Boston After Dark, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1974

210 N.L.R.B. 38 (N.L.R.B. 1974)

38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boston After Dark , Inc. and United Electrical, Radio
& Machine Workers of America (UE), Petitioner.
Case 1-RC-12689
April 12, 1974
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Mark S.
Halperin. Thereafter, pursuant to Section 102.67 of
the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended, the Regional Director for Region 1
transferred this proceeding to the National Labor
Relations Board for decision. The Employer and
Petitioner have filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
On the entire record in this proceeding, including
the briefs, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The appropriate unit: Boston After Dark, Inc.
(the Employer), is a Massachusetts corporation
engaged in the publication and distribution of "The
Boston Phoenix," a weekly newspaper. The Employ-
er's operations are divided into four departments:
editorial, art, sales, and circulation. There is also an
administrative staff. Responsibility for the overall
direction of the four departments and administrative
staff rests with the publisher, the executive vice
president, and the general manager.
The Petitioner seeks a unit of all regular and part-
time employees including editors, contributing edi-
t The parties stipulated that the following were supervisory employees
who should be excluded from any unit found appropriate : publisher,
executive vice president, general manager, editor , managing editor,
managing editor-arts , circulation department director, sales department
tors, associate editors, writers, including part-time or
"freelance" writers, layout and art editors and staff,
photographers, classified department employees,
deliverymen, accounting and office clerical employ-
ees, excluding the editor, managing editor, general
manager, sales director, advertising sales coordinator
and assistant, national sales coordinator and assist-
ant, sales representatives, circulation director, news-
stand sales managers, production manager and
assistant, office courier, bookkeeper, credit manager,
guards, and supervisors.' The Employer would add
to that unit the advertising sales coordinator and his
assistant, the national sales coordinator and his
assistant, the sales representatives, the production
manager and assistant, office courier, bookkeeper,
and credit manager, and would exclude as supervi-
sors the associate arts editor, the arts editor-music,
and the arts editor-film. Finally, the Employer would
exclude all "freelance" writers, cartoonists, and
photographers as independent contractors.
A. Full-time Employees
The full-time employees in dispute , their depart-
mental location , and the functions they perform are
as follows:
1. The sales department
The Petitioner would exclude from its proposed
unit the entire staff of eight sales representatives. Six
of the sales representatives sell advertising space in
the newspaper to various local merchants and
advertisers. Half of their time is spent in the office
contacting customers by phone, and doing the
necessary accompanying paperwork; the other half is
spent outside the office soliciting advertisements
directly. The other two sales representatives, the
national sales coordinator and his assistant, sell
newspaper space to national advertisers. As most of
their solicitation is by mail or phone, they spend 80
to 90 percent of their time in the office.2 All sales
representatives are paid on a straight salary basis,
without commissions, although Employer may occa-
sionally initiate a campaign during which sales
representatives receive bonuses for selling a certain
number of ads. All the sales representatives report to
Sales Department Director Morris, who in turn is
answerable to General Manager Wolk.
Petitioner argues for exclusion of these employees
on the grounds that they work under separate
supervision, and that their duties and methods of
compensation are different from those of other
director , and art department director
2 Occasionally , however, the national sales coordinator or his assistant
will travel to New York to service an account.
210 NLRB No. 4
BOSTON AFTER DARK
employees . Petitioner also argues that they, unlike
other employees, spend a considerable amount of
time off the premises and experience little interaction
or interchange with other unit employees.
We find no merit in Petitioner's argument. The
record clearly shows that there is substantial interac-
tion between sales representatives and other unit
employees. For instance, a sales representative may
consult an employee in the art department concern-
ing the graphic layout of an advertisement that might
appear in the paper. Or a sales representative might
coordinate with an employee in the circulation
department in an effort to increase circulation in an
area where a major account has just been sold. The
offices of the sales representatives are located on the
same floor of the building occupied by Employer as
the art department, bookkeeper, and many associate
editors. As is the case with all other unit employees,
the sales representatives are salaried and are benefi-
ciaries of Employer's fringe benefit package. Moreo-
ver, while their immediate line of supervisory
authority is different from other unit employees, they
are, as are all the other employees, ultimately
answerable to General Manager Wolk.3 In light of
these circumstances, we find that the sales represent-
atives share a community of interest with the other
unit employees and, therefore, we shall include such
employees in the unit.4
The Petitioner also seeks to exclude from the unit
the advertising sales coordinator and her assistant.
These two sales personnel coordinate and expedite,
in a clerical capacity, the effort of the sales staff.
They take and relay phone messages for sales
representatives who are out of the office. They also
are responsible for insuring that advertising material
moves back and forth between the sales staff and
various advertisers as required. In addition to this
function, the advertising sales coordinator and her
assistant service certain "house-accounts"; i.e., ac-
counts with advertisers that no salesman is able to
handle.
The Petitioner also argues that aside from the fact
that these two employees sell advertising space, and
therefore should be treated like the other eight sales
representatives, there exists a further ground for
exclusion in that the advertising sales coordinator
and her assistant possess supervisory status. We do
not agree . The record clearly indicates that neither
the advertising sales coordinator nor her assistant has
the power to hire, lay off, or discharge employees, or
3 The directors of each of the four departments (the editor in the case of
editorial department) are all directly responsible to Wolk
4 See Garden Island Publishing Co., Ltd, 154 NLRB 697, holding that in
the newspaper industry a unit of all nonmechamcal employees is the
optimum unit
5 The Petitioner originally sought the inclusion of Neal and Hurst on the
basis of their office work . However, in its brief, it contends that the fact that
39
effectively recommend such action. Nor does the
advertising sales coordinator exercise supervisory
authority over her assistant. The only evidence of
supervisory status relied upon by Petitioner is the
function of these two employees in directing the
office courier to carry,various materials between the
sales office and various advertisers. However, neither
the advertising sales coordinator nor her assistant
exercises independent judgment in directing these
deliveries. In fact, the courier exercises his own
discretion in scheduling the order of his deliveries.
Any judgment they do possess appears as an
incidental adjunct to their clerical duty of expediting
the flow of materials throughout the sales staff. We
therefore shall include the advertising sales coordina-
tor and her assistant in the unit.
The Petitioner would also exclude the courier on
the same basis it argues for exclusion of the sales
representatives. The office courier's primary function
is to deliver advertising and other material to and
from advertisers pursuant to direction of the adver-
tising sales coordinator, her assistant, and the sales
representatives. For the same reasons we have
included the sales representatives in this unit, we also
include the courier.
2. The circulation department
The Employer employs three men, Neal, Hurst,
and Howard, who deliver newspaper bundles to
various streetside distribution points and newsstands.
Once a week they also drop off bundles of the
newspapers at various local college campuses. In
addition, Neal and Hurst perform odd casual jobs
around the office. They also distribute and hang
posters throughout an area on behalf of advertisers.
Hurst and Neal spend approximately 15-16 hours
per week distributing the newspapers and posters
and another 8-10 hours doing other jobs for
Employer. Howard, on the other hand, works only
6-7 hours per week distributing the newspaper, and
does nothing else.
While Employer and Petitioner have agreed upon
the inclusion of Neal and Hurst in the unit,5
Employer argues for the exclusion of Howard
alleging him to be a casual employee. We find merit
in Employer's argument. Contrary to the Petitioner's
contention, Howard presently spends the totality of
his working time, 6-7 hours per week, away from
Employer's premises. While Howard at one time did
the two deliverymen do no office work , are paid on a commission rate for
reservicing of newsstands , and accomplish their newspaper delivery work by
use of delivery trucks they themselves own "clouds the issue " of their
inclusion in the unit . We do not regard this as a formal abandonment of
Petitioner's contention that these two men should be included in the unit,
especially when the contention that they do no office work is rebutted by
the record
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some jam and clerical work on Employer's
premises, Employer Publisher and President Mindich
testified that he no longer performs such duties and
the likelihood that he will do so in the future is
speculative. We find that Howard does not possess a
community of interest with unit employees and,
therefore, we shall exclude him from the unit.6
3. The administrative staff
The Petitioner seeks to exclude the bookkeeper on
the grounds that he is both a professional and a
supervisor. The record shows that the bookkeeper's
main responsibilities are the keeping of Employer's
general ledger and the maintenance of the payroll.
He also prepares checks for the payroll and other
disbursements . Final approval of all payments,
however, rests with General Manager Wolk, who has
the authority to sign the checks. The record is devoid
of any evidence of the bookkeeper's supervisory
authority, except for the fact that he participates in
the interviewing of applicants for work on the
administrative staff in order to advise management
of their accounting skills and he helps familiarize
new hires with their assignments. He is also consult-
ed by accounting clerks on matters within his
expertise . Furthermore, while he occasionally has
given an assignment to one of the accounting clerks,
it has not been in the normal course of their work.
Finally, the bookkeeper has sat in on one manage-
ment meeting . After examining all of the functions
and responsibilities of the bookkeeper, we are unable
to conclude that he is a supervisor. We will therefore
include him in the unit.7
Petitioner would also exclude the credit manager as
supervisory. The record shows that the credit
manager's chief functions are to check credit
references of various advertisers who seek to do
business with the newspaper on a credit basis, and
authorize extension of credit to such advertisers
within guidelines set by General Manager Wolk.8
The credit manager maintains a list of all advertisers
he believes should be cut off from further credit due
to their persistent delinquencies, but Wolk sets the
standard of delinquency. In the absence of evidence
that the credit manager possesses any indicia of
supervisory status , we find that the credit manager is
not a supervisor and we will include him in the unit.
4. The art department
The only two employees in this section whose
positions are in issue are theproduction manager and
his assistant. Petitioner seeks to exclude these two
employees on the basis that they lack community of
interest with the unit employees. The primary
function of the production manager and his assistant
is to coordinate and expedite the flow of newsprint
from the layout stage to the galley stage. In this
capacity, they spend a substantial portion of their
working hours on the premises of Cambridge
Composition, Inc. (hereinafter CCI), a company
utilized by Employer to do its typesetting. CCI is
located in the same building as Employer. Communi-
cation between the two operations can be made by
intercom. Petitioner , in its effort to establish a lack of
community of interest, relies heavily on the fact that
both the production manager and assistant are
employed by CCI at the same time they are working
for Employer, the former in a supervisory capacity.
Petitioner also argues that both employees' work
contacts are with supervisory rather than unit
personnel of Employer.
However, we view the evidence as supporting the
existence of a community of interest between the
production manager and his assistant and the unit
employees. First of all, while the production manager
does spend a great deal of time on the premises of
CCI-some of it exclusively on behalf of CCI-he
testified that, out of an average workweek of 55
hours, he spends 25-40 hours working on behalf of
Employer. He further testified that his assistant
spends almost all of his on-the-job time (20-25 hours
per week) working for Employer.9 Moreover, the
nature of the work done by these two employees has
necessitated substantial contact with other employ-
ees in the unit. In order to coordinate proper
placement of stories, pictures, and advertisements in
the newspaper before it is run off, the production
manager and his assistant are in constant communi-
cation with the layout editor, artists, and assistant
advertising sales coordinator, even when they are on
the CCI premises, in which case the intercom is used.
For these reasons, we shall include the production
manager and his assistant in the unit found appropri-
ate herein.10
5. The editorial department
The editorial department, headed by Editor Paul
Corkery, is responsible for the substantive input of
the newspaper. There are two sections of the editorial
department: the news section, headed by Managing
Editor William Miller, and the arts section, headed
6 Lowell Sun Publishing Company, 132 NLRB 1168. 9 Wolk has authorized extension of credit to any advertiser who pays his
r Also, as Petitioner has not introduced any evidence that the bills within 60 or 90 days of billing.
bookkeeper is a certified public accountant or a college graduate , we are 9 The assistant 's working relationship with CCI consists of bringing in
unable to find that he is a professional employee . Arden Farms, 117 NLRB business for which he is compensated on a commission basis.
318. 10 See fn . 4, supra
BOSTON AFTER DARK
by Managing Editor William Kowinski. Each weekly
edition of the newspaper contains contributions from
both sections. The news section appears as "section
1" of the newspaper. The arts section appears as an
interior set of pages, referred to as the "second
section" or "section 2." Corkery , Miller , and Kowin-
ski have been stipulated by the parties as supervisors
and hence excluded from the unit. However, the
status of three full-time employees in this department
is in issue: Arts Editor-Music Ben Gerson, Arts
Editor-Film Janet Maslin, and Associate Editor of
the Arts Section Richard Rosen. Employer would
exclude these three as supervisory and managerial
personnel.
The record shows that Gerson and Maslin perform
similar functions . Both editors are alloted by Kowin-
ski a certain amount of newspaper space per week in
the second section to fill with articles in their
respective fields of knowledge. Both Gerson and
Maslin are salaried, as are the other unit employees,
and receive the same fringe benefits as they do.
Gerson and Maslin depend almost exclusively on
freelance reporters to supply articles for their
respective sections . Usually, Gerson and Maslin
decide in advance what events or subjects they want
covered and solicit the desired articles from a pool of
freelances whom they have relied on in the past to
write articles for them, although a freelance may
submit an unsolicited article which Gerson or Maslin
might decide to publish. Occasionally Gerson and
Maslin will write and submit articles themselves.
Both Gerson and Maslin edit the articles submitted
for grammar , style, and occasionally content. They
also determine how much a freelance is to be paid for
an article, although minimum and maximum
amounts of compensation are set by Kowinski.11
Kowinski has ultimate authority over the content of
the arts section of the paper and over which freelance
reporters will be chosen to write articles for that
section. On occasion, he has vetoed Maslin's selec-
tion of various freelances to write certain articles,
and has accepted for publication an article that
Maslin had rejected.
While Gerson and Maslin use a great deal of
independent judgment in their efforts to formulate
the scope and content of the arts section of the
newspaper , there is little evidence that such judgment
is used in connection with supervisory powers over
any of the employees of the newspaper, as contem-
plated by Section 2(11) of the Act. Employer points
to the occasional assignment by Gerson and Maslin
11 If either Gerson or Maslen wishes to pay a freelance a fee outside the
range set by Kowinski, Kowinskl 's or Corkery's approval must be obtained.
12 New England Telephone and Telegraph Company, 90 NLRB 639; Burke
Brewery, Inc., 54 NLRB 1061; Julien P. Friez & Sons, Division of Ben&x
Aviation Corp., 47 NLRB 43; Eastern Camera and Photo Corp., 140 NLRB
41
of arts section articles to regular employee staff
writers on the news section of the newspaper as
evidence of their supervisory status . We disagree. We
note from the record that Gerson has the apparent
authority to cross interoffice lines of authority and
ask an employee of the news staff to write an article
for him. However, whether the article can be written
depends on the assent of the employee and the
willingness of Managing Editor Miner to make him
available for the assignment . Similarly , Maslin has
on occasion assigned articles to regular news section
employees who express a willingness to take on such
assignments, but she has no authority to order these
employees to write articles for her . We are unable to
equate the practice of requesting employees in other
administrative departments to perform assignments
if they are willing, and then only if their supervisor
approves the assignment, with the authority to assign
work as contemplated by Section 2(11) of the Act,
and therefore find that Gerson and Maslin are not
supervisors.
Employer argues that Gerson and Maslin are
managerial employees, relying on Retail Clerks
International Association, AFL-CIO v . N.LRB., 366
F.2d 642 (C.A.D.C., 1966), and Board cases cited
therein,12 for the proposition that an employee is
deemed "managerial" and hence excludable from a
unit of employees if he meets one of two tests: (1)
Even if he does not supervise other workers, his
position with the employer presents a potential
conflict of interest between the employer and the
workers , i.e., the employee is closely related to or
aligned with the management , or (2) he formulates,
determines, and effectuates an employer's policies or
he has discretion in the performance of his job, but
not if the discretion must conform to an employer's
established policy.
However, in North Arkansas Electric Cooperative,
Inc., 13 the Board held that whether or not an
individual was deemed "managerial" turned on
whether he participated in the formulation , determi-
nation, or effectuation of policy with respect to
employee relations matters , or whether there existed
other inconsistencies or conflicts of interest between
his proper performance of his job and the imple men-
tation of his right to engage in or refrain from
engaging in concerted activity.14
Employer alleges such a conflict of interest in that
Gerson and Maslin , if included in the unit , would be
subject to pressure from the Union to assign to
regular employees articles which would ordinarily be
569
13 185 NLRB 550, enforcement denied 446 F.2d 602 (C.A. 8, 1971).
14 See also McDonnell Aircraft Company, a division of McDonnell Douglas
Corporatiorn 207 NLRB No. 91.
a DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigned to freelances . However, we perceive no such
conflict of interest because neither Gerson nor
Maslin has authority to assign, in the normal course
of operations, articles to regular employees. Their
sole authority lies in the procurement of music or
film-related articles from independent sources; i.e.,
freelances .15 Therefore, we find that Gerson and
Maslin are not managerial personnel but rather are
Section 2(3) "employees." We shall include them in
the unit found appropriate herein.
Richard Rosen's function as associate editor of the
arts section is twofold. First, he is responsible for
obtaining book reviews for each issue of the
newspaper. In this regard, his function is similar to
that of Gerson and Maslin. He is alloted a certain
amount of space per week by Kowinski for book
reviews. He selects books to be reviewed and picks
the freelances from a list to do the reviews. He then
edits the reviews submitted. Kowinski can veto
Rosen's choice of books to be reviewed, the freelanc-
es who write the reviews, and the reviews as finally
submitted. Rosen has the authority to negotiate
compensation for the freelance writers, but again
within parameters set by Kowinski. In addition to his
function as book review editor, Rosen serves as
Kowinski's assistant , taking over his duty as manag-
ing editor of the arts section whenever Kowinski is
on vacation, out of town, or otherwise unavailable
for work.16 In this capacity, Rosen assigns articles to
freelances concerning other aspects of the arts
section, e.g., the theater or fine arts, and he edits their
work. He also works with the layout editor regarding
the arrangement of articles within the arts section.
Furthermore, as assistant to Kowinski, Rosen has on
occasion suggested editorial changes in the material
of regular staff employees. Such changes are often
adopted by these staff writers without protest.
We do not believe that Rosen possesses supervisory
authority. As is the case with Gerson and Maslin, the
record reveals that Rosen's primary responsibilities
he in the area of directing the work of freelances, not
employees. In this regard, we do not regard Rosen's
occasional suggestion of editorial changes to articles
written by employees as tantamount to the responsi-
ble direction of employees contemplated by Section
2(11) of the Act. Nor is there any basis for excluding
Rosen from the unit as a managerial employee.
While Rosen may use a considerable amount of
discretion in the formulation of the weekly arts
section, his association, direct or indirect, with the
labor relations policies of Employer is sufficiently
remote to preclude any conflict of interest should
Rosen be included in the unit. For these reasons, we
shall include Rosen in the unit found appropriate
herein.
B. Freelance Contributors
It has been the practice over the years for
Employer to rely heavily on so-called freelance
writers, cartoonists, and photographers to contribute
articles, columns, cartoons, and photographs to the
newspaper. The arts section comprises almost exclu-
sively such material. From January 2 to May 15,
1973, approximately 85 freelances made 600 contrib-
utions of various sizes to the newspaper's 19 weekly
issues. Petitioner seeks to include in the unit all
freelances who contributed six or more articles,
cartoons, or photographs within this 19-week period.
There are 39 in this category. Its claim for inclusion
is based on the fact that these 39 have an ongoing
relationship with the paper, holding themselves ready
to contribute material on a regular basis , and indeed
being relied upon by Employer to do so. Because of
such a close affiliation, these freelances, the Petition-
er argues, take on the characteristics of, and thus
share a community of interest with, the stipulated
unit employees. Employer, on the other hand, argues
for the exclusion of these people as independent
contractors.
The relationship of each of the 39 freelances in
issue to Employer is by no means the same, but
rather ranges from a situation in which a freelance
submits the minimum 6 articles on an unsolicited
basis, to an arrangement whereby a freelance is
depended upon to make a contribution every week
and is paid a constant weekly sum for his regular
contributions. A common characteristic shared by all
freelances, however, is their method of compensa-
tion; all are paid on a piece rate without any payroll
deductions. Also, they do not partake of Employer's
fringe benefit package as do the unit employees.
For reasons set forth below, we hold that all the
freelances are independent contractors.
Fred Barron is the most prolific freelance associat-
ed with Employer. In the representative 19-week
period since the beginning of 1973, Barron has made
37 contributions to the newspaper, including a
weekly TV column, and is paid by the piece.
Earnings derived from these contributions represent
his sole source of income. He participates fully in the
weekly Monday meeting in which the heads of each
section assign articles they desire to have written for
upcoming issues or take suggestions from various
employee-writers or freelances as to certain articles
they would like to write. Barron spends a considera-
ble amount of time working at the newspaper's office
15 For the reasons set forth below, we do not regard any of the freelances 16 Rosen testified that he would soon be filling in for Kowmskl for a 3-
who contribute material to the newspaper as employees. to 4-week period while Kowtnski was out of the office.
BOSTON AFTER DARK 43
and receives mail and phone calls there. Articles and
columns submitted by Barron are often edited for
content as well as grammar. Barron's name is listed
on the masthead of the newspaper.
Carolyn Clay is engaged by Employer as contribut-
ing arts editor for the theater. In this capacity, she is
relied upon by Employer to furnish two or three
theater reviews per week. While she usually writes
the reviews herself, she does on occasion procure
theater reviews from other freelances. Clay is paid a
flat $50 per week for her service of providing theater
reviews, regardless of how many reviews she writes,
so long as she writes at least one article per week. She
is further reimbursed for any money she has paid to
other freelances for their reviews. Clay has contribut-
ed 28 articles to the paper in the 19-week representa-
tive period. She, like Barron, attends the Monday
meetings where the contents of the upcoming issues
are determined.
Susan Phillips is engaged by Employer as a
contributing news editor. She writes a weekly
question-and-answer column in the news section of
the paper, for which she receives a weekly fee. In
order to supplement her income, she writes addition-
al articles of varying length for which she receives
additional compensation. In the first 19 weeks of
1973, Phillips contributed a total of 27 articles,
including her weekly columns. Her columns are
subject to editing and, on a few occasions, she has
been asked by Corkery to delete certain questions.
Phillips makes use of the telephone in the newspaper
office and receives mail in her own mailbox there.
She also attends the Monday staff meetings to obtain
assignments . Phillips is reimbursed for expenses
incurred in connection with the writing of her
articles . She has no income other than what she gets
from the Employer.
Larry Gonick contributes a panel cartoon to the
paper each week for which he is compensated a fixed
sum. He also draws occasional extra illustrations on
a piece-rate basis. In the first 19 weeks of 1973,
Gonick made 21 contributions to the paper. His
cartoon strips have been edited on a number of
occasions for content. At one point, Gonick was
instructed to restrict the subject matter of his cartoon
to local issues , although cartoons covering other
issues have also been published. Gonick depends on
his earnings from the newspaper for most of his
income . Gonick spends a substantial amount of time
at the newspaper office, attending about 50 percent
of the Monday staff meetings. His actual cartoon
illustration work is divided evenly between home and
the newspaper office. Gonick received a Christmas
bonus last December, as did the unit employees.
Another cartoonist, whose work appears somewhat
less frequently (19 contributions in 19 weeks), is
David Sipress. Sipress draws a straight one-panel
cartoon for a fixed sum per week. He also sells the
same cartoon to other newspapers on a syndicated
basis.
While these contributors 17 possess many indicia of
employee status, i.e., regularity of compensation,
frequent presence at the newspaper office and use of
its facilities, substantial dependence on earnings
from the newspaper, exposure of their work to
correction or substantive editing by Employer, there
is one crucial element running through the relation-
ships of all of these contributors which sets them
apart from regular unit employees: their ability to
refrain from contributing material any given week or
weeks without prejudicing their chances of contribut-
ing more material at a later date.
Even regular contributors like Phillips and Barron
have ceased writing for various periods of time and
have been able to continue their columns when they
returned. Of course, while absent, no freelance is
entitled to vacation pay, as they do not, as noted
earlier , participate in Employer' s fringe benefits.
Unlike regular staff writers, freelances are not
required to attend the Monday staff meetings and
undertake assignments . The fact that certain free-
lances attend these meetings with frequency merely
reflects their desire to earn more money. Moreover,
freelances are free to write for other newspapers,
even competitors of the Employer, while regular
employees may be prohibited from engaging in such
activities. It is mainly the freedom of freelances to
submit articles to the Employer as frequently or
infrequently as they wish plus the "no work-no pay"
assumption under which they work which leads us to
conclude that the above-discussed writers, photogra-
phers, and cartoonists are independent contractors
rather than employees. It also goes without saying
that the same logic which applies to these contrib-
utors also applies to the remaining 27 freelances who
have contributed less than 19 articles in this
representative 19-week period, and who possess no
more indicia of employee status than the freelances
discussed above.
We therefore shall exclude all 39 freelances from
the unit herein found appropriate.18
In accordance with all the foregoing, we find that
17 There are other people who have averaged at least I contribution per (photographer, 20 contributions), and Myron Meisel (writer, 19 contribu-
week-Bill Purdy (photographer, 35 contributions in the 19-week represent- tions)-whose relationship with Employer are not described specifically in
ative period), Charlie McCollum (columnist, 31 contributions), Mike Barron the record.
(writer, 30 contributions), Lois Greenfield (writer and photographer, 21 18 We are also excluding Celia Gilbert, contributing arts editor in charge
contributions), Maje Waldo (photographer, 21 contributions), Pam Schuyler of poetry and fiction, whom Petitioner seeks to include in the unit. While
(Continued)
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the following employees constitute a unit appropriate
for collective bargaining within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time employees
of Boston After Dark, Inc., at its office at Boston,
Massachusetts, excluding the publisher, executive
vice president, general manager, editor, managing
editor, managing editor-arts, circulation depart-
ment director, sales department director, art
department director, casual deliveryman James
Howard, "freelance" writers, photographers, and
cartoonists, supervisors, and guards.
[Direction of Election and Excelsior footnote
omitted from publication.]
MEMBER FANNING , dissenting:
Unlike my colleagues, I would not exclude all so-
called "freelance" writers, cartoonists, and photogra-
phers as a class merely because they are compensat-
ed on a piece-rate basis. There are other relevant
factors which the majority opinion fails to consider.
The "right-of-control" test, which the Board uses
so often in determining whether a person is an
employee of an employer or merely an independent
contractor,19 would appear singularly inapplicable
when dealing with the personal services rendered by
professional personnel such as the writers, cartoon-
ists, and photographers involved in this case. Given
the independent manner in which they do their work,
and the high degree of discretion utilized in connec-
tion with it, what is important to the Employer is the
end result, the article or whatever finished product is
anticipated. In such instances , therefore, the Board
has paid less attention to the "right of control" and
more attention to an analysis of the degree to which
the professional personnel have been integrated into
the operating organization of the employing unit.20
On the only occasion in which the Board has
addressed the issue of employee status of newspaper
reporters, Plainfield Courier-News Co.,21 it found
suburban correspondents of a city newspaper to be
employees of the newspaper rather than independent
contractors. In so doing, the Board relied heavily on
the fact that the work of such correspondents was
closely integrated with, and constituted an essential
part of, the employer' s business , notwithstanding the
facts that their earnings depended in part on the
amount of and quality of material they submitted,
their supervision by their employer was minimal, and
their method of compensation-a periodic sum of
money without any deductions for taxes-differed
from that of other unit employees. However, this
crucial consideration of integration into the Employ-
er's operation was totally ignored by my colleagues
in making their decision in the instant case.
There is no doubt that the contributions of so-
called freelances are indeed an essential part of the
Employer's business. The record indicates that
freelance articles constituted, on the average, appiox-
imately 50 percent of the content of section 1 of the
newspaper. Section 2, the arts section, comprises
almost exclusively freelance contributions. The
ultimate question, however, is how many freelances
have, by their own individual contributions, proved
themselves so essential an element of the Employer's
reportorial effort as to be deemed employees of the
Employer rather than independent contractors. Put
another way, how frequently must a freelance make
contributions to the Employer's weekly newspaper
before he is to be regarded as an essential individual
whose work has become highly integrated into the
Employer's business? The answer to this question
would define the class of employees to be included in
the unit.
A statistical exhibit offered by the Employer and
accepted by the Hearing Officer shows that in a
representative 17-week period (the first 4 months of
1973), a total of 171 freelances contributed to the
newspaper.22 The vast majority of these freelances,
over 80 percent, appeared in only one to five issues in
the 17-week period. Given this infrequency of
appearance, I would find their relationship with the
Employer's business sufficiently casual to preclude a
finding that these freelances are employees. Howev-
er, the Employer's exhibit also shows that over 10
percent of the freelances, 18 people, appeared in
more than half of the 17 weekly issues ; in fact, 6
freelances appeared in every issue. It would appear
that any such freelance, appearing on the average of
her responsibilities seem somewhat similar to those of Gerson and Maslin,
t.e., securing poetry from various poets for publication in the newspaper, she
is paid only when she provides this service . If she doesn 't supply a poem for
any given issue , she will not be paid that week . Her function more resembles
that of Carolyn Clay, whom we have excluded as an independent
contractor. We therefore also exclude Gilbert as an independent contractor.
19 As recently stated by the Board, the test is "whether the person for
whom the individual performs services controls not only the result to be
achieved, but the manner of achieving it." Peerless Publications, Inc., 190
NLRB 658, 660.
20 See San Marcos Telephone Company, 81 NLRB 314.
21 95 NLRB 532.
22 There is a substantial variance between the Employer's statistics and
those of the Petitioner, which place the number of freelances contributing to
the paper in the first 19 weeks of 1973 at 85. However, for purposes of this
analysis, this variance is irrelevant.
at least once every other week, possesses a sufficient my colleagues, find all freelances, regardless of their
ongoing relationship with the newspaper so as to; number, whose work appeared in at least half of the
warrant the conclusion that his work is closely 17 weekly issues in the first 4 months of 1973 to be
integrated with and constitutes an essential part of, employees and would include them in the unit found
the Employer's operations. I would therefore, unlike ' appropriate herein.