Newspaper & Periodical Drivers Local 921

National Labor Relations Board - Board Decisions

Jun 25, 1973

204 N.L.R.B. 440 (N.L.R.B. 1973)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Newspaper & Periodical Drivers' & Helpers Union Lo-
cal 921 , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
and San Francisco Newspaper Printing Co., Inc. and
Douglas Brown, Walter De Long, Philip T. Walker,
Marvin W . Weissensee , Kenneth C. Woliman, John
Roy Conway, Leroy Lester Holbrook, Darrell E.
Baker, Willi P . Kolb. Cases 20-CE-68, 20-CE-69,
20-CE-70, 20-CE-71, 20-CE-72, 20-CE-73, 20-
CE-74, 20-CE-76, and 20-CE-77
June 25, 1973
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On November 8, 1971, the National Labor Rela-
tions Board issued a Decision and Order dismissing
the complaint in the above -entitled proceeding, upon
concluding that certain newspaper dealers, with
whom it had been alleged the Respondent Employer
had agreed to cease doing business , were employees
of Respondent Employer and that therefore the rela-
tionship between the Employer and the dealers was
not controlled by Section 8(e) of the Act .' By so hold-
ing, the Board found it unnecessary to determine
whether , assuming the dealers were not employees of
Respondent Employer, the effectuation of an agree-
ment requiring Respondent Employer to terminate its
contracts with the dealers constituted a violation of
Section 8(e).2 Thereafter , the Charging Parties peti-
tioned the United States court of Appeals for the
Ninth Circuit to review the Board ' s Order.
On June 12 , 1972, the court issued its decision, find-
ing that the Board erred in concluding that the news-
paper dealers were employees , finding instead that
they were independent contractors and remanding
the case to the Board to determine whether in light of
the court's finding a violation of Section 8(e) had
occurred .3 On November 13, 1972 , the Supreme Court
of the United States denied a petition for writ of cer-
'194 NLRB 37
2 No issue has been raised as to the timeliness of the filing of the charges
with respect to the limitation contained in Sec 10(b) of the Act The initial
execution of the agreement in question between Respondent Employer and
Respondent Union took place more than 6 months prior to the date the
instant charges were filed and is therefore immune from attack in this pro-
ceeding. The implementation of the agreement within the 6 -month period,
with which we are here concerned , however, is not so immune Drivers,
Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and
Helpers Local Union No 695, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (John B Threlfall d/b/a Threlfall
Construction Company), 152 NLRB 577, 580, Milk Drivers and Dairy Employ-
ees, Local Union No 537 (Sealtest Foods, A Division of National Dairy Products
Corporation), 147 NLRB 230, 231.
2462 F.2d 699 (1972)
tiorari. Thereafter, the Board invited statements of
position from the parties in light of the remand order.
Such statements were received from the Charging
Parties and Respondent Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has again reviewed the entire record in
light of the exceptions to the Trial Examiner's Deci-
sion, the briefs and statements of position, and the
court's decision and makes the following additional
findings and conclusions:4
As set forth more fully in the Trial Examiner's De-
cision attached to the Board's earlier Decision and
Order, the Respondent Employer, a Newspaper pub-
lisher, distributes its newspapers throughout the Oak-
land-San Francisco metropolitan area. The
distribution area is divided into "territories" and with-
in each territory a person in charge of circulation hires
or contracts with individual carriers (adults and boys)
who make the actual home deliveries to subscribers.
The persons in charge of the territories, or their car-
riers, also deliver to newspaper stands on the streets.
Over the years, Respondent Employer has had succes-
sive collective-bargaining agreements with Respon-
dent Union, covering the persons in charge of those
territories lying within the geographical jurisdiction
specified in the agreements. This geographical juris-
diction increased gradually until, under the agree-
ment in effect when the instant charges were filed, it
included the territories of the Charging Parties herein,
who are some of the "dealers" found by the court in
this case to be independent contractors. Prior to the
agreement, the Union had attempted, unsuccessfully,
to organize the dealers. Under the terms of the agree-
ment, those dealers whose territories lie within the
Union's expanded geographical jurisdiction would
have their dealership contracts terminated according
to a prescribed time schedule and would continue to
function, if at all, as unit employees subject to the
collective-bargaining agreement and its union-securi-
ty clause. Whether they continued at all would be by
mutual agreement between the Employer and them-
selves.
4 The court stated in its opinion- "We reverse and remand for a hearing
on the merits " By this we take the court to mean that we are to determine,
now that the dealers are to be viewed as independent contractors, whether
Sec 8 (e) is violated by the application to them of the agreement before us
Since this issue was fully litigated, we do not think the court intended to
direct us to reopen the record for the taking of additional evidence and we
are satisfied that the case is ripe for decision on the merits upon the existing
record
Member Kennedy, who dissented to the original Decision and Order here-
in, agrees that a remand to the Administrative Law Judge for preparation of
a decision on the merits is unnecessary There are no substantial credibility
resolutions posed by the record herein and he agrees that the Board can now
consider the case on its merits
204 NLRB No. 60
NEWSPAPER & PERIODICAL DRIVERS LOCAL 921 441
Pursuant to the agreement, the contracts of dealers
Chain and Holbrook were terminated within the 6-
month period prior to the filing of the instant charges.
Further terminations pursuant to the collective-bar-
gaining agreement were announced, but their imple-
mentation was restrained by court orders.
Unless justified by some legitimate primary objec-
tive, the provision requiring the termination of the
independent contractor status of the dealers, allowing
them to continue their work only as employees and
union members, presumptively violates Section 8(e).5
Thus, unless the contract terminations, which are in
effect cessations of business, are merely incidental to
the accomplishment of an objective relating principal-
ly to the terms and conditions of employment of em-
ployees in the bargaining unit, their thrust is
secondary and therefore prohibited by the Act.' Un-
der the facts of this case, the issue remaining at this
juncture is, as stated but never reached by the Admin-
istrative Law Judge,' whether the termination provi-
sion "has a primary work preservation objective so as
to insulate it from a Section 8(e) violation." 8
The Union's claim of "work preservation" is based
on the asertion that the job opportunities have been
diminishing in the geographical area that was within
its jurisdiction prior to the current collective-bargain-
ing agreement . In the Union's view, the shifting of the
newspaper circulation away from the city and into
suburban areas not previously within the Union's ju-
risdiction, has necessitated the Union's increasing its
geographical jurisdiction in the suburbs in order to
hold on to the work traditionally performed by unit
employees.
In our view, however, the work preservation aspect
of the contract terminations under attack here is inci-
dental to the cessation of doing business instead of the
other way around. Respondents assert that placing
the work of the dealers under the substantive provi-
sions of the collective-bargaining agreement will cre-
ate more jobs .9 But the agreement does not require
that the work of the dealers be given to employees
from the preexisting unit. It permits retention of the
5 General Teamsters, Chauffeurs, Warehousemen and Helpers , Local 982,
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help-
ers of America (Associated Independent Owner-Operators, Inc ), 181 NLRB
515, 520-521, 529; Milk Drivers and Dairy Employees, Local Union No 537,
supra, 147 NLRB at 235-236
6 Cf Highway Truck Drivers and Helpers, Local 107, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (S & E
McCormick, Inc,), 159 NLRB 84, 101, reversed sub nom A Dune Pyle, Inc
v. N L R B, 383 F 2d 772 (C A 3, 1967), cert. denied 390 U.S. 905, Supple-
mental Decision and Order reported in 199 NLRB No . 63 (cited infra as
McCormick)
7 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
11 194 NLRB 37 (TXD).
9 Dealers who now work up to 7 days a week would henceforth work only
5
former independent dealers to continue distributing
newspapers and it is reasonable to expect that many
of the dealers would be so retained. Thus, no substan-
tial work opportunities would necessarily be added
for employees from the preexisting unit, but rather
there would be new employees who must become
union members .1° Furthermore, the unit would be ex-
panded to cover geographical areas never within the
unit , where any increase in the amount of work done
by the independent dealers would not in itself cause
any decrease in the amount of work available to unit
employees." No claim is made here that changing
dealers into unit employees is necessary to preserve
union standards within the unit or to discourage con-
tracting of unit work.12
Noting also that the Union's president admitted
that, after failing in attempts to organize the dealers,
the Union "decided to do it by contract, by collective
bargaining," we are persuaded that the provision for
termination of the dealers' contracts is aimed princi-
pally at the nonunion independent dealers, not at the
primary employer. The provision, as implemented,
therefore, is secondary and unlawful under Section
8(e).
THE REMEDY
We shall order Respondents to cease and desist
from any effectuation of the agreement to terminate
nonunion dealers who are independent contractors
and to post appropriate notices to that effect. In addi-
tion, since certain dealers were actually terminated
pursuant to the agreement, we shall order that Re-
spondent Employer offer to reinstate their dealership
contracts. In the circumstances of this case we think
such action will adequately effectuate the purposes of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. Respondent Union, Newspaper & Periodical
Drivers' & Helpers Union Local 921, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, its officers, agents, and
representatives, shall:
10 Cf Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous
Truck Terminal Employees, Local Union No 710, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Wilson & Co )
v. N L R B, 335 F 2d 709 (C A D C, 1964) Without deciding what weight
it is entitled to, we also note that in Wilson, unlike the instant case, the
primary employers had, by moving their operations , caused the loss of the
work the union was seeking to recapture through the agreement in question
Cf McCormick, supra, 159 NLRB at 98
iz Id at 100
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from entering into, maintain-
ing, giving effect to, or attempting to enforce the pro-
visions of section 1(b) of the March 22, 1968,
supplemental agreement between Respondent Union
and Respondent Employer, as modified in 1969, to
the extent said provisions are found to be unlawful
herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its business office and meeting halls
copies of the attached notice marked "Appendix
A." 13 Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by a representative of Respondent Union, shall
be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to members are customarily posted. Reasonable
steps shall be taken by Respondent Union to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to com-
ply herewith.
B. Respondent Employer, San Francisco Newspa-
per Printing Co., Inc., San Francisco, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from entering into, maintain-
ing, giving effect to, or attempting to enforce the pro-
visions of section 1(b) of the March 22, 1968,
supplemental agreement between Respondent Union
and Respondent Employer, as modified in 1969, to
the extent said provisions are found to be unlawful
herein.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer to any of the independent contractors,
whose dealership contracts were terminated pursuant
to the unlawful provisions of the supplemental agree-
ment any time since 6 months before charges were
filed in the instant proceeding, reinstatement of their
dealership contracts.
(b) Post at its places of business copies of the at-
tached notice marked "Appendix B." 14 Copies of said
notice, on forms provided by the Regional Director
for Region 20, after being duly signed by a representa-
tive of Respondent Employer, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent Employer to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herewith.
13 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
14 See in 13
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into , maintain , give effect
to, or attempt to enforce any agreement with San
Francisco Newspaper Printing Co., Inc., requir-
ing the termination of its contracts with dealers
who are independent contractors and having
such dealers retained , if at all , as employees sub-
ject to our collective -bargaining agreement with
that employer.
NEWSPAPER & PERIODICAL
DRIVERS' & HELPERS UNION
LOCAL 921. INTERNATIONAL
BROTHERHOOD OF TEAM-
STERS . CHAUFFEURS. WARE-
HOUSEMEN & HELPERS OF
AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.
NEWSPAPER & PERIODICAL DRIVERS LOCAL 921
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enter into, maintain , give effect
to, or attempt to enforce any agreement requiring
the contracts of dealers who are independent
contractors to be terminated and the dealers re-
tained, if at all, as employees subject to our col-
lective-bargaining agreement with Newspaper &
Periodical Drivers' & Helpers Union Local 921.
WE WILL offer to any of the dealers, whose
contract terminations have been found unlawful,
reinstatement of their dealership contracts.
443
SAN FRANCISCO NEWSPAPER
PRINTING CO, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, Box 36047,
450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-3197.