Houston Chronicle Publishing Co.

National Labor Relations Board - Board DecisionsFeb 13, 1963

140 N.L.R.B. 1267 (N.L.R.B. 1963)

HOUSTON CHRONICLE PUBLISHING COMPANY 1267 Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Third Region signed copies of the aforementioned notice for posting by the Company at its four stores in the Buffalo, New York, area, as described herein, the Company willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being signed by the Respondents, as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Third Region, in writing, within 20 days from the date of the receipt of this Intermediate Repoit, what steps the Respondents have taken to comply herewith.18 18 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Diiector, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 212, RETAIL CLERKS INTERNATIONAL ASSOCIA- TION, AFL-CIO, AND RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT, under conditions prohibited by Section 8(b) (7) (C) of the National Labor Relations Act, picket or cause to be picketed, or threaten to picket or cause to be picketed, the premises of Maxam Buffalo. Inc, Maxam Seneca, Inc, Maxam Hertel, Inc., and Maxam Niagara, Inc., all doing business as Maxam Inc. LOCAL 212, RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Reprnsentitivi,) (Title) RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material Employees may communicate directly with the Board's Regional Office, 4th Floor, The 120 Building, 120 Delaware Avenue, Buffalo 2, New York, Telephone No. TL 6-1782, if they have any questions concerning this notice or compliance with its provisions. Houston Chronicle Publishing Company 1 and Houston News Vendors Association , Petitioner . Case No. 23-RC-1985. Feb- ruary 13, 1963 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before William H. Helms, hearing officer. The hearing officer 's rulings made at the hearing are free from prejudicial error and are hereby affirmed. i The Employer' s name appears as amended at the hearing 140 NLRB No. 119. 681-492-63-vol. 140-81 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Leedom, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer.2 3 The Employer contends that no question concerning representa- tion of employees exists within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act because the individuals petitioned for herein are not employees of the Employer, but rather are independent con- tractors and as such are excluded from the coverage of the Act. We agree. The individuals petitioned for herein are news vendors who are engaged in the occupation of selling newspapers at certain street loca- tions in downtown Houston, Texas. These vendors purchase news- papers from distributors at a fixed fee, generally 6 cents, and sell them to purchasers on the street at 10 cents per copy. The profit thus realized is their only compensation. The vendors are not restricted to selling the Employer's publication, the Houston Chronicle, ex- clusively. On the contrary, the vendors sell newspapers published by the Employer's competitors, The Houston Post and The Houston Press. The vendors determine for themselves what hours they shall work, and what their holidays and vacations shall be. They are free to hire their own replacements to substitute for them or to assist them on a permanent basis. They select their own newsstand locations I and are free to use or not use news racks furnished by the Employer. Any losses sustained by the vendors in the resale of the papers are borne by the vendors. The Employer does not maintain the vendors on his payroll for Federal income tax withholding, workmen's compensation, social security, or any other purpose. On the other hand, the Employer does accept "returns" (unsold newspapers) from the vendors, and from time to time, offers sugges- tions and criticisms to the vendors in order to stimulate the sale of its newspapers. The employer furnishes news racks, which most of the vendors use, and encourages them to display advertising which it furnishes. The Employer also requires the vendors to draw their papers from distributors designated by it, and these distributors can limit the amount of the vendors' "draw." However, under the cir- 2 to the Employer , we find , on the basis of the record herein, that the Houston News Vendors Association is a labor organization within the meaning of the Act Sit appears that one news vendor, Charles Bondi, has been frustrated in his choice of locations to the extent that the Employer reacquired from Bondi certain automatic coin racks which Bondi had previously placed at locations in the downtown area THE EAST OHIO GAS COMPANY 1269 cumstances of this case, we do not feel that such minor participation in the selling procedure suffices to make the news vendors employees of the Employer. The Board has stated, "The legislative history of the 1947 amend- ments shows that Congress intended that the Board recognize as em- ployees those who `work for wages or salaries under direct supervision,' and as independent contractors, those who `undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, materials, and labor and what they receive for the end result, that is, upon profits.' " 4 In bal- ancing these criteria establishing independent contractors us opposed to employees, we find that under the circumstances of this case, par- ticularly since the news vendors are free to select their own locations and are free to sell competing newspapers, the Employer does not exercise sufficient control over the manner and means of the vendors' operations to constitute the vendors employees of the Employer.-' [The Board dismissed the petition.] s Los Angeles Evening Herald and Express, etc., 102 NLRB 103. Hearst Consolidated Publications , Inc., et al. , 83 NLRB 41 ; Los Angeles Evening Herald and Express, etc., supra. The East Ohio Gas Company and The Natural Gas Workers Union Local 555, Building Service Employees ' International Union , AFL-CIO. Case No. 8-CA-2795. February 15, 1963 DECISION AND ORDER On October 29, 1962, Trial Examiner James A. Shaw issued his Intermediate Report, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Intermediate Report. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modification. 140 NLRB No. 140.