
here with entrepreneurial opportunities.
Similarly, the facts in Slay Transportation, supra, 331
NLRB 1292, are distinguishable. The owner-operators
in Slay Transportation worked under conditions almost
identical to those of the employer’s employee-drivers.
The owner-operators, as well as the employee-drivers,
used the employer’s trailers, were paid on the same basis,
were subject to the same disciplinary system, and re-
ceived the same employee manual. Id. at 1292–1293. In
contrast, in the instant case, the carriers own all their own
equipment, are paid differently than the Respondent’s
other employees, are not subject to any disciplinary sys-
tem, and are not subject to the Respondent’s work rules.
The workers at issue in Slay Transportation also had
much less opportunity for entrepreneurial gain than do
the carriers here. In Slay Transportation, the owner-
operators could only hire substitutes with the employer’s
approval, none of the owner-operators worked for other
employers, and owner-operators were prohibited from
extending credit to customers. Id. The carriers in the
instant case, in contrast, did not need the Respondent’s
approval to hire a substitute, could deliver products for
other entities, and could extend credit to customers.
We also find significant differences between the entre-
preneurial opportunities available for the drivers we
found to be employees in Stamford Taxi, supra, 332
NLRB 1372, and the carriers at issue here. For example,
in Stamford Taxi, the drivers were prohibited from oper-
ating independently or working for another company.
The respondent retained title to the vehicles used by the

8 See Stamford Taxi, Inc., 332 NLRB 1372 (2000); Corporate Ex-
press Delivery Systems, 332 NLRB 1522 (2000), enfd. 292 F.3d 777
(D.C. Cir. 2002) (“Corporate Express”); Slay Transportation Co., 331
NLRB 1292 (2000).
drivers, required that the cabs be uniform in appearance
and display its logo; did not permit drivers to use their
vehicles for their own business or for another cab com-
pany; warned the drivers that personal use of the vehicles
was not covered by insurance; and maintained a fee sys-
tem by which the respondent’s income was directly cor-
related to the drivers’ fares. Id. at 1373. Thus, the driv-
ers’ ability to use their vehicles in service for other em-
ployers was essentially foreclosed. Id. The Respondent
here does not impose such limits on its carriers.
C. Newspaper Carrier Cases
Prior to Roadway and Dial-A-Mattress, the Board con-
sistently found newspaper carriers to be independent
contractors. As discussed above, we do not find that our
reasoning in Roadway and Dial-A-Mattress diminishes
the weight of those earlier cases which addressed both
the right of control along with the other common law
factors.9
For example, in Thomson Newspapers, supra, 273
NLRB 350, the Board found the carriers to be independ-
ent contractors because of the employer’s lack of control
over the carriers’ means of delivering newspapers. For
example, the employer did not subject carriers to a disci-
plinary system, the carriers had discretion to alter their
delivery sequence, and the employer did not supervise
the carriers or monitor their performance. See id. at 352.
In addition, however, the Board looked to factors beyond
the employer’s right of control, such as whether the em-
ployer provided the tools necessary for the job, the
method of payment, and the parties’ intent in creating the
relationship. For example, the Board relied in its analy-
sis upon the fact that the carriers owned their vehicles,
could hire substitute drivers, were not offered fringe
benefits, were hired with the understanding that they
were independent contractors, were not paid a salary or
hourly wage, and could hold other jobs or deliver other
papers. Id. These same factors are present in the instant
case and likewise demonstrate that the carriers at issue
are independent contractors.
Similarly, in finding in Evening News, 308 NLRB 563
(1992), that the carriers were independent contractors,
the Board looked beyond the right of control, to common
law factors such as those in Thomson Newspapers.
Thus, the Board noted that the employer did not deduct
any withholding from the carriers’ compensation, carri-
ers could hire substitutes and helpers, carriers used their
own vehicles without the employer’s logo, and the par-

9 We note that in some of the pre-Roadway cases, although the
Board only articulated the right-of-control test, it looked to other com-
mon law factors in making its determinations regarding independent-
contractor status.
ST. JOSEPH NEWS-PRESS 481
ties signed an agreement that purported to create an inde-
pendent contractor relationship. See id. at 564–565.
These factors all are present in the instant case and thus
lend additional support to our finding that the carriers at
issue here are independent contractors.10
VI. EFFECT OF THE PARTIES’ RELATIVE
BARGAINING STRENGTH
The GCIU contends that the carriers in this case earn
low wages, receive few if any fringe benefits, and have
little or no bargaining power. It argues that the Respon-
dent is the more powerful party in the relationship be-
tween itself and the carriers, and the Respondent there-
fore dictates the parameters of the parties’ agreement for
services. In essence, the argument is that independent
contractors should be deemed employees if their eco-
nomic circumstances are markedly inferior. We cannot
agree. We are constrained by the clear language of the
statute, which extends the Act’s protections to employees
and explicitly excludes independent contractors.
We do not disagree that the Respondent is the stronger
party here. But the Board does not, and cannot, define
the difference between employees and independent con-
tractors by reference to differences in bargaining power.
In United Insurance, the Supreme Court held that Con-
gress’ clear intent was that the Board should apply the
common law test in ascertaining whether an individual
hired for work is an employee or an independent contrac-
tor. Our standards for assessing whether the carriers are
employees or independent contractors are mandated by
Congressional action and controlling Supreme Court
precedent. As long as application of the common law
demonstrates that the terms of hire constitute an inde-
pendent contractor relationship, the carriers will not be
found to be employees.
We have also carefully considered our dissenting col-
league’s argument that the common law test itself re-
quires an analysis of the parties’ relative bargaining
strength and that such an analysis compels a finding that
the carriers are employees. We respectfully disagree. In
fact, the course charted by the dissent is contrary to the
statute, precedent, and common law. Concededly, as the
dissent points out, the legislatures of other countries have
addressed by statute concerns about the status of so-
called “dependent contractors.” But that is not what the
dissent proposes here. Rather, she calls upon the Board
to unilaterally remedy perceived deficiencies in the Act,
and to apply a test not sanctioned by the Congress or the

10 See also Glens Falls Newspapers, Inc., 303 NLRB 614, 616–617
(1991); Asheville Citizen-Times Publishing Co., 298 NLRB 949 fn. 2
(1990); Drukker Communications, Inc., 277 NLRB 418, 421–424
(1985); Fort Wayne Newspapers, Inc., 263 NLRB 854, 855–856
(1982).
Supreme Court. This is not an appropriate exercise of
the Board’s administrative powers. To the extent that the
Board’s application of the common law of agency test
raises similar concerns, it is for Congress, not the Board,
to address such concerns. In sum, although other coun-
tries have provided in their statutes for the concept of
economic dependence, the United States has not done so.
We do not opine about the wisdom of such legislation.
We merely observe that Congress has not so legislated.
It is not appropriate, as advocated by the dissent, for the
Board to implement such an alteration of the legal land-
scape without Congressional direction.
Our colleague argues that the factors to be considered
in determining independent contractor vs. employee
status include factors that are “economic” in nature. She
then posits that “economic dependence” (the disparity
between the parties) is a relevant additional factor under
the common law of agency. We disagree. The common
law of agency, as applied by the Board, does involve an
analysis of a business relationship; consequently, some
of the factors to be considered are obviously “economic”
in nature. But it does not, and under the current state of
the law, cannot, follow that the Board must import eco-
nomic dependence or differences in economic strength as
factors, in applying the common law of agency.11
Our dissenting colleague characterizes our reluctance
to add an additional factor to the common law test for
independent contractor status as “arbitrary.” On the con-
trary, our position respects the bounds of our administra-
tive authority, and is entirely consistent with the Su-
preme Court’s approach in Brotherhood of Railroad
Trainmen v. Jacksonville Terminal Co., 394 U.S. 369,
382 (1969). In that case, cited by our colleague as sup-

11 Member Schaumber notes that, as a practical matter, his dissenting
colleague’s analysis would result in significant instability in an already
factually intensive and difficult area of the law. Disparities in bargain-
ing power between workers offering their services and companies seek-
ing those services vary from one geographic region to another, and may
shift rapidly over time. Moreover, defining the relevant market for any
given job position, assessing the precise levels of supply and demand
within that market, and determining the actual scope of the impact of
such market forces on the particular employment relationship would
involve sophisticated economic and statistical analysis for which the
Board’s regions are ill-equipped. Contrary to the dissent’s contention,
“economic dependency” or relative bargaining power is not a factor
that is either readily ascertainable or quantifiable simply from the terms
of the parties’ agreement. The fact that a party agrees to particular
terms does not mean they were compelled by economic necessity to do
so. Nor, unlike the other common law indicia, is bargaining power
dictated or controlled by the hiring party; it is a by-product of various
and often rapidly fluctuating market forces and cannot be accurately
assessed without reference to those same forces. Thus, even if the
Board believed it had the leeway to rewrite the common law factors
adopted by the Supreme Court, he would find that prudential considera-
tions militate strongly against the inclusion of such an ephemeral and
elusive criterion for assessing employee status.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD482
porting the proposition that the common law is changing
and adaptable, the Court, in fact, looked to Congressional
intent as expressed in the Act, for guidance in interpret-
ing the Railway Labor Act, rather than some broader
legal-economic context. We follow the Court’s lead
here; we find nothing in the Act’s text (or legislative his-
tory to the extent relevant) that dictates including eco-
nomic dependence as a separate factor in assessing inde-
pendent contractor status.
Moreover, contrary to our dissenting colleague, we
find nothing in the precedent that supports importing an
economic dependence factor into the common law test.
Our colleague asserts that the Court’s decision in NLRB
v. Hearst Publications, Inc., 322 U.S. 111 (1944), has not
been totally discredited. Although that may be true, the
Court has made clear that it has totally discredited that
aspect of Hearst that permitted policy considerations to
lead the Board to construe independent contractor status
“in light of the mischief to be corrected and the end to be
attained.” Nationwide Mutual Insurance Co. v. Darden,
503 U.S. 318, 325–326 (1992). Thus, it is clear that
Congress rejected the Hearst approach of deciding “in-
dependent contractor” issues based on policy considera-
tions. In its place, Congress decided that such issues are
to be resolved on the basis of the common law. Conced-
edly, the common law itself is adaptable. However, to
now say that “economic dependence” is to be made a
part of the common law concerning independent contrac-
tors is to allow Hearst factors to creep back into the Act
through the backdoor. We think that this is contrary to
the Congressional overruling of Hearst.
Our position is not inconsistent with our view in
Brown University, 342 NLRB 483 (2004). We said there
that Congress intended the Act to govern relationships
that are fundamentally economic in nature, and not rela-
tionships that are primarily educational. However, the
Taft-Hartley amendments, which specifically excluded
independent contractors from coverage under the Act,
made clear that the Act does not govern every relation-
ship in which one party pays another for services.12 Fur-
ther, as noted above, we agree that many of the factors to
be considered here are economic factors. However, as
discussed above, it does not follow that the factor of dis-
parity in economic power is a factor to be considered.13

12 It is not always the case that the person “hired” has inferior bar-
gaining power. Anyone who has sought to “hire” a plumber to come
out on a weekend to fix an emergency problem has encountered situa-
tions where the person hired has significant bargaining strength.
13 In Brown University, Member Schaumber noted that the graduate
student assistants at issue there “fit poorly” within the common law
definition of “employee.” In his view, however, applying a common-
law test to determine the meaning of “independent contractor” as re-
quired by controlling Supreme Court precedent, is not inconsistent with
In short, the relationship here is an economic one, con-
trary to the educational relationship in Brown. But it
does not follow that all economic relationships are em-
ployment relationships. Some of them, as here, are inde-
pendent contractor relationships.
The cases cited by our dissenting colleague do not
support her assertion that her approach has been adopted
by the courts in their interpretation of other employment-
related statutes. The Supreme Court’s decision in Na-
tionwide Mutual Insurance Co. v. Darden, 503 U.S. 318
(1992), dictated that a common law agency test is to be
followed. Thus, except for cases arising under the Fair
Labor Standards Act, the appropriate test is simply the
common law test. Id. at 325; see also Wilde v. County of
Kandiyohi, 15 F.3d 103, 106 (8th Cir. 1994); Frankel v.
Bally, Inc., 987 F.2d 86, 90 (2d Cir. 1993). The Sixth
Circuit, after initially considering the concept of “eco-
nomic realities,” subsequently made it clear that it “pre-
ferred the common law agency test.” See Shah v. Dea-
coness Hospital, 355 F.3d 496, 499–500 (2004). The
Eleventh Circuit did not resolve the issue of whether
“economic realities” are to be considered. However, the
court did specify that, at most, these economic realities
were simply to be considered in light of fundamental
common law principles. See Daughtrey v. Honeywell,
Inc., 3 F.3d 1488, 1495, 1496 (1993).
Our dissenting colleague cites cases that do not explic-
itly reject consideration of the “economic realities” fac-
tor. But even these cases do not support her assertion
that we must incorporate an assessment of the parties’
relative bargaining strength into our application of the
common law test. For example, independent contractor
status was not even at issue in Roth v. American Hospital
Supply Corp., 965 F.2d 862 (10th Cir. 1992), and Lam-
bertson v. Utah Department of Corrections, 79 F.3d
1024 (10th Cir. 1996).14 In Wilde and Folkerson v. Cir-
cus Circus Enterprises, Inc., 68 F.3d 480 (9th Cir. 1995)
(unpublished), the courts only considered employee
benefits and tax treatment in their assessment of “eco-
nomic realities.” See 15 F.3d at 106; 68 F.3d 480, 1995
WL 608432 at *3. Finally, even in Frankel, where the
Second Circuit acknowledged that a putative independent
contractor’s economic dependence on the hiring party
could be relevant, the court limited that relevance to “ap-
propriate circumstances,” without specifying what those

finding that the Brown University graduate assistants had a primarily
educational relationship with their university. In both cases, the Board
used the appropriate analytic tool to determine whether there was cov-
erage under the Act.
14 In those cases, the question before the courts was which of two
employers employed the workers at issue. The workers’ status as em-
ployees was not contested.
ST. JOSEPH NEWS-PRESS 483
circumstances would be. See 987 F.2d at 90–91; see also
Lambertson, 79 F.3d at 1028. In sum, in none of the
cases cited by our dissenting colleague did the court ac-
tually look to the economic dependence of the worker at
issue to determine whether that worker was an independ-
ent contractor. Neither should the Board.
Even if we were to accept our dissenting colleague’s
incorporation of an economic dependence factor into the
common law test, we would reject her application of that
newly configured test. Our colleague has not only incor-
porated economic dependence as a single factor to be
weighed; she has elevated it to be the determinative fac-
tor. As mentioned, the dissent makes much of the major-
ity’s acknowledgement that some factors in the common
law test point to employee status here. She implicitly
concedes, however, that many factors do not support
such a finding. For example, she does not dispute that
the following factors, which the Board has been directed
by the Supreme Court to consider, support a finding of
independent contractor status: the carriers provide their
own tools, including vehicles, bags, and rubber bands;
the Respondent does not supervise the carriers; the carri-
ers do not do business in the Respondent’s name; and the
Respondent does not impose any disciplinary system,
work rules, or training. In addition, our dissenting col-
league ignores several of the ways, discussed above, that
the carriers can affect the profitability or “economic re-
alities” of their relationship with the Respondent. For
example, the carriers can decide whether to extend credit
to customers who request it; through the selection and
maintenance of a vehicle and the order of delivery, they
can increase their efficiency and reduce their costs; and
they can refuse to deliver to customers who are too re-
mote from their route or whose homes are inaccessible.
Despite the undisputed existence of substantial support
for our conclusion that the common law test and Board
precedent dictate a finding that the carriers are independ-
ent contractors, our dissenting colleague encourages us to
disregard that support because of an alleged disparity in
the parties’ bargaining strength.
Carried to its logical conclusion, our dissenting col-
league would have any person who is economically de-
pendent deemed a statutory employee. Clearly, Congress
did not intend such a result when it amended the Act to
expressly exclude independent contractors from the Act’s
jurisdiction.
Our dissenting colleague speculates as to the likeli-
hood that the Respondent would exercise its power to
curtail the carriers’ entrepreneurial opportunities. But
that is speculation, not evidence. Moreover, according to
the dissent, even if the Respondent were to grant the car-
riers more entrepreneurial opportunities, the carriers still
would be considered employees because the potential for
the Respondent to alter the relationship would be forever
present as a consequence of the Respondent’s greater
bargaining power. Our dissenting colleague, thereby,
forecloses the possibility that a party with greater bar-
gaining power could ever structure an independent con-
tractor relationship. Again, we find such a result con-
trary to the intent of Congress in amending the Act to
exclude independent contractors.
VII. CONCLUSION
Application of the Roadway and Dial-A-Mattress stan-
dards to the carriers in this case establish that they are
independent contractors, not employees: the carriers pro-
vide their own “tools” of work, their vehicles and sup-
plies; they receive little training from the Respondent;
they are not supervised by the Respondent while per-
forming the work; they may hire their own employees;
they may work for more than one party; they can solicit
new business; and they can subcontract their routes to
others. The Union and its amicus focus on the carriers’
asserted lack of bargaining power, and argue that they
should be found to be employees, and therefore afforded
the opportunities to organize on that basis. The status of
persons as employees and independent contractors, how-
ever, does not turn on differences in their relative bar-
gaining power. Instead, when Congress excluded inde-
pendent contractors from the definition of employee set
forth in the Act, it was using that term as it was under-
stood at common law. Based on the application of the
common law standards, we find that the carriers are in-
dependent contractors.
Accordingly, because the carriers are not employees
protected by the Act, we reverse the judge and dismiss
the complaint allegations that the Respondent’s conduct
involving the carriers violated Section 8(a)(3) and (1) of
the Act.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting.
The majority acknowledges that, under the controlling
common-law agency test, there are factors indicating that
the newspaper carriers here are employees, not inde-
pendent contractors: The carriers’ work is integral to the
Respondent newspaper’s business; they are relatively
unskilled; and they are hired for an indefinite period,
rather than for a specific project. But my colleagues in-
sist that the Board cannot rely on evidence that, instead
of being business people engaged in the marketplace, the
carriers are economically dependent on the newspaper.
The newspaper ultimately controls each carrier’s work-
ing conditions through a contract of adhesion. And it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD484
effectively determines the carriers’ entrepreneurial op-
portunities, by controlling the price of the newspapers
the carriers buy and sell, by controlling the growth of the
carriers’ delivery routes, and by controlling the growth of
subscribership.
Contrary to the majority’s view, economic dependence
is a relevant factor in determining employee status under
the National Labor Relations Act, just as it is under other
federal statutes regulating the workplace. The common-
law test, in other words, can accommodate economic
reality. Here, the factor of economic dependence—given
proper weight, along with the other factors the majority
concedes indicate employee status—establishes that the
carriers are statutory employees.
Given the current business trend toward flexible, non-
traditional employment relationships, including the in-
creasing use of “contract labor,” it is imperative that the
Board keep federal labor law current within the statutory
framework established by Congress. In this regard, the
employee/independent contractor issue is fundamental,
because it dictates what legal rights workers have. Other
countries addressing the issue, the economic-dependence
factor in particular, have created explicit statutory cate-
gories, for instance, “dependent contractor” and “em-
ployee-like person,” to resolve the matter. In the United
States, however, the common-law test, as currently ap-
plied in the federal courts, allows us to evaluate eco-
nomic dependence without an amendment of the Na-
tional Labor Relations Act.
I.
The threshold issue of whether a worker is a covered
employee, or an excluded independent contractor, arises
repeatedly in various federal employment-law contexts.
When a statute concerning employment fails to provide a
substantive definition of the term “employee”—the Act,
among others1—the Supreme Court mandates that the
common-law agency test be used to determine whether
an individual is an employee or an independent contrac-
tor. Nationwide Mutual Insurance Co. v. Darden, 503
U.S. 318, 322–325 (1992).2 The Federal courts and the
Board rely primarily on the Restatement (Second) of
Agency, Section 220 (1958) for guidance in applying the
test. The Board has observed that Section 220(2) “refers
to 10 pertinent factors as ‘among others,’ thereby spe-
cifically permitting the consideration of other relevant

1 Sec. 2(3) of the Act defines an “employee” as including “any em-
ployee” and excluding, inter alia, “any individual having the status of
an independent contractor.”
2 The Supreme Court in Darden applied the Employee Retirement
Income Security Act. See also Clackamas Gastroenterology Associates
v. Wells, 538 U.S 440, 444–445 (2003) (Americans with Disabilities
Act).
factors as well, depending on the factual circumstances
presented.”3
Every Federal appellate court that has addressed the
matter has found that economic factors shaping the rela-
tionship between a putative employer and a putative em-
ployee constitute just such an additional relevant consid-
eration in applying the common law test.4 In Frankel v.
Bally, Inc., supra, for example, the Second Circuit made
plain that “factors relating to an individual’s economic
dependence upon the hiring party may be taken into ac-
count under the common law agency test. . . .” 987 F.2d.
at 90.5 As some courts have pointed out,6 the Supreme
Court itself acknowledged the relevance of economic
factors when it included employee benefits and the tax
treatment of employees in its explanation of the com-
mon-law test. See Darden, supra, 503 U.S. at 324. The
Board, too, has endorsed the analysis of economic factors
by acknowledging “entrepreneurial opportunity”—
clearly an economic concept—as relevant under the com-
mon-law test.7
Here, then, it is entirely appropriate to examine the
economic relationship between the Respondent and the
carriers to determine whether the carriers are economi-
cally independent business people, or substantially de-
pendent on the Respondent for their livelihood.
My colleagues “do not disagree that the Respondent is
the stronger party here,” but assert that the “Board does
not, and cannot, define the difference between employees

3 Roadway Package System, 326 NLRB 842, 850 (1998).
4 See Lambertson v. Utah Dept. of Corrections, 79 F.3d 1024, 1028
(10th Cir. 1996) (Title VII); Folkerson v. Circus Circus Enterprises,
Inc., mem. 68 F.3d 480 (9th Cir. 1995) (Title VII); Wilde v. County of
Kandiyohi, 15 F.3d 103, 105–106 (8th Cir. 1994) (Title VII);
Daughtrey v. Honeywell, Inc., 3 F.3d 1488, 1495–1496 (11th Cir. 1993)
(Age Discrimination in Employment Act); Frankel v. Bally, Inc., 987
F.2d 86, 89–91 (2d Cir. 1993) (ADEA). See also Shah v. Deaconess
Hospital, 355 F.3d 496, 499 (6th Cir. 2004) (ADEA and Title VII).
Compare, Roth v. American Hospital Supply Corp., 965 F.2d 862, 867–
868 (10th Cir. 1992) (relying in part on individual’s “considerable
bargaining power in contract negotiations” to find no employee status
under ERISA).
My colleagues seek to distinguish these cases by their particular cir-
cumstances. They miss my point. These cases are cited because the
courts have endorsed the use of economic factors, including economic
dependence, in applying the common law test. These cases are not
cited because they involve virtually identical factual circumstances.
5 Accord: Daughtrey v. Honeywell, Inc., supra, 3 F.3d at 1495. See
also Thomas v. Held, 941 F.Supp. 444, 451 at fn. 9 (S.D.N.Y. 1996);
McFadden-Peel v. Staten Island Cable, 873 F.Supp. 757, 761 at fn. 3
(E.D.N.Y. 1994).
6 Folkerson v. Circus Circus Enterprises, supra; Wilde v. County of
Kandiyohi, supra,15 F.3d at 106.
7 Roadway Package System, supra, 326 NLRB at 851. Indeed, in
Corporate Express Delivery Systems v. NLRB, 292 F.3d 777 (D.C. Cir.
2002), the District of Columbia Circuit recognized the increasing em-
phasis on “entrepreneurial opportunity” in current common-law analy-
ses of the independent contractor question. Id. at 780–781.
ST. JOSEPH NEWS-PRESS 485
and independent contractors by reference to differences
in bargaining power.” This factor, the majority argues, is
immaterial under the controlling common-law test. But
this is not an accurate statement of the law. To the extent
that differences in bargaining power expose a significant
economic dependence of the putative employee on the
putative employer, it is a relevant consideration under the
common law agency test, as I have shown.
It is hard to reconcile the majority’s approach here
with the Board’s recent decision in Brown University,
342 NLRB 483 (2004), which involved the employee
status of graduate student assistants. There, the majority
asserted that the “issue of employee status” is “not to be
decided purely on the basis of older common-law con-
cepts.” Id. at 491 (emphasis added). Instead, the major-
ity focused on the economic relationship—which the
majority found secondary—between the graduate stu-
dents and their university. Id. at 489. Here, in contrast,
the majority is not interested in the economic relationship
between the carriers and the newspaper, but purely in
supposed “older common-law concepts.” My dispute
with the majority in this case is not over whether the
common-law test is controlling, but only as to whether
economic factors may be considered under that test.8
Compare Brown with the recent decision in Cuddeback
v. Florida Board of Education, 381 F.3d 1230 (11th Cir.
Fla. 2004), where the court found that graduate student
assistants were “employees” within Title VII, applying
common law concepts and “tak[ing] into account the
economic realities of the situation.”
II.
Taking economic factors into account in this case
should lead to a finding of employee status. The Re-
spondent newspaper’s substantial economic advantage
over the carriers results in a relationship of economic
dependence on the newspaper. It is persuasive evidence
that the carriers are employees, not independent contrac-
tors.
The relationship between the newspaper and each car-
rier is governed by a contract of adhesion in the newspa-
per’s favor. It is primary evidence of the newspaper’s
contractual right, and power, to control the relationship.
For example, the standard contract that the Respondent
presents to each carrier states that the newspaper can
terminate the agreement “for cause” (undefined) without
notice. More significantly, the contract affords the
newspaper the right to change any of the contract’s terms

8 Member Walsh and I dissented in Brown University, supra. In our
view, it was clear both that under the common-law test, graduate stu-
dents are statutory employees and that “economic realities” supported a
finding of statutory coverage. 342 NLRB 483, 495–496 fn. 10.
unilaterally on 30 days notice. No corresponding contrac-
tual right of modification is provided to the carrier.9
In the basic economic mechanism between the parties,
the Respondent sells newspapers to the carrier, and the
carrier resells them to subscribers along a predetermined
delivery route. The Respondent’s contract with the car-
rier sets the wholesale price at which the Respondent
sells newspapers to the carrier. The Respondent also sets
the retail price for sale to subscribers; it is printed on the
front page of each newspaper. In addition, the Respon-
dent has the unilateral power to change the wholesale
price on 30 days notice. Therefore, the price of the prod-
uct that the carrier sells to customers is fully controlled
by the Respondent—and, with it, a key component of the
carrier’s profit margin. This basic transaction between
the Respondent and the carrier manifests the carrier’s
fundamental business dependence on the newspaper. It
precludes any opportunity for the carrier to independ-
ently enhance his profits based on the market value of his
product.
Conceivably, a carrier can increase his profit by
enlarging his delivery route or by taking on multiple
routes. But the Respondent, not the carrier, holds a pro-
prietary interest in each route. The newspaper determines
every delivery route and can alter the route unilaterally if
it chooses—for example, if the Respondent decides that
the route is too large. In this way, the Respondent main-
tains essential control of a route’s value to the carrier.
Any realistic opportunity for the carrier to enhance his
earnings by extending his route or servicing multiple
routes is sharply circumscribed and dependent on the will
of the Respondent.
Individually or collectively, none of the factors to
which the majority points, tips the balance in favor of
finding independent-contractor status:
(1) The majority observes that a carrier can personally
solicit new customers and thereby independently build
the value of his route. However, the Respondent provides
free newspapers to the carriers to lure new subscribers,
and the Respondent runs periodic promotional campaigns
during which the carriers distribute the free newspapers.
The Respondent also solicits new customers through
telemarketing. Ultimately, as the judge pointed out, most
new business results from customer calls directly to the
Respondent, not from carrier contacts. Thus, the Respon-
dent’s efforts, not the carrier’s, appear to constitute the
primary basis for enhancing subscribership on a carrier’s

9 Contrary to my colleagues’ view, the fact that the contract labels
the carrier an “independent contractor” deserves little weight, in view
of the newspaper’s unilateral control of contract terms. It may manifest
the Respondent’s aim, but it is hardly an accurate gauge of the carrier’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD486
route. Again, this marks the carrier’s economic depend-
ence on the Respondent.
(2) My colleagues also find that nothing in the parties’
contract precludes a carrier from delivering other prod-
ucts while on his route, even competing newspapers. In
addition, they note that a carrier can hire substitutes to
service his routes. This creates, at most, the appearance
of independent entrepreneurial opportunity for the car-
rier. The Respondent has the power to terminate such
activities on no more than 30 days notice. It certainly
would do so the moment its own profitability in the route
is threatened, whether by the sale of competing products
or by a substitute’s poor service.
(3) The majority points out that the carriers control the
means of delivery, i.e., they provide their own vehicles.
However, the Respondent subsidizes the carriers by pay-
ing a portion of their gasoline costs. The majority also
observes that the carriers are free to hold other jobs.
However, as the judge found, delivery of the Respon-
dent’s newspaper is the primary source of employment
for most of the carriers. Thus, both of these matters fur-
ther evince the carriers’ dependence on the Respondent.
In sum, the carriers’ entrepreneurial opportunities are
largely illusory: they exist at the newspaper’s pleasure
and they require the newspaper’s support.10 Conse-
quently, the carriers depend substantially on the Respon-
dent’s discretion, not simply their own efforts, for their
economic success or failure.11
The majority concedes that there is considerable evi-
dence otherwise demonstrating that the carriers are em-
ployees, rather than independent contractors. The carri-
ers’ delivery work is an integral part of the newspaper’s
business. They are relatively unskilled laborers. They are
hired for an indefinite period rather than for a specific
project. The newspaper retains other, undisputed em-
ployees who perform work similar to the carriers’.
Moreover, as the judge found, the newspaper dictates the
carriers’ days of work and delivery times, and maintains
the financial records that support the carriers’ work.
When these factors are matched with the evidence es-
tablishing the carriers’ economic dependence on the

10 “[I]f a company offers its workers entrepreneurial opportunities
that they cannot realistically take, then that does not add any weight to
the Company’s claim that the workers are independent contractors.”
C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 860 (D.C. Cir. 1995).
11 The majority protests that there is no evidence that the Respondent
would actually exercise its power to curtail the carriers’ entrepreneurial
opportunities. However, it is well established that the right, not the
exercise, of control over workers’ manner and means of job perform-
ance is critical in the independent-contractor analysis. See C.C. East-
ern, Inc. v. NLRB, supra, 60 F.3d at 860. The record establishes that the
Respondent has the right to control not only entrepreneurial opportuni-
ties, but every other significant facet of the carriers’ work, in particular
by its ability to unilaterally alter the carrier contract.
newspaper, the result is clear under the common-law
agency test: the carriers are employees under Section
2(3) of the Act.
III.
In analyzing the difference between an “employee”
and an “independent contractor,” the federal courts have
established that the current common-law agency test can
accommodate the economic dependency question quite
adequately.12 Labor and employment laws in other in-
dustrialized countries have recognized the significance of
economic dependency as well.13 In Canada, for example,
collective-bargaining rights for “dependent contractors”
are specifically covered by statute. In Germany, em-
ployment and labor statutes recognize “employee-like
persons” as employees for purposes of the law. Similar
legal developments are ongoing in Sweden.14 These
statutory categories address modern employment rela-
tionships in which the worker, although not reflecting all
of the traditional markers of an “employee,” is economi-
cally dependent on the company, unlike a true independ-
ent contractor. Similarly, the Board needs to update its
application of the common law test to properly address
current labor market trends and their impact on how em-
ployment relationships are actually structured.
The majority contends that consideration of the eco-
nomic-dependence factor is “contrary to the statute,
precedent, and common law.” That contention misun-
derstands the Act, our precedent, the common law, and
my position here. Section 2(3) of the Act does not define
“independent contractor.” The Act’s legislative history,
of course, makes clear that the Board must consider the
common-law test for independent-contractor status.
Congress presumably understood that the “common law
has always been dynamic and adaptable to changing
times. . . .” Brotherhood of Railroad Trainmen v. Jack-

12 In addition to the case precedent discussed in part I above, see
Burdick, Principles of Agency Permit the NLRB to Consider Additional
Factors of Entrepreneurial Independence and the Relative Dependence
of Employees When Determining Independent Contractor Status Under
Section 2(3), 15 Hofstra Lab. & Employment L.J. 75, 125–131 (1997).
13 It is entirely appropriate to review relevant legal developments in
other countries in evaluating the state of the law in the United States.
See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Thompson v. Okla-
homa, 487 U.S. 815, 830–831 (1988).
14 See Lobel, The Slipperiness of Stability: Contracting for Flexible
and Triangular Employment Relationships in the New Economy, 10
Tex. Wesleyan L. Rev. 109, 134 (2003). Legislative changes of this
kind have, in the past, been suggested for the National Labor Relations
Act as well. See Linder, Towards Universal Worker Coverage Under
the National Labor Relations Act: Making Room for Uncontrolled
Employees, Dependent Contractors, and Employee-Like Persons, 66 U.
Det. L. Rev. 555, (1989). In my view, the Act need not be amended.
The statute itself incorporates the developing common law, allowing
the Board—indeed, requiring it—to consider economic realities insofar
as the common law does in this area.
ST. JOSEPH NEWS-PRESS 487
sonville Terminal Co., 394 U.S. 369, 383 (1969). The
Supreme Court, in turn, has observed that “[i]n doubtful
cases, resort must still be had to economic and policy
considerations to infuse §2(3) with meaning.” Allied
Chemical & Alkali Workers Local 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 168 (1971). Indeed, the com-
mon-law test incorporates “economic considerations,”
our decisions take account of such considerations, and
the majority seems to acknowledge as much.
My colleagues, however, draw the line at considering
economic dependence in determining independent-
contractor status. Nothing in the Act, Board precedent,
or the nature of the common-law test supports this step.
To be clear, the Board cannot treat economic dependence
as the determinative factor in the independent-contractor
analysis. That position is foreclosed by Congress’ rejec-
tion of the approach reflected in the Supreme Court’s
decision in NLRB v. Hearst Publications, Inc., 322 U.S.
111 (1944), in favor of the common law test. See Dar-
den, supra, 503 U.S. at 324–325.15 Nonetheless, the Su-
preme Court has said that the approach of Hearst Publi-
cations has “not . . . been totally discredited.” Allied
Chemical & Alkali Workers Local 1, supra, 404 U.S. at
168. It is therefore appropriate to treat economic de-
pendence as one relevant factor among many, “with no
one factor being decisive.” NLRB v. United Insurance
Co. of America, 390 U.S. 254, 258 (1968).16
The majority’s present approach to the common law
test sifts through the relevant evidence, but chooses to
address only those economic factors that support a find-
ing of independent contractor status for the carriers.
Thus, the majority finds the “entrepreneurial opportuni-

15 In Hearst, the Supreme Court observed that “[f]ew problems in the
law have given greater variety of application and conflict in results than
the cases arising in the borderland between what is clearly an em-
ployer-employee relationship and what is clearly one of independent,
entrepreneurial dealing.” 322 U.S. at 121. It predicted that adoption of
the common-law test—”import[ing] this mass of technicality” into the
NLRA—”would be ultimately to defeat, in part at least, the achieve-
ment of the statute’s objectives,” because “[m]yriad forms of service
relationship, with infinite and subtle variations in the terms of employ-
ment, blanket the nation’s economy.” Id. at 125–127.
16 Contrary to Member Schaumber’s contention, “prudential consid-
erations” do not counsel against recognizing economic dependence as a
relevant factor. No “sophisticated economic and statistical analysis” of
labor markets is required. The inquiry, rather, focuses on the readily-
ascertainable facts of the particular economic relationship at issue, such
as the contract of adhesion here between the newspaper and the carri-
ers, as well as the newspaper’s ability to effectively determine the
carriers’ entrepreneurial opportunities. In other words, economic de-
pendence is analyzed as it is concretely manifested, not in the abstract.
Because every proceeding involving an alleged independent-contractor
relationship is already fact-intensive and case-specific—the Board
would never hold, for example, that newspaper carriers as a class are
independent contractors—considering economic dependence would
make only a marginal difference in the complexity of the inquiry.
ties” afforded to the carriers in their relationship with the
Respondent a significant indication that they are inde-
pendent contractors. Yet my colleagues reject outright
any consideration of the economic dependence of the
carriers on the Respondent for their livelihood, a factor
that undermines the viability of the carriers’ supposed
entrepreneurial opportunities. That position is arbitrary.
IV.
Although the carrier-newspaper employment relation-
ship in this case is not a new one, similar contractor-like
relationships have become prevalent in more and more
workplaces as companies increasingly seek flexibility in
a more competitive economic climate. The economic
dependency evident in many of these “contract labor”
relationships makes the question of labor law coverage
worthy of a fresh evaluation.17 It is critical, then, for the
Board to acknowledge the role that economic depend-
ency plays in both traditional and newer, nontraditional
employment relationships. As developing business prac-
tices blur the distinction between a classic employee and
a classic independent contractor, the Board must ensure
that the rights guaranteed by the Act do not erode for
workers Congress intended to protect.
My colleagues, however, have chosen to apply a rigid,
outdated version of the common law agency test, one
which ignores relevant economic factors and contradicts
the true spirit of the common law: flexibility and growth
to match a society in constant development.18 As a re-
sult, the Board is now out of step with present legal
trends, both in this country and worldwide. Workers
who not only would benefit from the Act’s protection,
but who are legally entitled to it, will bear the conse-
quences.
Lyn R. Buckley, Esq. and Daniel G. Zarate, Esq., for the Gen-
eral Counsel.
L. Michael Zinser, Esq. and Matthew Salada, Esq., for the Re-
spondent.
DECISION1
ALBERT A. METZ, Administrative Law Judge. The issues pre-
sented are (1) whether the Respondent’s newspaper carriers and
haulers are employees or independent contractors, and (2)
whether certain actions of the Respondent involving carriers

17 See generally Lobel, The Slipperiness of Stability, supra; Interna-
tional Labor Organization: The scope of the employment relationship,
Report V, International Labour Conference, 91st Session, Geneva,
2003, accessible at http://www.ilo.org/public/english/standards/relm
/ilc/ilc91/pdf/rep-v.pdf.
18 “However much we may codify the law into a series of seemingly
self-sufficient propositions, those propositions will be but a phase in a
continuous growth.” O.W. Holmes, Jr., The Common Law 37 (1881).
1 This case was heard at Overland Park, Kansas, on January 23–25,
March 20–23, and April 10–13, 2001.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD488
violated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act).2 On the entire record, including my observation
of the demeanor of the witnesses, and after consideration of the
parties’ briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is a corporation that has a place of business
in St. Joseph, Missouri, where it is engaged in the newspaper
business. The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I further find that the record shows
that the Teamsters Union Local 460 (the Union) is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. BACKGROUND
The workers in dispute in this case are classified as carriers
or haulers. The Respondent asserts that these persons are inde-
pendent contractors and not covered by the provisions of the
Act. The Government claims these workers are employees
whose union and concerted activities are shielded from unfair
labor practices under the Act. The Government further asserts
that the Respondent committed certain unfair labor practices
involving the carriers. The Respondent denies that any of its
conduct violated the Act.
III. INDEPENDENT CONTRACTOR ISSUE
The carriers deliver newspapers to customers. The haulers
pick up bundles of newspapers at Respondent’s loading dock or
at a remote drop point and deliver them to another yet more
remote drop point for pickup by carriers. Haulers may also have
separate newspaper routes where they deliver directly to cus-
tomers. Both of these classifications will be referred to in this
decision as carriers unless a distinction between the two is nec-
essary for clarity.
The Respondent’s printing plant is located in St. Joseph,
Missouri. Its newspaper is circulated in St. Joseph and the sur-
rounding towns and rural areas. Carriers are responsible for
deliveries on various types of routes. City routes include St.
Joseph and adjoining communities. In addition to home deliv-
ery, carriers may stock newspaper racks and make deliveries to
news, dealers. Some home delivery routes also include taking
bundles to yet a further location for a drop. State carriers de-
liver the rural routes and to remote towns. Some State routes
also include racks, dealers, and deliveries to a post office for
shipment of papers.
Kevin Smith is the Respondent’s circulation department di-
rector. Managers and supervisors under his direction include
city marketing director, single copy sales manager, city route
manager, city home delivery manager, approximately 11 dis-
trict managers, and 8 depot managers. The circulation depart-
ment is responsible to see that the newspaper is distributed to
readers and the associated service functions involved in this
aspect of the business.
When carriers are hired they do not fill out applications or go
through the drug testing procedure required of Respondent’s

2 29 U.S.C. § 158 (a)(1) and (3).
employees. The carriers are not subject to the Respondent’s
employees’ rules and regulations as set forth in its employee
policy handbook.
Carriers are solicited for hire by newspaper advertisements
and word-of-mouth. District managers typically talk to prospec-
tive carriers about employment and the carrier contract that
details the work relationship with the Respondent. The Respon-
dent has three standard contracts that cover the work of carriers,
haulers, and city single copy/rack and dealer carriers.
The carriers’ contracts emphasize they will be working as
independent contractors. The carrier contracts state that “. . .
nothing herein shall be deemed to have created a partnership, a
joint venture, a master servant relationship or employer-
employee relationship between them.” (R. Exh. 54 p. 2 item
15.)
The contracts state that the carrier is granted the nonexclu-
sive right to purchase, sell, and deliver the Respondent’s news-
paper in an area designated by a route number. The carrier is
given the right to control the method and means of delivering
the newspaper.
The carriers sign their contracts as individuals. There is no
evidence that any of the carriers are organized as a corporation,
partnership, or other business entity. Neither was there a show-
ing that the carriers advertise their services, have separate busi-
ness addresses, business licenses, business bank accounts, tax
identification numbers, or maintain workers’ compensation
insurance.
The carriers’ contracts prohibit them from displaying the Re-
spondent’s name on their vehicles. The carriers do not wear
uniforms.
The contracts mandate that the carriers are responsible for
providing their delivery services 7 days a week. The contracts
direct that the carriers deliver their newspapers before 6 a.m. on
weekdays and Saturdays, and before 6:30 a.m. on Sundays. The
carrier’s contract states that carriers are to provide the Respon-
dent with the name of a person who can be called if the carrier
is unavailable “for necessary contacts.”
Carriers normally purchase their newspapers from the Re-
spondent based on a contractual rate and resell the papers at a
retail rate. The carrier agrees that he will purchase sufficient
copies of the newspaper in order to supply the subscribers in his
delivery area. Certain carriers negotiate with the Respondent to
deliver newspapers at a negotiated per piece rate. These deliv-
eries are made to newspaper racks and single copy outlets.
The carriers are responsible for providing a substitute if they
are unable to personally perform their contractual obligations.
The contracts allow carriers to hire helpers and substitutes
without prior approval from the Respondent, but carriers have
no right to assign or subcontract their routes nor can they trade
routes.
The carriers have no interest or property right in the route,
the bundle drop site, or the subscribers. The contracts have a
“product integrity clause” prohibiting carriers from writing on
papers or adding unauthorized advertising material to the
newspapers.
The carriers’ one large investment is the vehicle they need to
perform their deliveries. The carriers must provide their vehi-
cles and as well as the resources needed to operate and maintain
ST. JOSEPH NEWS-PRESS 489
the vehicle, including gas, repairs, and insurance. The Respon-
dent does not require any particular type of vehicle be used. If a
carrier is unable to use his regular vehicle, he is responsible to
obtain a replacement. The Respondent does not provide loaner
vehicles to the carriers nor does it provide any repair service
arrangements for the carriers. They are required to indemnify
the Respondent and are responsible for damages caused by
them or their substitute carriers while delivering newspapers.
The price of gasoline has recently risen dramatically. The Re-
spondent voluntarily initiated a plan whereby it pays subsidies
to the carriers to cover the increased gas cost they bear in oper-
ating their vehicles.
Contracted carriers must purchase their own supplies, such
as rubber bands and bags. These supplies are available through
the Respondent, but carriers are free to purchase them from any
source.
The carriers are not required to purchase any specialized
equipment for their work. The Respondent supplies the chute
and conveyor system for loading the newspapers into the vehi-
cles at the plant. No special licenses are required to do their
work.
Should a carrier default in making his deliveries the Respon-
dent will make arrangements to deliver the route and charge
him for the cost it incurs. Carrier contracts contain provisions
for a bond to cover such costs. Bond payments are deducted
from carriers’ credits each month until the stated amount of the
bond is paid. Respondent sets the amount of the bond. The
record shows that some bonds amounted to $1000 with monthly
deductions for their purchase being around $30. The Respon-
dent exercises its discretion in collecting against the bond. The
Respondent charges carriers the cost of completing their con-
tract when they fail to give 30-day notice before terminating
their routes. This has taken the form of deducting the costs
from route profits and bond monies.
The Respondent may, at its option, terminate the contract
immediately and without prior notice, undertake the carriers’
obligations under the contract and charge him for the reason-
able cost of performing such obligations for the remainder of
the month in which such termination occurs. (R. Exh. 54 p. 2
item 11.) The carrier also agrees to pay the Respondent a ser-
vice charge if a customer complains about a delivery and the
Respondent has to redeliver the newspaper.
Either party must give the other party 30 days written notice
before terminating the contract “without cause.” The Respon-
dent gives 30 days notice before implementing a change in the
terms of the contract. The Respondent has the right to change
the wholesale price in its discretion upon 30 day written notice
to the carrier. Carriers that make deliveries to newspaper racks
lease the racks from the Respondent.
The Respondent has the right to deliver newspapers in the
carriers’ areas. One example of how this may occur is when the
Respondent decides to deliver papers at midday in order to
replenish racks or news dealers that have run short of papers
after the early morning carrier delivery. The Respondent de-
cides where racks are located and what news dealers will re-
ceive papers. The Respondent may eliminate or add newspaper
locations based on its assessment of profitability. The Respon-
dent also decides on the number of papers (the “draw”) that
racks and dealers receive.
Carriers may receive payments from the Respondent or the
customer. Most customers pay in advance for their newspapers.
The carrier contract mandates that the Respondent holds mon-
ies received from paid-in-advance accounts and will credit the
carrier monthly for such payment. The contract does not detail
the operation of the escrow trust account such as how, if at all,
any interest is earned or distributed. The customers who pay in
advance are considered carrier collects and it is the responsibil-
ity of the carrier to obtain that payment. Customers who do not
pay their accounts are given over to the carriers as carrier col-
lect customers.
The contracts establish how much the carrier is charged for
each paper he delivers. Carriers receive a monthly charge sheet
from the Respondent that states the carrier’s debits (e.g., bond
payments, rack rentals, redelivery charges) and credits (e.g.,
paid in advance accounts, gasoline subsidy, and credit for un-
sold papers in racks).
The contracts state that the Respondent may change the
wholesale cost the carriers are charged for newspapers upon 30-
day written notice. The papers are printed with a price on their
face. If the retail price is changed the Respondent will give
advance notice of that change to carriers and customers.
The Respondent posts a list of the sequence in which carriers
will receive their papers for loading at the plant dock. The Re-
spondent instructs carriers as to when they are to make drops in
relation to other duties performed on the route. This includes
instructions as to when mailbags of newspapers are to be deliv-
ered to post offices. The papers come down a metal chute that
directs the papers into the carriers’ vehicle. Carriers at remote
sites pick up their bundles at locations designated by the Re-
spondent as hauler drops. Haulers who pick up bundles at the
dock have message boxes at the dock marked by route number
that is used by the Respondent to pass along instructions to the
haulers.
When carriers start work they are commonly given a route
book or a tape recording that details the delivery points for the
route. The source of this information may be the route manager
or the current route carrier. Managers or the carrier quitting a
route may ride with a new carrier to aid him in learning the
route.
The newspaper bundles contain messages that notify the car-
rier of such things as new customers’ names and addresses,
where the customer wants the paper delivered (e.g., in the drive
way or on the porch), and temporary stops of delivery for vaca-
tioning customers, etc. The Respondent gives the carriers “all
subscriber” lists for their routes that show the address, name,
billing method (carrier collect or office pay), account expira-
tion, phone, and the days for delivery. In addition to these daily
instructions, the Respondent’s managers may send memos to
carriers or talk to them.
The Respondent dictates the product to be delivered to the
customer. Thus, the size of the newspaper, the bundle size and
the number of inserts is determined by the Respondent. The
Respondent determines what promotions will be used to at-
tempt to increase circulation and when these promotions will
occur. The Respondent decides when the carriers are to insert
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD490
supplements, such as advertising into newspapers. In November
1999, when the Respondent decided that the carriers were to
insert ad sections into the Sunday papers it notified employees
how much it would pay for these new duties.
Single copy rack and dealer carriers pick up route sheets and
an electronic wand at the Respondent’s dock each day. The
wands (The Bellatrix system) electronically record information
relating to each rack including the number of newspapers and
time of delivery to a rack. The carriers return the wands to the
Respondent at the end of each shift. In 2000, carriers selling
papers in racks filed monthly reports, attached the headers of
unsold papers, and were reimbursed for the unsold papers. The
Respondent bills news dealers and arranges for the collection of
money for these accounts. The Respondent determines the loca-
tion of the racks and the dealers and informs the carrier of these
changes. The Respondent sets the price of the papers purchased
from newspaper racks.
The Respondent determines the geographical area covered
by a particular route. The Respondent, in its discretion, may cut
or enlarge a route. A particular route may not be exclusive to a
given carrier. Thus, deliveries to racks or retail outlets may be
part of a different route even though it is within another car-
rier’s territory.
The Respondent issues the carriers IRS 1099 forms each year
showing their earnings. No income taxes are withheld from the
carriers’ earnings. Carriers testified that they file schedule C
business tax returns. There was no evidence that carriers paid
unemployment or workers compensation payments for them-
selves or their substitutes. Nor was there any showing that the
Respondent paid such monies on behalf of the carriers.
IV. ANALYSIS OF INDEPENDENT CONTRACTOR ISSUE
Section 2(3) of the Act provides that the term “employee”
shall not include “any individual having the status of an inde-
pendent contractor.” The Board in Roadway Package System,
326 NLRB 842 (1998), recently reexamined the test for deter-
mining whether an individual is an employee or an independent
contractor. The Board used the common-law agency test as
applied by the Supreme Court in NLRB v. United Insurance Co.
of America, 390 U.S. 254 (1968), and considered all of the
incidents of the relationship between the company and certain
drivers to conclude that those drivers were employees under
Section 2(3) of the Act.
The test the Board adopted in Roadway is the multifactor
analysis of the Restatement (Second) of Agency, Section 220,
which lists the following 10 factors “among others” that should
be considered:
1. The extent of control the employer exercises over
the individual’s work details.
2. Whether the person employed is engaged in a dis-
tinct occupation or business.
3. Whether the work of that occupation is usually per-
formed under an employer’s supervision.
4. The skill required by the occupation.
5. Whether the employer or the worker supplies in-
strumentalities, tools, and the place of work.
6. The length of employment.
7. Whether payment is made according to the time
spent or by the job.
8. Whether the work is part of the employer’s regular
business.
9. Whether the parties believe they are creating an
employer-employee relationship.
10. Whether “the principal is or is not in the busi-
ness.”
The Board in Roadway, supra at 850, stated that the “right to
control” the manner and means of the work performed by the
individual whose status is at issue is not the exclusive consid-
eration in making an employee versus independent contractor
determination:
While we recognize that the common-law agency test de-
scribed by the Restatement ultimately assesses the amount or
degree of control exercised by an employing entity over an
individual, we find insufficient basis for the proposition that
those factors which do not include the concept of “control”
are insignificant when compared to those that do.
In weighing the criteria set forth by the Board in Roadway
the following factors stand out about the relationship between
the Respondent and the carriers. The carrier contracts are
clearly focused on establishing the carriers as independent con-
tractors. The Respondent does not withhold income taxes from
amounts owed the carriers. The carriers are given 1099 IRS
forms by the Respondent and they file their income taxes as
schedule C business operations.
The carriers perform a vital function that is an integral part
of the Respondent’s regular business—delivering its daily
newspaper to the customers. Should a carrier fail to perform the
Respondent will assume the responsibility for fulfilling his
obligations and charge the carrier for that service. If a customer
complains about not getting a delivery the Respondent assumes
the responsibility of successfully making the delivery. The
carriers perform their work using their own vehicles for which
they are totally responsible. The carriers’ major business ex-
pense is their motor vehicles. They must bear the cost of main-
taining and insuring their vehicles. The Respondent pays them
a fuel differential to help them absorb the recent higher cost of
gasoline. They do not wear uniforms or attach insignia to their
vehicles so as to identify them as working for the Respondent.
The carriers have discretion in how they deliver their routes and
provide their own substitute carriers on terms that they inde-
pendently establish. The carriers are allowed the flexibility to
run their routes in the order that best suits them. The Respon-
dent can make changes to the nonexclusive routes resulting in
the diminution of carriers compensation.
The Respondent’s daily newspaper must be delivered in a
timely manner to its customers. This is a critical function of the
Respondent’s business because of the time sensitive nature of
its product. The Respondent establishes a daily deadline for the
carriers to complete their routes. The Respondent defines the
carriers’ nonexclusive routes. The carriers are confined to their
routes but the Respondent reserves to right to change and in-
trude on these areas in its discretion. If customers complain
about the delivery of their papers, the Respondent notifies the
carriers to correct the problem. If there is a problem with de-
ST. JOSEPH NEWS-PRESS 491
creased circulation the carrier may be held accountable even
though the contracts do not specify that a carrier is responsible
for maintaining any stated level of circulation. If a paper is not
delivered in the immediate St. Joseph area the Respondent will
have its own personnel to deliver another newspaper. The Re-
spondent’s notifies the carriers of new customers and changes
requested by existing customers.
The carriers have little ability to significantly increase the
amount they earn by entrepreneurial efforts. The contracts set
the wholesale price the carriers will be paid for their newspa-
pers. The carriers’ compensation, in general, is based on the
number of papers or bundles they deliver considering the dis-
tance they must drive on their assigned routes. The newspapers
bear a printed price on their face. The record does not reflect
that it is common for carriers to vary from that printed price
when charging customers. Carriers can increase their income by
soliciting business, but the record indicates that most new busi-
ness comes from customer calls to the Respondent. This is then
routinely passed on to the carrier with instructions to start the
delivery or change it depending on the wishes of the customer.
The Respondent takes the initiative to promote its product with
periodic sales campaigns and the carriers are encouraged to
participate in these efforts. Much of the carriers’ effort consists
of delivering the promotional papers to nonsubscribers.
Carriers testified that they do not consider themselves inde-
pendent newspaper delivery businesses. Other than filing
schedule C business tax returns, little of their conduct supports
a demonstration that they have set themselves up as independ-
ent businesses. They do not incorporate or form other business
entities. Nor do they get business licenses, maintain business
checking accounts, establish business offices, etc. Other than
some few carrier collects, the Respondent maintains the book-
keeping system by which the carriers are compensated. The
Respondent is a direct link to the customer in soliciting busi-
ness, taking their phone calls, and passing on to the carriers the
customers’ wishes. The Respondent regularly communicates
instructions to the carriers regarding their routes and service.
Bundle top instructions, written and verbal instructions from
managers, by phone and in person, the responsibility of the
managers to emphasize “customer service” with the carriers are
examples of the Respondent’s influence on the carriers daily
work.
The Respondent has its own part-time employees in the St.
Joseph area that do redelivery of newspapers to locations where
there was a problem with the carriers’ original delivery. The
Respondent also directly employs drivers that make hauls of
newspaper bundles to the St. Joseph mid-town depot and to the
post office for delivery by mail. Respondent has its employees
resupply news dealers and racks during the day after the carri-
ers have made their early morning deliveries.
The length of the carriers’ employment is in effect open-
ended. The contract provides for a year-to-year term of em-
ployment absent either party terminating the contract under the
stated terms. The carriers, for the most part, are engaged in the
delivery of the Respondent’s newspaper as their primary source
of employment. The skill that is required to perform the carrier
and hauler functions is not extraordinary. These workers are
quickly trained in their routes and responsibilities. They must
be able to drive common vehicles and only are required to pos-
sess a commercial driver’s license. Their jobs do not call for
uncommon expertise.
The carriers and haulers do not operate independent busi-
nesses and they devote virtually all of their time, labor, and
equipment to providing the essential functions of the Respon-
dent’s newspaper business. The Respondent provides the con-
tract and unilaterally changes its terms with ease. These work-
ers receive some training by the Respondent and are instructed
as to pickup order and delivery deadlines in their 7 day a week
work. They have a nonexclusive right to delivery in their areas
with little realistic entrepreneurial opportunity for gain or loss.
The Respondent does the bookkeeping and instructs the carriers
on the specifics of who gets a paper. Respondent has its own
employees do similar delivery work. All of these factors weigh
heavily in favor of employee status.
While the contracts signed by the carriers and haulers indi-
cate they have an independent contractor relationship with the
Respondent, the actual operation of the relationship, when
measured by the standards cited in the Board’s cases, demon-
strates a different arrangement. NLRB v. Amber Delivery Ser-
vice, Inc., 651 F.2d 57, 63 fn. 7 (1st Cir. 1981) (“That each
driver expressly disclaimed the status of employee in his con-
tract with Amber although relevant as evidence of ‘an assump-
tion of control by the one and submission to control by the
other,’ Restatement (Second) of Agency s 220, comment m, at
492 (1957), is by no means dispositive.”). I find that the Re-
spondent’s integration and control of the carrier and hauler
work necessitates the conclusion that these workers are “em-
ployees” within the definition of Section 2(3) of the Act. Cor-
porate Express Delivery Systems, 332 NLRB 1522 (2000);
Stamford Taxi, Inc., 332 NLRB 1372 (2000), Slay Transporta-
tion Co., 331 NLRB 1292 (2000); Roadway Package System,
326 NLRB 842 (1998), NLRB v. United Insurance Co. of Amer-
ica, 390 U.S. 254, 258 (1968).3
V. ALLEGED VIOLATIONS OF THE ACT
In approximately October 1999 the Respondent’s carriers
and haulers contacted the Union about becoming their collec-
tive-bargaining representative. The Union shortly thereafter did
commence an organizing drive among these workers. The chief
proponents of the Union’s effort were carriers DeWayne Flint,
Ivana Calhoun, Bonnie and Tony Landes, Regina and Ronnie
Whitaker, and John Aldridge.
A. Dewayne Flint
1. Respondent establishes a safety zone
In early October 1999 the Respondent opened a new printing
facility in St. Joseph known as Mitchell Woods. It was common
for carriers, including DeWayne Flint, to wait at this facility to

3 Compare, Dial-A-Mattress Operating Corp., 326 NLRB 884
(1998) (operators ran independent businesses) and a series of newspa-
per cases that were apparently analyzed on the basis of the “right to
control test”: Evening News, 308 NLRB 563 (1992); Long Beach
Press-Telegram, 305 NLRB 412 (1991); Asheville Citizen-Times Pub-
lishing Co., 298 NLRB 949 (1990); Thomson Newspaper, 273 NLRB
350 (1984); Fort Wayne Newspapers, 263 NLRB 854 (1982), The
Oakland Press, 249 NLRB 1081 (1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD492
receive their newspapers according to the Respondent’s loading
order.
Flint was a leader in the union organizing campaign. He
talked to fellow carriers about joining the Union, passed out
union buttons, bumper stickers and flyers. He solicited carriers’
signatures on union authorization cards and displayed union
insignia on his vehicle. Flint attended union meetings and urged
other carriers to also attend. Flint also discussed the union with
some of the Respondent’s mail room and pressroom employees
who worked at Mitchell Woods.
In late November 1999 the Respondent painted a yellow
safety line on the floor of the Mitchell Woods plant. Carriers
were instructed to stay outside of perimeter of the yellow line
because of safety considerations. The borders of the line al-
lowed carriers to enter the plant to have access to the dock,
their message boxes, a rest room, and candy and pop machines,
but no other parts of Respondent’s indoor facilities.
Carrier John Aldridge testified he was aware that carriers
were not normally suppose to cross the yellow line. He ac-
knowledged, however, that he was told to cross that line on
Saturday nights to get his paper inserts and use Respondent’s
equipment to haul the inserts out to his vehicle.
On January 27, 2000, the Respondent sent a memo to carri-
ers instructing them:
For your safety and due to concerns of our insurance carrier
we ask that when at the Mitchell Woods production facility
you confine yourselves to the designated area for carriers.
Those areas are the dock (where you pull your vehicles in),
and inside the building only as far as the yellow lines. There
are soda machines and a bathroom for your use located inside
the yellow lines. (GC Exh. 3.)
The Government alleges that the Respondent’s rule prohibit-
ing carriers from crossing the yellow line was designed to dis-
courage discussion of the union. As discussed in detail below,
the Respondent relies upon Flint’s violation of the safety line as
a reason he was discharged. I find that the Respondent credibly
demonstrated that the yellow line was established for safety
considerations. The plant was shown to contain moving vehi-
cles, large rolls of paper and working` machinery. I find that the
Respondent did not violate Section 8(a)(1) of the Act when it
established the rule that carriers should not cross the yellow
plant line.
2. Flint’s restricted rights to enter Respondent’s premises
and his contract termination
In late December 1999 Flint placed a flyer announcing a un-
ion meeting on bundle tops. The meeting notices were placed
only on the top of the carriers’ first bundle of newspapers and
were not inserted inside of the newspapers for delivery to cus-
tomers.
Carrier Doug Walker testified that Flint told him that he had
placed the union announcement on the bundles. Walker relayed
this information to Respondent’s State manager, Chris Zey.
There were calls from carriers to Respondent’s management
about the union flyer. Zey also reported what he knew about the
situation to Kevin Smith. The Respondent took no immediate
action against Flint.
On January 4, 2000, City Home Delivery Manager Sheila
Switzer issued a memo to carriers reminding them that unau-
thorized materials should not be placed in or on the Respon-
dent’s newspapers. The memo noted that, “Violations of this
kind could result in termination of the agreement between you
and the News-Press.” (GC Exh. 24.) Kevin Smith testified that
in 1998, the Respondent terminated its contract with another
carrier after it was determined that she had inserted unauthor-
ized material in the newspapers she delivered to customers. The
material dealt with a local school bond issue.
Flint had the habit of going into the plant to get a soda pop
from machines. He testified that some nights he would sweep
the dock area and that he also would be in the plant on occasion
to place inserts in Sunday papers. This routine changed on ap-
proximately January 30, 2000, when District Manager Larry
Sexton, telephoned Flint and told him that he was not allowed
to come on to the Respondent’s premises until after 2 a.m. Sex-
ton told Flint that if he ignored this order he would be escorted
off the premises by the police. Following this instruction, Flint
thereafter would wait in a parking lot next door until after 2
a.m. to load his papers.
On about January 30 the Respondent gave Flint notice that
his route was being terminated. He finished working his route
at the end of February. In early February 2000 Flint was wait-
ing for his newspaper load time in a nearby parking lot. Sexton
drove up next to Flint and asked if his route termination would
materially hurt him. Flint told Sexton it would not as his wife
paid the bills. Flint asked Sexton why his contract was being
terminated. According to Flint, Sexton replied it was because
he had “threatened” a pressman. Flint asked who he had sup-
posedly threatened and Sexton would not tell him. The Re-
spondent offered no evidence that Flint had ever threatened a
pressman. On cross-examination, Flint was presented with his
affidavit he gave to the Board during the investigation of the
case. The affidavit made no mention of Sexton stating that Flint
was being fired for having threatened a pressman. Although
Sexton testified at the hearing he was not questioned about the
parking lot conversation with Flint nor did he deny telling Flint
that the reason he was terminated was because of threatening a
pressman. Based on Flint’s demeanor and his uncontroverted
testimony of what Sexton said to him on this occasion, I credit
Flint’s testimony that Sexton told him the alleged threat led to
his discharge.
Sexton testified that there were two reasons Flint’s carrier
contract was terminated. First, there was a safety issue of Flint
crossing the yellow line in the plant and going in the press area.
Sexton testified he was “aware of the problem with (Flint) go-
ing in around the press.” Sexton recalled seeing Flint in the
press area talking to Respondent’s employees several times. He
testified at first that he could not recall when this occurred, but
later testified that he thought it was in November and Decem-
ber. Sexton was concerned that there was a danger factor of
Flint or an employee being injured because of the machinery,
equipment and large paper rolls that were in the plant restricted
area. There was no testimony that Sexton or any other supervi-
sor told Flint personally to leave the area or warned him against
being in the area.
ST. JOSEPH NEWS-PRESS 493
Sexton testified about the second reason for Flint’s termina-
tion:
Another issue was placing unauthorized materials on . . . the
bundles. We had other carriers complaining. . . . on the park-
ing lot complaining that they didn’t understand what he was
talking about. You know, “what’s going on? Why’s he com-
ing to our car talking to us?” And there was an arousal going
on with other carriers not understanding what was happening.
The main issue was safety.
(Tr. 860.)
Sexton acknowledged that some of the carriers told him that
Flint was talking to them about the Union and this caused
“more confusion than anything in what he was trying to get his
point across with.” Sexton testified that because of Flint’s talk-
ing to the carriers, “My concern was, my God, I’m going to
lose a carrier. . . .” Sexton testified that he, Smith and Switzer
met to discuss Flint shortly before they mutually decided to
terminate his contract. He recalled that Smith reported Flint
was putting unauthorized materials on the bundles. Sexton
stated his personal “big concern being new (in the job) and not
having carriers, I was worried I was going to lose carriers be-
cause they were getting all stirred up, not understanding what
. . . was going on. Going from car to car.” (Tr. 862.)
The General Counsel has the initial burden of establishing
that union or other protected activity was a motivating factor in
Respondent’s action alleged to constitute discrimination in
violation of Section 8(a)(3). The elements commonly required
to support such a showing of discriminatory motivation are
union activity, employer knowledge, timing, and employer
animus. Once such unlawful motivation is shown, the burden of
persuasion shifts to the Respondent to prove its affirmative
defense that the alleged discriminatory conduct would have
taken place even in the absence of the protected activity. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983); Elec-
tromedics, Inc., 299 NLRB. 928, 937 (1990), enfd., 947 F.2d
953 (10th Cir. 1991); Presbyterian/St. Luke’s Medical Center,
723 F.2d 1468, 1478–1479 (10th Cir. 1983). The test applies
regardless of whether the case involves pretextual reasons or
dual motivation. Frank Black Mechanical Services, 271 NLRB
1302 fn. 2 (1984). “A finding of pretext necessarily means that
the reasons advanced by the employer either did not exist or
were not in fact relied upon, thereby leaving intact the inference
of wrongful motive established by the General Counsel.” Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. sub nom.
705 F.2d 799 (6th Cir. 1982).
Flint’s union activities were well known through his display
of union insignia and talking to other carriers about the Union.
The Respondent admitted hearing complaints of his union ac-
tivities from other carriers and suspected him of putting union
announcements on bundle tops. The timing of his contract ter-
mination was linked to these union activities. As discussed in
more detail below the record as a whole demonstrates the Re-
spondent showed animus for the carriers’ union activities.
Thus, I find that the Government established the prerequisites
to support its assertion that Flint was discharged, at least in
part, because of his union and protected concerted activities.
The Respondent argues that Flint was discharged because he
intruded into the plant-prohibited area and because he placed
the union bulletin on bundle tops. As to the safety concerns
they became paramount after Flint started engaging in union
activity. Sexton testified to observing Flint in the dangerous
plant areas on several occasions in November and December
talking to Respondent’s employees. Yet Sexton took no action
at that time to restrict or warn Flint of such conduct. Carrier
John Aldridge testified he regularly crossed the line to get in-
serts for papers. There is no evidence he was ever warned or
punished for such conduct. The Respondent did become con-
cerned enough, however, after Flint’s union activities became
known, to issue a general “yellow line” reminder memo on
January 27. There is no evidence that Flint ignored that memo
and crossed into the prohibited yellow line area thereafter.
With regard to the union notices on the bundles the Respon-
dent showed it was concerned about this type of activity. It had
discharged another carrier for conduct of putting notices in the
newspapers delivered to customers. While Flint’s actions did
not go that far, the Respondent proved it was concerned about
such activity and prohibits this conduct in its carrier contracts.
The testimony of Sexton, however, shows that the discharge
involved more than placing the union notices on the bundles.
Sexton based the discharge, in part, on the fact that Flint was
upsetting carriers with his union talk. This is a significant ad-
mission that Flint’s union activities played a role in his dis-
charge.
Sexton’s testimony shows that the Respondent advanced an
additional reason for the discharge—that Flint had “threatened”
a pressman. No evidence was produced that this ever happened
and Sexton refused to give any details to Flint when questioned
about the matter. The Respondent’s brief does not assert that
this was a reason for the discharge. Offering shifting defenses
for a discharge is evidence of an unlawful motive. Airport Dis-
tributors, 280 NLRB 1144 fn. 2 (1986).
I conclude that the Respondent has failed to carry its burden
of showing that Flint would have been discharged regardless of
his union activities. I find that the Respondent’s actions in noti-
fying Flint of the termination of his contract on January 31 and
its termination 30 days later are violations of Section 8(a)(1)
and (3) of the Act. Wright Line, 251 NLRB 1083 (1980).
I further find that the Respondent’s January 30 prohibition
against Flint being on the premises before his scheduled load
time was designed to prevent him from engaging in union and
concerted activity. Sexton’s testimony shows that the Respon-
dent was greatly concerned about Flint getting the carriers “all
stirred up” with his union talk. I find this prohibition is a viola-
tion of Section 8(a)(1) of the Act. I also find that when the Re-
spondent relied upon Flint’s breach of the yellow safety line as
one of its reasons for his discharge, the Respondent was dispar-
ately enforcing that rule. I find the disparate enforcement of
that rule against Flint is a violation of Section 8(a)(1) of the
Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD494
3. March—Flint’s removal from the premises
Flint returned to the Respondent’s premises in the first part
of March 2000 after his route was terminated. He testified that
he was there to work as a substitute carrier for Tony Landes. He
also had some money to turn over to Sexton. He spoke to Re-
spondent’s employee Scott Kirschner and Supervisor Larry
Sexton about the money matter and then Sexton asked him to
leave the premises. Flint did not say that he was there to deliver
Landes’ route. Flint refused to leave the Respondent’s premises
without instructions to do so from the police. He told Kir-
schner, “This is a polite way to say, fuck you.” The police were
summoned and Flint was escorted from the premises.
The Government alleges this incident is a separate violation
of Section 8(a)(1) and (3) of the Act. Flint was not an employee
of the Respondent at the time, and did not inform the Respon-
dent he was allegedly present to work as a substitute. I find that
the Respondent committed no unfair labor practice by having
him removed from the premises upon his refusal to leave. I find
that the Respondent’s actions on this occasion did not violate
Section 8(a)(1) and (3) of the Act.
B. Interrogation of Joan Flint
Joan Flint is DeWayne Flint’s sister-in-law. Her husband,
Charles Flint, is a carrier for the Respondent. Joan Flint is not
employed by the Respondent but rather works on the Lieuten-
ant Joe Riverboat Casino at St. Joseph, Missouri. David Guck,
one of Respondent’s admitted supervisors, also worked as a
supervisor on the Lieutenant Joe Riverboat Casino. His duties
included supervising Joan Flint.
Joan testified that in late 1999 or early 2000 she was working
at the casino when Guck engaged her in conversation. He asked
her whether her brother-in-law was prounion. Joan said, “Yes.”
Guck then asked her whether her husband was prounion or not.
She replied, “[T]hat is up to him.”
The Respondent defends against the allegation that Guck’s
questioning of Joan Flint violated the Act by pointing out that
she had a good working relationship with Guck. The Respon-
dent further argues that Guck did not threaten Joan Flint, and,
according to testimony, Guck was just interested in what was
going on.
I find that given Guck’s supervisory status over Joan Flint, as
well as his supervisory position with the Respondent, that his
interrogation of Joan regarding the union sympathies of her
husband and brother-in-law was coercive. I find that the Re-
spondent violated Section 8(a)(1) of the Act by this interroga-
tion.
C. Regina Whitaker
In May and June 1999 Respondent awarded carrier Regina
Whitaker routes 2427 and 2409. She and her husband, Ronnie,
subsequently engaged in union activity including attending
union meetings and soliciting carriers to sign union authoriza-
tion cards. In December 1999 Regina told her District Manager,
Timothy Keller, that she and Ronnie had attended union meet-
ings. Ronnie also had occasion to tell Keller that the couple
supported the Union.
In January 2000 Keller told the Whitakers that the Respon-
dent thought Regina was giving poor service and losing too
many subscribers on Route 2409. Keller said that the Respon-
dent was considering canceling her contract on that route. Re-
gina said that she was losing subscribers because they were not
paying their bills, some had passed away, and some had moved.
Regina told Keller that the real reason why the Respondent
wanted to take the route away was because of the Union. Kel-
ler denied that was the case. According to the Whitakers, Keller
said that David Bradley (the Respondent’s owner) had all the
money, the best lawyers and he would shut the News-Press
down if the Union went through. Respondent notified Regina
by letter dated February 1, 2000, that her contract for route
2409 was being canceled.
Keller denied that Regina Whitaker told him that she be-
lieved the reason the Respondent was considering terminating
her route 2409 contract was that she supported the Union. He
did admit that she mentioned that she thought Supervisor Chris
Zey was taking action against her because of her union activity.
Keller denied telling the Whitakers that the Respondent would
shut the business down rather than allow the Union to represent
the employees.
Considering the relative demeanor of the Whitakers and Kel-
ler I credit the Whitaker’s version of what Keller said to them
about the Respondent’s intention to shut the business rather
than permit the Union to represent the employees. The test of
whether an employer’s remarks or actions violated Section
8(a)(1)’s prohibition against interference, restraint, or coercion
is not whether it succeeds or fails, but, rather, the objective
standard of whether it tends to interfere with the free exercise
of employee rights under the Act. Fieldcrest Cannon, Inc., 318
NLRB 470, 490 (1995). I find that Keller’s statement to the
Whitakers did tend to coerce and interfere with their union
activities and is a violation of Section 8(a)(1) of the Act.
Keller testified that he made the decision to terminate Re-
gina’s route 2409 and that his decision was based upon a drop
in circulation. He had investigated the matter and discovered
that circulation was being diminished due to subscribers not
paying their bills, subscribers dying, and subscribers moving
away. Keller stated that his investigation also revealed that the
only other reason why there was a drop in circulation was due
to poor service. He could not be specific as to details of any
alleged poor service. Keller also testified that he did not rely on
the alleged poor service as a factor in determining to terminate
Regina’s route. Keller helped Regina with various promotions
to increase the circulation but it still did not improve to a level
he considered satisfactory.
The Respondent blames Regina Whitaker for the loss of cir-
culation on route 2409 yet was unable to tie the loss to factors
within her control. Keller could not substantiate any claim that
her poor service was in fact a cause of the diminished circula-
tion and he did not rely on this factor in terminating her route.
It is unclear how Whitaker was at fault in the situation. The
Respondent conceded that she was an excellent carrier. The
cancellation of her route 2409 contract came during the heat of
the union activity at Respondent’s business. The Respondent
knew of her union activity. The credited evidence shows that
contemporaneous with the route cancellation, Keller threatened
the Whitakers that the Respondent’s owner would shut down
the business before allowing the Union to represent the carriers.
ST. JOSEPH NEWS-PRESS 495
I find that the Government has proven that the cancellation of
the contract was, in part, due to Regina Whitaker’s union ac-
tivities. The Respondent’s defense lacks credibility. Regina
Whitaker was an excellent carrier who had little or no control
over the causes for the drop in circulation on the route. Keller’s
combined efforts with her to improve the situation were not
satisfactory. On balance I find that the Respondent would not
have terminated Regina Whitaker’s route 2409 absent her union
activities. I find that the Respondent violated Section 8(a)(1)
and (3) of the Act when it notified and ultimately canceled
Regina’s contract on route 2409.
D. Tony Landes
Husband and wife Tony and Bonnie Landes had served as
carriers for the Respondent for several years. Both Bonnie and
Tony were active union supporters who openly displayed their
support for the Union by wearing union pins and displaying a
union bumper sticker on Tony’s truck. They talked to other
carriers about the Union and passed out authorization cards.
The record demonstrates that the Respondent was aware of
their union support.
In late 1999 and early 2000, Tony had a Sunday bundle haul
into Maryville, Missouri, and a rural home delivery route. At
the end of January his Sunday bundle haul into Maryville was
terminated. The Landes learned of the contract termination
when Chris Zey called Bonnie. He told her that the Respondent
would no longer allow her cousin, Lyle Moore, to come to the
dock to load papers. When asked why, Zey replied that it was
because he had been badmouthing the Respondent. Zey also
informed Bonnie that the Respondent would be terminating
Tony’s bundle haul route. She asked why and he told her it was
because Tony was not stacking newspapers as he was suppose
to in a certain area. Bonnie protested that she knew the night he
was talking about, that she had been there and the papers were
stacked properly. Zey again told her that Tony’s contract was
being terminated.
Zey testified that Tony’s route was terminated “without
cause” and that the Respondent simply preferred to have some-
one else run the route. Zey testified that complaints from other
carriers were not the reason Tony’s route was terminated.
On about February 7, District Manager Tena Herring had a
conversation with Tony and Bonnie. According to the Landes’
testimony, Herring said that Tony’s name was being mentioned
at the Respondent’s office quite often in connection with union
activity. Herring told Tony that he needed to keep his mouth
quiet and watch what he said in the dock area. Herring told
Tony that he needed to keep his mouth shut about union activi-
ties because he had already lost his bundle contract going into
Maryville, Missouri, and she did not want him to lose anything
else.
Tena Herring, who at the time of her testimony no longer
worked for the Respondent, denied that she had a conversation
with Tony or Bonnie Landes in which she stated words to the
effect that Tony Landes’ name was being mentioned quite of-
ten, that Tony was discussing union activities, that he had better
keep his mouth shut and watch what he says, or that his Sunday
only Maryville bundle hauling contract was terminated because
of his union activity. Considering the demeanor of the Tony
and Bonnie Landes in contrast to that of Tena Herring, I credit
the Landes’ version of their conversation with her. I find that
Herring’s comments to the Landes about Tony’s union activi-
ties interfered with, restrained and coerced them in violation of
Section 8(a)(1) of the Act.
With regard to the notification and termination of Tony’s
bundle haul route the record shows that he was a visible union
supporter, his union activities were known to the Respondent
and the route termination occurred at the time of these activi-
ties. I find that the Government has established its initial burden
of showing the route termination was associated with Tony
Landes union activities. Zey testified with cloudy candor that
the termination was “without cause” and that it had nothing to
do with complaints from carriers. Herring gave context to the
contract termination when she warned Tony to keep his mouth
shut about the Union. I find that the Respondent has failed to
carry its burden of showing that it would have terminated Tony
Landes Maryville, Missouri, hauler route regardless of his un-
ion activities. I find that the Respondent violated Section
8(a)(1) and (3) of the Act by this cancellation action.
E. Bonnie Landes
On approximately February 14 Bonnie Landes learned that a
bundle haul route would soon become available. She tele-
phoned Herring, her district manager, and asked to take over
the route. Herring came to the Landes’ household the following
day to discuss the details of the route with Bonnie and Tony.
According to the Landes’ testimony Herring concluded the
meeting by saying the Landes could have the route and she
would return the next day with a contract. I specifically credit
the Landes versions of what Herring told them on this occasion.
The following morning Herring returned and told the Landes
that she had some bad news in that her supervisor, Regional
Manager Chris Zey had informed her that the Landes could not
have two bundle hauls in the same household. Bonnie pointed
out that they already had two bundle hauls in that her husband
had a Sunday haul.
The Respondent recites the history of the situation by noting
that in the spring of 2000, Bonnie Landes had contracted to
haul route 2260. This route was the Respondent’s largest bun-
dle hauling route containing some 5500 newspapers. Bonnie
already delivered a home delivery route consisting of 1000
papers. The Respondent’s total circulation is approximately
40,000 papers; thus Bonnie had control of over 10 percent of
the Respondent’s total circulation. Herring testified that she and
Chris Zey were concerned that if the additional haul route was
given to the Landes the newspapers would not be delivered by
Landes by 6 a.m., if they had to share a vehicle after the other
broke down and they could not find a replacement vehicle. The
Respondent asserts that this is the sole reason that the Landes
were denied the opportunity to contract for route 2267, the
second largest bundle haul consisting of 2400 papers.
I find that the Government has shown that the haul that Bon-
nie Landes wanted was denied her because of her and her hus-
band’s union activities. Herring told the Landes that the route
was theirs but then the decision was reversed. This occurred
shortly after the Respondent unlawfully took Tony’s Sunday
haul route away from him and warned him about the repercus-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD496
sions that would result from his union activities—the same
union activities in which Bonnie was also engaged. I find that
the Respondent did not meet its burden of showing it would not
have awarded the route to Bonnie Landes regardless of her
union activities. I find that the Respondent violated Section
8(a)((1) and (3) of the Act by the denial to her of that route.
F. John Aldridge
John Aldridge was contracted as a carrier on a city walk
route and a bundle-hauling route. His bundle hauler route was
terminated by the Respondent and the Government alleges this
action was unlawfully motivated by his union activities.
Aldridge was a union supporter who attended union meet-
ings, signed a union authorization card, and talked about the
Union with other carriers. Aldridge started wearing a union
button in October 1999 that bore the message “vote Team-
sters.” Some of Respondent’s supervisors observed Aldridge
wearing the union button.
On March 27, 2000, Aldridge was called to a meeting with
city home delivery manager, Sheila Switzer, in the Respon-
dent’s conference room. Switzer stated that Sexton had ob-
served him talking to Flint in the parking lot for 20 minutes
after he had loaded his papers. Aldridge denied talking to Flint
that long but did acknowledge having short conversations with
him. Switzer said that District Manager Kevin Williams had
seen Aldridge’s vehicle parked at a doughnut shop when it was
still loaded with carrier’s bundles. Aldridge denied making
such a stop when his truck still had carriers’ bundles.
Switzer then complained that Guck had reported that
Aldridge had telephoned him several times to haul a load.
Aldridge said that this was exaggerated, but conceded he had
called upon Guck a couple of times for assistance. Aldridge
admitted that he had some problems with his truck in February
and March. He testified that when his vehicle would not run he
usually had a vehicle in reserve that he could use. Aldridge
testified that Switzer asked him how he knew Flint. Aldridge
explained that Flint was his wife’s cousin. Switzer then told
Aldridge that the Respondent would be mailing him his 30-day
termination notice for his load hauler route on April 1. Aldridge
was duly notified of the termination of that route but was re-
tained on his carrier route. Aldridge did not want to deliver the
carrier route in the absence of his hauler contract. He therefore
terminated his home-delivery carrier route.
Switzer testified that the reason she decided to terminate
Aldridge’s hauler contract was his lack of reliable transporta-
tion. She noted that on one occasion the Respondent had to use
its own van to deliver his bundle haul, and on about five other
occasions in March, David Guck had to help Aldridge. Switzer
told Aldridge that if he could show her that he could perform
his haul through his own means every night during the 30-day
notice period, she would continue his contract. Switzer testified
that Aldridge ultimately abandoned his two routes before the
30-day period ended and he was not retained. She instructed
David Guck to charge Aldridge for any substitution fees the
Respondent incurred. Aldridge acknowledged that his bond
money was charged because the Respondent had to hire a re-
placement for him before the end of his 30-day termination
period.
I find that the Respondent had knowledge of Aldridge’s un-
ion activities, the timing of his hauler contract was contempo-
raneous with those union activities, and the Respondent’s ani-
mus towards the union is reflected on the record. Thus, the
standard elements forming the basis for an initial showing that
Aldridge’s hauler contract termination was linked to his union
activities have been proven. Switzer credibly testified that on
occasion Aldridge had vehicle problems that prevented him
from fulfilling his hauler obligations. She also credibly testified
that Aldridge never took her up on her offer to continue his
contract if he supported the request with evidence he possessed
reliable transportation for the hauler route. The record shows
Aldridge abandoned his routes before the termination period
was completed and his bond was charged as a result. Kevin
Smith credibly testified that the Respondent had previously
terminated carriers that did not have reliable transportation. I
find on balance that the Respondent has proven that it would
have terminated Aldridge’s hauler route regardless of his union
activities and that the action was not a pretext. I find that the
Respondent did not violate Section 8(a)(1) and (3) by terminat-
ing his hauler contract. Wright Line, 251 NLRB 1083 (1980).
The Government’s brief asserts that the Respondent violated
Section 8(a)(1) of the Act in late March or early April 2000,
when Guck informed Aldridge that the union would not get in
before they got rid of a union supporter. The Government’s
brief cites no evidence in support of this allegation. I find that
paragraph 5(h) of the amended complaint is without merit and
that the Respondent did not violate Section 8(a)(1) of the Act as
alleged in that paragraph.
G. Ivana Calhoun
Employee Ivana Calhoun had worked for the Respondent
since October 1999 stocking newspaper racks and stores that
sell Respondent’s newspaper. She was paid a price per piece
rate for delivering the newspapers. Calhoun was an active un-
ion supporter who distributed union flyers, invited carriers to
union meetings, and solicited carriers to sign union authoriza-
tion cards. She openly wore a union button and displayed “Vote
Teamsters’ bumper stickers on her work vehicle.
1. Kirschner’s conversation with Calhoun
Calhoun was loading her newspapers on January 31, 2000,
when employee Scott Kirschner engaged her in conversation.
Calhoun testified that Kirschner told her that Circulation Man-
ager Kevin Smith told him to tell Calhoun that Smith was tired
of hearing her name come up in conjunction with “this union
business.” Kirschner said Smith had told him that anytime
DeWayne Flint’s name was brought up, her name was also
brought up. Kirchner told Calhoun that Smith said that Calhoun
was a good worker and had always done well by them, but
Smith was tired of hearing her name brought up in conjunction
with the union business and that she had better cease or else.
Kirchner said that Smith had asked him to talk with Calhoun
because he knew that Kirchner and Calhoun were friends.
Kirchner said that he did not want to get involved. Calhoun
assured Kirschner that she did not consider him involved, that
Kevin Smith had involved him by putting him in the middle.
Calhoun testified that after this conversation she removed the
ST. JOSEPH NEWS-PRESS 497
union sticker from her vehicle and temporarily refrained from
overtly engaging in union activity.
Smith denied ever sending Kirschner to Calhoun to discuss
the Union, her union activities or threaten her regarding such
activities. Employee Kirschner was not called to testify by ei-
ther party. He was Calhoun’s friend, an employee of the Re-
spondent and allegedly acting on behalf of the Respondent. I
find that the record does not support a conclusion that Kir-
schner was favorable to any party in this proceeding. Presuma-
bly he was equally available to all parties to call as a witness,
and no adverse inference is attributed to any litigant because of
his nonappearance. Queen of the Valley Hospital, 316 NLRB
721 fn. 1 (1995); Salisbury Hotel, 283 NLRB 685, 691 fn. 10
(1987). I credit Calhoun’s uncontroverted testimony as to what
Kirschner said to her, allegedly at Smith’s behest.
The Government bears the burden of proving that Kirschner
was acting as the Respondent’s agent when he spoke to Cal-
houn. In determining if a person is acting as the agent for an-
other, the Board follows the common law principles as ex-
pressed in the Restatement 2d of Agency. As the Board stated
in Service Employees Local 87 (West Bay Maintenance), 291
NLRB 82, 83 (1988): “either the principal must intend to cause
the third person to believe that the agent is authorized to act for
him, or the principal should realize that this conduct [the mani-
festation] is likely to create such belief.” See also Southern Bag
Corp., Ltd., 315 NLRB 725 (1994); Allegany Aggregates, Inc.,
311 NLRB 1165, 1166 (1993). Smith denied giving Kirschner
any instructions to talk to Calhoun about the Union. Kirschner
was not called as a witness to confirm or deny such instruc-
tions. The Government did not show that Smith was aware of
Kirschner’s statements to Calhoun. I find, therefore, that the
Government has failed to prove that when Kirschner spoke to
Calhoun he did so with real or apparent authority on behalf of
the Respondent. I find that Kirschner’s statements to Calhoun
were not a violation of Section 8(a)(1) of the Act.
2. Changes to Calhoun’s work
Since October 1999 Calhoun collected coins from newsracks
1 day a week, Calhoun was contracted to deliver newspapers to
newsracks and dealers on route 5203. In late July, supervisor
Dave Mapel discussed with Calhoun the Respondent’s inten-
tions to make changes to the rack and dealer delivery routes.
The Respondent wanted to increase the number of outlets in
town that carried the newspaper. The changes included adding
one or two drivers, dividing routes and changing the pay scale.
Calhoun asked about a pay raise for her work. Mapel told her
the budget would be coming up and he would look into it.
Mapel also said employee Lee Taylor had moved on and the
Respondent would need someone to do the computer work and
someone else to become the rack maintenance supervisor.
Mapel told Calhoun he had her in mind for the rack mainte-
nance supervisor job since she knew how to repair the racks
and keep them functional. Mapel told her this would be a full
time job. Calhoun asked if she could keep her paper route be-
cause she enjoyed doing that work. Mapel said that she would
not be allowed to do that. Mapel said that an advertisement for
the job would appear in the newspaper the following Sunday,
and she should let him know if she was interested. Calhoun did
not apply for the job.
Starting in August Calhoun resumed her union activities, in-
cluding attending union meetings. On August 30, 2000, Mapel
and Calhoun met for lunch. They were joined by Respondent’s
employee Allen Sivertson. Mapel gave Calhoun written notice
that her Monday dealer-return collection contract was being
terminated. Calhoun asked why the Respondent was terminat-
ing this contract with her. Mapel said Sivertson would be per-
forming that work and employee Michelle Waller would also
help. Calhoun testified she objected to the change because it
would diminish her income by $200 a month. Mapel and
Sivertson recalled Calhoun stating she was glad to receive the
contract termination notice, because she wanted to sleep in on
Mondays. Mapel testified that the Respondent had reassigned
Ivana Calhoun’s and Bill Davis Monday dealer collection con-
tracts because it saved the company money. The work was
assigned to Respondent’s employees after he had made calcula-
tions concerning the cost savings and noting that the employees
had the time to do additional duties.
Mapel offered Calhoun a contract for the work she had been
doing on coin collection work. The offer was for $175 a month
and Calhoun signed the new coin collection contract that day.
Calhoun was a signatory to a contract to deliver newspapers
to newsracks and retail outlets. On approximately September
28, 2000, the Respondent sent Calhoun a written 30-day notice
that her carrier contract was being terminated. The Respondent
notified her such routes were being reorganized and gave her
paperwork on which she could formulate a bid for the routes.
Mapel implemented the bidding process because he had used
the same procedure in his recent former job in Nebraska. Mapel
testified that he wanted to realign and reduce the size of the
single copy delivery routes including Calhoun’s route. Mapel
determined that a new fourth route should then be added to this
work. The purpose of this change was to increase sales by hav-
ing the four new rack routes serviced earlier in the day and
thereby making papers available to customers at an earlier op-
portunity.
Calhoun submitted bids on three routes: 5201, 5202, and
5203. Her bid for route 5202 was for a per piece rate of
$.04192. Mapel and Calhoun negotiated about the matter and
eventually they agreed upon a rate higher than her original
offer. Calhoun contracted to do the work on route 5202 at a rate
of $.0485 per piece. Calhoun conceded that at the time she
signed her single copy delivery contract she viewed the per
piece rate as an improvement over the flat rate.
In December 1999, the Respondent lowered in equal propor-
tions the draw for each of the single copy delivery routes, in-
cluding Calhoun’s. Mapel testified that the draw was dimin-
ished because (1) single copy sales were down due to custom-
ers’ favorable reaction to a home delivery marketing effort; and
(2) extreme cold and snowy weather that typically diminished
sales from racks.
3. Analysis of the changes to Calhoun’s work
The Government alleges that the Respondent violated the
Act by changing Calhoun’s routes, giving her a smaller route,
taking away her Monday collection duties and limiting her
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD498
newspaper draws. The cumulative result of these actions was
that Calhoun earned less money. The Respondent denies it
unlawfully effected Calhoun’s work and points to the above-
noted business reasons for making the changes. On balance I
find that the Government has failed to establish a prima facie
case that the changes made to Calhoun’s work situation were
the result of her union activities. I found Mapel to be a credible
witness and I credit his testimony as to the reasons for the
changes involving Ivana Calhoun’s work. The Respondent
presented plausible business justification for each of the
changes and showed that it would have made such revisions
absent Calhoun’s union activities. I find that the Respondent
did not violate Section 8(a)(1) and (3) of the Act by its conduct
in modifying Calhoun’s work situation.
CONCLUSIONS OF LAW
1. The St. Joseph News-Press, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Teamsters Union Local 460 is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) and (3) of
the Act.
4. The foregoing unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Respondent has not violated the Act except as herein
specified.
[Recommended Order omitted from publication.]