The State Journal

National Labor Relations Board - Board Decisions

Jun 2, 1975

218 N.L.R.B. 151 (N.L.R.B. 1975)

THE STATE JOURNAL
Federated Publications , Inc. d/b/a The State Journal
and Teamsters Local Union No. 580, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Ind. Case 7-
CA-11073
June 2, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On December 23, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a motion to strike the Respondent's exceptions and
brief and a brief in support of the Administrative
Law Judge's Decision.'
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 considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Federated Publications, Inc. d/b/a The State Jour-
nal, Lansing, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph 2(b) of
the recommended Order:
"(b) Upon request, recognize and bargain with
Teamsters Local Union No. 580, International
rotherhood of Teamsters, Chauffeurs, Warehouse-E
men and Helpers of America, Ind., as the exclusive
collective-bargaining representative of the employees
in a unit of all full-time and regular part-time
contract drivers, also known as contract haulers,
employed by The State Journal at its Lansing,'
Michigan, place of business, excluding guards and
supervisors as defined in the Act, respecting rates of
pay, wages, hours, or other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement."
218 NLRB No. 20
151
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Respondent's exceptions and brief were timely filed but the bnef,
which was in excess of 20 pages, contained no subject codex nor table of
cases as required by Sec. 102.46(j) of the Board's Rules and Regulations.
This error was corrected by the Respondent before the General Counsel's
motion to strike was received by the Board: Accordingly, the General
Counsel's motion to strike the Respondent's bnef is denied.
2 At fn. 18 of his Decision , the Administrative Law Judge inadvertently
omitted the word "direct" from the first sentence of the footnote. This
inadvertence is hereby corrected so that the sentence reads "Whether
Hickey actually had direct knowledge of the drivers' union activities is not
controlling since there is strong circumstantial evidence of discrimination."
3 As noted by the Administrative Law Judge at fn. 24 of his Decision,
four employees, Iverson, McKanna , Ruthledge, and Kaiser, perform work
within the unit of drivers on a regular basis for a sufficient period of tune
during each week or other appropriate calendar period to demonstrate that
they have a substantial and continuing interest in the wages , hours, and
working conditions of the full-time employees in the unit . Par. 4 of the
section of the Administrative Law Judge's Decision entitled "Conclusions of
Law" is therefore amended to include these four employees in the
appropriate unit as regular part-time drivers or haulers.
4 In adopting the Administrative Law Judge's recommendation that an
affirmative bargaining order issue herein to remedy Respondent's 8(a)(1)
and (3) violations, Member Fanning does not rely on Steel-Fab, Inc., 212
NLRB 363 (1974). Chairman Murphy and Member Jenkins note that the
Administrative Law Judge's reference to Steel-Fab relates solely to an
assertion of the General Counsel and that the remedy recommended by the
Admimstrative Law Judge is based upon N.L.RB. v. Gissel Packing Co,
Inc, 395 U.S. 575 (1969).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board, after a hearing
in which all parties were permitted to introduce
evidence, found that we discharged Melvin Barrett,
Stewart Bently, Norman Carrigan, Lyle Cobb,
Charles Cummins, Dennis Goff, Hubert Iverson, R.
B. Jenks, Bruce Kilbourn, Dan Lawson, Robert
Linn, Ralph Martin, Kevin McNamara, Charles
Norris, Kenneth Olmstead, Mark Pluger, Patrick
Reilly, Robert Rogers, Leon Simmons, Hubert
Stockwell, and Lynn Weismiller unlawfully and that
by their discharges we discouraged our employees
from engaging in concerted activities and from
becoming or remaining members of Teamsters Local
No. 580, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Ind., or any other labor organization.
WE WILL offer the above-named employees
their former jobs or, if their jobs no longer exist,
substantially equivalent positions without preju-
dice to their seniority or other rights and
privileges.
WE WILL pay them any backpay they have lost
because we discharged them, with interest at 6
percent.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge any employee for the
same reasons for which the Board found that we
discharged the above-named employees.
WE WILL NOT unlawfully discharge employees
for lawfully engaging in union activities or
protected concerted activities.
WE WILL NOT discourage concerted activities of
our employees by unlawfully discriminating in
any manner in respect to their hire and tenure of
employment or any term or condition of employ-
ment.
WE WILL, upon request, recognize and bargain
with Teamsters Local Union No. 580, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., as
the exclusive collective-bargaining representative
of the employees in a unit of all full-time and
regular part-time contract drivers, also known as
contract haulers, employed by The State Journal
at its Lansing, Michigan, place of business,
excluding guards and supervisors as defined in
the Act, respecting rates of pay, wages, hours, or
other terms and conditions of employment and, if
an understanding is reached, embody such
understanding in a signed agreement.
All our employees are free to remain, or refrain
from becoming or remaining, members of a labor
organization.
FEDERATED
PUBLICATIONS, INC.
D/B/A THE STATE
JOURNAL
DECISION
LowELL GoERLICH, Administrative Law Judge: The
charge filed by Teamsters Local Union No. 580, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Ind., herein called the
Union, on April 15, 1974, was served on Federated
Publications, Inc. d/b/a The State Journal,' the Respon-
dent herein, on April 16, 1974. A complaint and notice of
hearing was issued on June 19, 1974. The complaint
charged that the Respondent on April 11, 1974, discrimina-
torily, in violation of Section 8(a)(3) of the National Labor
Relations Act, as amended, herein referred to as the Act,
discharged 21 employees.
The Respondent filed a timely answer denying it had
engaged in the unfair labor practices alleged.
The case came on for trial at Mason, Michigan, on July
29 and July 30, 1974, and at Lansing, Michigan, on July 31,
1974, September 11 and September 12, 1974, and October
3, 1974. Each party was afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, to
argue orally on the record, to submit proposed findings of
fact and conclusions, and to file briefs. All briefs have been
carefully considered.
FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS
THEREFOR
1. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material
herein a Delaware corporation.
At all times material herein, Respondent has maintained
a place of business at 120 East Lenawee in the city of
Lansing, and State of Michigan, herein called the Lansing
place of business . Respondent is, and has been at all times
material herein, engaged at said place of business in
publishing a daily and Sunday newspaper and in related
operations.
During the calendar year ending December 31, 1973,
Respondent, in the course and conduct of its newspaper,
publishing operations, derived a gross revenue in excess of
$200,000; held membership in, or subscribed to, various
interstate news services, including United Press Interna-
tional and Associated Press; published various nationally
syndicated features; advertised various nationally sold
products, the revenue for which annually exceeded
$50,000; and purchased and caused newsprint, ink,, and
other goods and materials valued in excess of $50,000 to be
transported to its Lansing, Michigan, place of business in
interstate commerce directly from 'States of the United
States other than the State of Michigan.
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is and has been at all times material herein a
labor organization within the meaning of Section 2(5) of
the Act.
i The name of the Respondent was so corrected at the hearing.
2 The facts found herein are based on the record as a whole and the
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses, and the
teachings of N.L.R.B. v. Walton Manufacturing Company & Loganville Pants
Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in
contradiction to the findings herein, their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief. All
testimony has been reviewed and weighed in the light of the entire record.
No testimony has been pretermitted.
THE STATE JOURNAL 153
III. THE UNFAIR LABOR PRACTICES
A. The Discharges and Replacements
First: The Respondent holds similar contracts3 with 21
persons who are referred to herein as contract drivers or
contract haulers. For About, 2-1/2 hours each clay the
contract driver drops off newspapers at specified stops on a
designated route for distribution by paperboys and others.
In this occupation the contract hauler uses his own motor
vehicle.
Each day of the week the contract hauler (or his
substitute) appears at the Respondent's loading dock at an
assigned time to load the newspapers for his route. On
arriving at the dock, the driver obtains a manifest from a
mailbox. The manifest, prepared by the Respondent,
designates the location for the drops, the sequence of the
drops, and the number of newspapers to be dropped at
each stop. Contract drivers also deliver items for paperboys
such as rubber-bands, contest prizes and candy bars,
payroll checks for the stationmaster, mail for the paper-
boys, and shortage notices. Drivers pick up "Trash, papers
that weren't used the day before, covers, the top bundles of
papers with odds and ends, scrap paper and the bottoms
b ave a brown wrapping on them, along with the plastic tie
that goes round the bundle."
Contract drivers first came into existence as such in 1964.
Prior to that date the Respondent carried employees on its
payroll who performed the duties of the contract driver.
These employees punched a timeclock and were paid on an
hourly basis. Social security and income taxes were
deducted from their paychecks .4 Some were furnished
company trucks, others used their own vehicles to
transport the newspapers. These employees sometimes
used substitutes (as do the contract drivers) and paid them
themselves . Indeed, some of these employees became
contract haulers, after which their work assignments
remained unchanged.5
In the early part of March 1974, a group of the contract
drivers met at contract driver Charles Norris' home. Topics
discussed were "[s]uch'as waiting times, loading our own
inserts, how we' were paid, trying to break down our routes
and see how each individual was paid, to see how much
each one was making as far as profit " The possibility of
"getting into the union" was also discussed.
On April 6, 1974, a group of employees again met at the
Teamsters Hall at which time the contract drivers present
signed union authorization cards.
Several days later Norris was informed by Harry W.
Schopp, transportation supervisor, that Richard J. -Ferris,
circulation director, desired to talk with him. The conver-
sation concerned "waiting time." 6 Norris expressed his
point of view on "waiting time" and Ferris asked him if the
"other guys felt the same way." Norris replied that he
could not speak for all of them, but some of them did.
Ferris commented that "we all had problems and we
should be able to work them out and he would like to talk
to everybody and work them out."
In the forepart of April 1974, prior to April 11, Frank
Whipple, business manager of the Respondent, phoned
contract driver Robert Linn at his home . Whipple
indicated that the "boys" had held a meeting and he asked
Linn whether he knew anything about it. Linn replied that
he did not attend the meeting, but he knew the meeting
had occurred. Linn also told Whipple that the drivers'
"gripe" was waiting for papers and "not getting any pay for
it over a long period of time or maybe not any
sometimes." 7
On April 10, 1974, contract driver Melvin Barrett
remarked to Mailing Room Superintendent Louis R.
Keller that one of the reasons "the fellows" were talking
about joining the Union was theylanner in which the
mailbags were scattered "all over the dock." Barrett further
opined that "they were all going to go union." Keller said
he had not heard anything about a union. Barrett replied
that he didn't think it was the best thing for the dock to be
union, but "everybody was pretty upset that they were
being jacked around." s
On April 11, 1974, the next day, Ferris and five others
appeared at the Western Union agency at about 9 p.m.,
pursuant to ah appointment made sometime prior to 6 p.m.
Ferris furnished the Western Union agent with the copy
3 A typical contract read as follows.
It is hereby agreed as follows:
1. Newspaper agrees to furnish Contractor daily with newspapers
for delivery at specific times and at addresses designated upon a
manifest accompanying such newspapers and to pay Contractor for
such services $ 117.00 per week or such other sum as may from time to
time be agreed upon.
2. Contractor agrees to deliver the newspaper to the addresses
designated and if unable to, make delivery within a specified time to
notify Newspaper of such mability in advance; to provide all necessary
delivery equipment, pay for the cost of operation thereof and to employ
on his own account any other person necessary for the performance of
such services.
3. It is mutually agreed that Contractor shall conduct and
maintain its services on an independent Contractor basis and that
Newspaper exercises no control over Contractor 's operation other than
specifying time and place of delivery. It is further mutually agreed that
Newspaper will incur no liability in connection with the use or
operation of Contractor's vehicles or equipment and Contractor agreed
to protect and indemnify Newspaper against any such liability.
4. This contract shall continue upon a week to week basis and
until terminated by either party.
5. The places to which the said party agrees to deliver THE STATE
JOURNALS are Trips 33 & 92 daily. And on Sunday trips 6 & 92 and all
intervening points which shall be designated from time to time by said
first party.
The language in a contract executed with driver Dennis Goff on February
13, 1974, varied somewhat from that set out above. The termination clause
read : "The Company and Hauler agree that either party may terminate this
agreement upon (15) days written notice, or such shorter time as may be
mutually agreed upon."
4 This is not true of the contract drivers. Contract drivers handle their
own Income tax returns.
s In fact, one employee used the same vehicle (his own) after he became
a contract driver.
6 Each contract driver was assigned a time at which he was to report for
loading the newspapers designated for his route . "Waiting time" was the
time which elapsed between the reporting time and the time the driver
actually received the newspapers for loading.
7 Whipple was not called as a witness.
R Keller denied that the Union was mentioned during the conversation.
Kelley's denial is not credited.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a telegram to be sent to the 21 contract drivers, advising
them of the immediate termination of their contracts.9
Ferns requested that the telegrams be delivered personally
to each driver by midnight.'° The telegrams were dis-
patched between 10 p.m. and 1:30 a.m. and delivered by
taxicab.
During the week prior to Easter (Easter was April 14) a
representative of U-Haul Company of Northeast Michigan
received a phone call from the Respondent "asking the
rates of renting an Econoline." The Respondent wanted
over 10 vans "almost immediately" starting "that week-
end." U-Haul Company was unable to furnish the vans
requested.
Nevertheless, the contract drivers were replaced by
employees' designated , as assistant district managers.
Twelve district managers, who supervised the carriers,
worked full time. Assistant district managers worked part
time 5 days a week, about 20 to 25 hours a week. These
employees performed the same tasks as the contract drivers
with the contemplated additional duties (according to
Publisher Maurice Hickey) of checking complaints, helping
with collections, and distributing sales materials. Appar-
ently these additional duties never materialized.
Publisher Hickey assumed the full responsibility of
replacing the contract haulers declaring that it was his idea.
Hickey asserted that in November or December 1973, he
received a "Go" letter from headquarters emphasizing
increased sales power which caused him to consider adding
more assistant district managers." According to Hickey,
he communicated this idea to his subordinates who "were
some what luke warm to it." However, in light of a fall in
subscriptions because of a price increase on March 31,
1974, Hickey said he decided "there wasn't any sense of
probably waiting any longer." About a week later 12
Hickey discussed the matter with Ferris and Whipple. It
was decided that the new employees would take over on
Friday and Saturday. As noted above the U-Haul
Company was contacted. -
A number of the replacements for the contract drivers
were college students ,13 and when college let out in May or
June the Respondent "experienced quite- a bit of turnover."
According to Hickey a combination of the turnover
problems and the possibility of the Respondent being held
liable for backpay for the discharged contract haulers
caused him to reinstate the contract haulers.
No contract drivers were considered for the position of
assistant district manager. Hickey explained:
I thought about that but my opinion was, like I said
earlier, the way they had been contracted out I had no
disagreement with the way they were doing their job
particularly, but my feeling was these people-they
were used to doing it a certain way for many, many
years.14 I figured it's hard to teach people different
ways to do it. I thought it would be much easier and
make more sense to bring some new people in with
perhaps a little different, a. little better backgroundand
perhaps some cases with a sales background, and in the
long run we would have been better off that way.
According to Hickey, prior to their employment the
replacements had not been familiarized with the routes.
Hickey denied that prior to April 11, 1974, he knew of
any union activity- on the part of the contract haulers.15
The Union's letter dated April 10, 1974, demanding
representative status,, was received by the Respondent on
April 19, 1974. The Respondent,had unilaterally increased
the contract drivers' remuneration under their contracts on
February 3, 1974, and, as noted, on February 13, 1974, the
contract was executed between driver Dennis Goff, a
student, and the Respondent.
A labor agreement is presently in existence between the
Respondent and the Union covering "drivers and paper
haulers"; all "part-time drivers" are excluded. The covered
drivers haul "State Runs." On Sundays the contract drivers
"haul the same trip[s]." The union drivers sometimes use
substitutes.
Second- The General Counsel contends that the Respon-
dent's motive for replacing the contract drivers was to
thwart and scotch these persons' concerted activities. On
the other hand, the Respondent attributes 'the precipitous
replacement of the contract drivers to' a "Go" letter and
Hickey's resolve to combat subscription loss by hiring
assistant district managers . The alleged reasons for the
Respondent's action do not have a convincing ring and
Hickey's testimony on this subject is considered 'a
fabrication of the whole cloth 16 tailored as a defense to this
proceeding.17 In view of the fact that Hickey's subordi-
nates knew of the concerted activities of the contract
drivers, it is highly unlikely that Hickey did not' also
possess this knowledge. His testimony to the contrary is
discredited.18 Moreover, considering the astuteness shown
9 The telegram read:
A rearrangement of transportation operation has been made in an
effort to strengthen our sales and market penetration throughout our
circulation area. As a result you are hereby notified that your contract
delivery agreement is terminated this date, Thursday, April 11, 1974.
The check for your contract services week ending April 13, 1974 and
the check for the 7th day termination notice have been mailed to you.
Sincerely yours
The State Journal, Richard J. Ferris
10
Ferris told the agent that "he wanted them [the telegrams] to go out
by midnight and the reason he wanted them out by midnight was because
they wanted each telegram delivered personally to each fellow and if they
weren't they were subject to a law suit." Ferris was not called for testimony.
11 The "Go" letter was not produced at-the hearing.
12 Hickey was indefinite concerning the date. He testified, "I suppose it
was at the end of the first week in April or the beginning of the second
week."
13 Two of the contract drivers, Kevin McNamara and Dennis Goff, were
also students.
14 Student Goffs contract was executed February 13 , 1974; student
McNamara's contract was executed March 16, 1973.
15 Neither Ferns nor Whipple was called to corroborate Hickey's
testimony.
16 Hickey's demeanor has been considered in reaching this conclusion.
17 When the reason given for a discharge is false the inference may
properly be drawn that there is another motive for the discharge, Shattuck
Denn Mining Corporation (Iron King Branch) v. N.LRB., 362 F.2d 466,469-
470 (C.A. 9, 1966); The Great Atlantic and Pacific Tea Co., Inc. v."N.L.RB.,
354 F.2d 707, 709 (C.A. 5, 1966); N.L.RB. v. Melrose Processing Co., 351
F.2d 693, 698 (C.A. 8, 1965).
is Whether Hickey actually had knowledge of 'the drivers' union
activities is not controlling since there is strong circumstantial evidence of
discrimination . As was said by the Supreme Courtin NLRB. v. Link-Belt
THE STATE JOURNAL 155
by Hickey while testifying and the well-known emphasis
newspaper publishers place on the prompt delivery of their
newspapers, it is incredulous that he should have ordered
the hiring of inexperienced assistant managers (some of
them college students) and loosed them to distribute papers
on routes with which they were not familiar. Indeed, his
insistence on the replacement of the drivers was of such
immediate import that rather than serve the drivers with
the week's notice required by the contract he elected to pay
a week's wages in advance for the work not performed.
Hence, Hickey was willing to incur an unnecessary loss
although his alleged objective was to reduce losses.
Moreover, although Hickey claimed that he sought
people with "a little better background and perhaps some
cases with a sales background," nevertheless, he incongru-
ously provided only a few days for the recruitment of these
employees, a period which seems grossly inadequate to
obtain the qualified people he allegedly desired.
These circumstances confirm that the Respondent was
bent not only on scotching the drivers' concerted activities
at once but also on effecting the replacement of the drivers
before the Respondent could have received formal notice
of the Union's interest. Indeed, in this respect it is
significant that the Union involved was the one with which
the Respondent had a contractual relationship covering
other drivers. Obviously it is clear that it did not want to
deal with this Union as the bargaining agent for the
contract drivers, although it is considered that fair labor
relations have been maintained between it and the Union
and other unions. Nor is lack of union animus, as urged by
the Respondent, controlling. In the case of N.L.R.B. v.
Afrak Coal Company, Inc., 322 F.2d 311, 313 (C.A. 9, 1963),
the court said, "nor can, we accept the respondents' theory
that proof or lack of proof of prior anti-union animus is
controlling. Such a rule would automatically always
insulate the first unfair labor practice charged against an
employer...." See also Stoffel Seals Corporation, 199
NLRB 1084 (1972); Terry Industries of Virginia, Inc., 164
NLRB 872, 874 (1967).
That the Respondent aimed to rid itself of the contract
drivers as persons rather than to eliminate their jobs is
borne out by the fact that it offered none of them assistant
district manager jobs; nor did it interview any of them to
ascertain whether they were qualified for these jobs.
Indeed, this was true although several of the drivers were
students and the Respondent was, at the same time, hiring
students as assistant district managers. Hickey's explana-
ti on of the reason for the Respondent's failure to consider
the drivers for assistant district manager positions is
neither plausible nor reasonable.
The inference of discriminatory motivation "is sustained
and buttressed by the fact that the [explanation offered by
the employer] failed to stand under scrutiny." N.L.R.B. v.
Griggs Equipment, Inc., 307 F.2d 275, 278 (C.A. 5, 1962);
.N L.R.B. v. Thomas W. Dant, et aL copartners d/b/a Dant
d, Russell 'Ltd., 207 F.2d 165, 167 (C.A. 9, 1953). The
timing of the discharges, upon the genesis of concerted
Company, 311 U.S. 584, 602 (1941), "Me Board was justified in relying on
circumstantial evidence of discrimination and was not required to deny
relief because there was no direct evidence that the employer knew these
men had joined Amalgamated and was displeased or wanted to make an
activity, strengthens this inference and strongly supports
the conclusion that the real motive of the Respondent was
unlawful and discriminatory . As was observed in L. J.
"Lee" Folkins, d/b/a Standard Oil Distributors v. N.L.R.B.,
500 F.2d 52, 53 (C.A. 9, 1974): "Circumstantial evidence,
including the timing of [the] discharge, coupled with [the
employer's ] apparently fabricated business justifications, is
sufficient to support the . . . findings" of discriminatory
motivation. Timing, knowledge and unusual actions of the
Respondent support this conclusion.
Accordingly, it is found (unless the contract drivers are
held not to be employees within the meaning of the Act)
that the discharges of the 21 contract drivers on April 11,
1974 were in violation of Section 8(a)(3) and (1) of the Act.
B. The Independent Contractor Question
"Where the person for whom the services are performed
retains the right to control the manner and means by which
the result is to be accomplished, the relation is one of
employment. On the other hand, where control is reserved
only as to the result sought, the relationship is that of
independent contractor." The News-Journal Company, 180
NLRB 864, 867 (1970), affd. 185 NLRB 158 (1970), enfd.
447 F.2d 65 (C.A. 3, 1971), the case which controls the
decision herein, citing Pure Seal Dairy Co., 135 NLRB 76
(1962).
In the News Journal Company case, as in the instant case,
the status of contract drivers or haulers was concerned. In
each case the contracts were similar . The drivers supplied
their own trucks and delivered papers in bundles from the
company plant to locations designated by the Company
along routes in designated areas. It was expressly agreed
that the drivers should have the status of independent
contractor. Route territory changes were initiated by the
Company, but some changes were made at the request of
the driver for his own accommodation. Drivers were
required to report to the Company's loading dock at a
specified time and required to wait if the edition was late.
The driver then loaded his papers and dropped them off at
prearranged spots for carrier boys and others.19 The
employer maintained no personal record, as such, on the
drivers. Drivers performed tasks other than the delivery of
the Company's papers.
Additional indicia of employee status and employer
control in the instant case are : The Respondent required
drivers to submit information similar to an employee
application; unilaterally changed the drivers' loading times
although it resulted in inconvenience to them; unilaterally
increased remuneration under the contracts to accommo-
date increased gasoline prices without amending the
contracts; has changed routes and paid for waiting time
without amending the contract; has unilaterally added or
changed stops along the routes and drivers have not been
compensated when new stops have been added; has
changed the manifests at will although drivers were not
allowed this privilege except upon approval of the
Respondent. In some instances, the Respondent has
example of them."
19 In the News Journal Company case, drivers were permitted to drop
papers out of sequence. This was not true in the instant case.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permitted drivers to exercise seniority when route vacan-
cies occurred. The Respondent demanded an explanation
for paper shortages and unilaterally decided whether
drivers would be paid for correcting them. In respect to
newspaper inserts, the Respondent required the drivers to
go to a different part of the Respondent's premises and
there load their own inserts on the trucks. The Respondent
required drivers to deliver sales contest prizes, mail for
carriers, gifts for them, rubberbands, plastic bags, and
payroll checks for station managers, all of which duties are
not reflected in their contracts. The Respondent instructed
the drivers on safety; required drivers to notify the
Respondent when papers were delivered late; recorded the
time the drivers left the dock and the time they reached
their drop off spots; ordered a driver to get rid of an
unsatisfactory substitute and removed one itself; procured
a driver substitute while a driver was absent with a broken
leg; and, over a driver's protest, ordered him to deliver
papers to a stationmaster's kitchen because it did not want
to lose the stationmaster. The Respondent has required the
drivers, on occasion, to leave newspapers at various
Lansing public schools for which they receive no extra
compensation. The Respondent has required drivers to
arouse recipients rather than leave papers outside and to
pick up and return trash consisting of unused papers, scrap
paper, and wrappings without additional compensation or
change in contracts. The Respondent issued a directive
that drivers should not bring unauthorized persons,
including children, into the dock areas, and that every
driver was responsible for closing the rear door of his truck
when he finished loading. A driver used the Respondent's
truck to deliver papers to the post office. Where there was a
split load, the Respondent did not allow the driver to
double load although it was more convenient for him.20
The contract drivers had no proprietary interests in the
newspapers they delivered nor did they own or control
their routes. Their profit opportunities were limited. They
could not,decide when they would service their assigned
routes. Prior to 1963, the Respondent treated the same type
of driver as an employee.
Thus, it is clear. from the foregoing facts that the
Respondent "retains the right to control the manner and
means by which the result is to be accomplished" within
the meaning of the News Journal Company case, supra
20 A split route is one which runs in different directions from the
Company's loading dock. The driver is required to deliver the papers in one
direction and then return to the dock to pick up the additional papers and
deliver them in the other direction.
21 In reaching this conclusion, all citations of the parties have been
reviewed , as well as the decision of the Michigan Employment Security
Commission.
22 See McEwen Manufacturing Company, 172 NLRB 990 (1968); Lev,
Strauss & Co., 172 NLRB 732 (1968), N.L.RB v. Gissel Packing Co., Inc.,
supra.
23 The card contained the language "hereby authorize Local Union No.
580 to represent me and, in my behalf, to hold elections , negotiate all
agreements as to hours of labor, wages and other employment conditions."
24 The parties stipulated that the appropriate unit was:
All contract drivers, also known as contract haulers, employed by
the State Journal at its Lansing , Michigan place of business, excluding
guards and supervisors as defined in the Act.
The Respondent insisted upon the inclusion of the regular substitutes in
Accordingly, it is found that the contract drivers are
employees within the meaning of the Act.21
C. The Gissel Aspects
The General Counsel asserts that the case ofN.LRB. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969), is applicable
and that an order should be entered in conformity with
Steel-Fab, Inc., 212 NLRB 363 (1974). A Gissel bargaining
order is issued to remedy violations of the Act which have
prevented the holding of a free and fair election. The
8(a)(3) violations herein found are sufficient to induce a
Gissel remedy and it, with the appropriate order, is
recommended. Kirvan Truck Line, Inc., 207 NLRB 225
(1973).
The General Counsel offered dated, valid,22 authenticat-
ed union authorization cards 23 signed prior to April 11,
1974, by 11 contract drivers and valid undated union
authorization cards signed prior to April 11, 1974, by 2
contract drivers whose names appear among the 21
contract drivers on the eligibility list of contract drivers in
the appropriate unit.24 Thus the Union had been designat-
ed as the representative of the majority of the employees in
the appropriate unit.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will
effectuate the purposes of the Act for jurisdiction to be
exercised herein.
3. By unlawfully discharging Melvin Barrett, Stewart
Bently, Norman Carrigan, Lyle Cobb, Charles Cummins,
Dennis Goff, Hubert Iverson, R. G. Jenks, Bruce Kil-
bourn, Dan Lawson, Robert Linn, Ralph Martin, Kevin
McNamara, Charles Norris, Kenneth Olmstead, Mark
Pluger, Patrick Reilly, Robert Rogers, Leon Simmons,
Hubert Stockwell, and Lynn Weismiller, employees within
the meaning of the Act, on April 11, 1974, the Respondent
engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.
4. All contract drivers, also known as contract haulers,
employed by the State Journal at its Lansing, Michigan,
place of business, excluding guards and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
the appropriate unit in addition to the 21 contract drivers. Charles Iverson
was a substitute for driver Hubert Stockwell regularly I day a week; Tim
McKanna was a substitute "almost" every Sunday for driver Robert Linn
for a period of 3 years prior to April 11, 1974; and Leon Rutledge was a
substitute for driver Charles Norris "pretty much " every weekend (Saturday
and Sunday); Ralph Martin used substitute Rick Kaiser to deliver Sunday
newspapers from December 1973 until April 11, 1974; driver Robert
Rogers, for the past 1-1/2 years, used fellow driver Mark Pluger as a regular
weekend substitute . Pluger is included as an eligible employee on the
stipulated eligibility list. Other substitutes did not possess the attributes of a
regular substitute . If Iverson, McKanna, Rutledge , and Kaiser were added
to the eligibility list, the total eligible employees would be 25. Since the
Union possessed 13 valid authorization cards, whether the substitutes are
included in the appropriate unit will not affect the remedy recommended
herein. Thus, no decision on this point is deemed necessary.
It having been found that the drivers are employees rather than
independent contractors, they cannot be supervisors as maintained by the
Respondent because their relationship while substituting is with the
Respondent as an employer and not with the drivers.
THE STATE JOURNAL
Section 9(b) of the Act.
5. The Respondent's violations of Section 8(a)(3) of the
Act have created an atmosphere in which a free and fair
election cannot take place; a bargaining order is the only
appropriate remedy for such misconduct.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THB REMEDY
It having been found that the Respondent has engaged in
unfair labor practices which have created an atmosphere in
which a free and fair election cannot take place and that a
bargaining order is the only appropriate remedy for the
Respondent's misconduct, it is recommended that a
bargaining order be entered.
It having been further found that the Respondent
unlawfully discharged Melvin Barrett, Stewart Bently,
Norman Carrigan, Lyle Cobb, Charles Cummins, Dennis
Goff, Hubert Iverson, R. G. Jenks, Bruce Kilbourn, Dan
Lawson, Robert Linn, Ralph Martin, Kevin McNamara,
Charles Norris, Kenneth Olmstead, Mark Pluger, Patrick
Reilly, Robert Rogers, Leon Simmons, Hubert Stockwell,
and Lynn Weismiller on April 11, 1974, it is recommended
that Respondent remedy such unlawful conduct. It is
recommended in accordance with the Board policy25 that
the Respondent offer said employees immediate and full
reinstatement to their former positions or, if such positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges and make them whole for any loss of earnings
that they may have suffered as a result of the discrimina-
tion against them by payment to them of a sum of money
equal to the amount they would have earned from the date
of their discriminatory discharges to the date of an offer of
reinstatement, less net earnings during such period to be
computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and including interest at the rate of 6 percent per
annum in the manner set forth in Isis Plumbing & Heating
Co., 130 NLRB 716 (1962).
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this
proceeding, and pursuant to Section 10(c) of the Act, it is
recommended that the Board issue the following:
ORDER26
Respondent Federated Publications, Inc. d/b/a The
State Journal, Lansing, Michigan, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from discouraging concerted
activities of its employees or membership in Teamsters
Local Union No. 580, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., or any other labor organization, by,
25 See The Rushton Company, 158 NLRB 1730, 1740 ( 1966).
26 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and order, and all objections thereto shall be
157
unlawfully discriminatorily discharging any of its employ-
ees, or by unlawfully discriminating in any manner in
respect to their hire and tenure of employment of any term
or condition of employment in violation of Section 8(a)(1)
,and (3) of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Melvin Barrett, Stewart Bently, Norman
Carrigan, Lyle Cobb, Charles Cummins, Dennis Goff,
Hubert Iverson, R. G. Jenks, Bruce Kilbourn, Dan
Lawson, Robert Linn, Ralph Martin, Kevin McNamara,
Charles Norris, Kenneth Olmstead, Mark Pluger, Patrick
Reilly, Robert Rogers, Leon Simmons, Hubert Stockwell,
and Lynn Weismiller immediate and full reinstatement to
their former positions or, if such positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, discharging if
necessary any employees hired to replace them, and make
them whole for any loss of pay that they may have suffered
by reason of the Respondent's discrimination against them
in accordance with the recommendations set forth in the
section of this Decision entitled "The Remedy."
(b) Upon request, recognize and bargain with Teamsters
Local Union No. 580, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., as the exclusive collective-bargaining
representative of the employees in a unit of all contract
drivers, also known as contract haulers, employed by the
State Journal at its Lansing, Michigan, place, of business,
excluding guards and supervisors as defined in the Act,
respecting rates of pay, wages, hours, or other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(d) Post at its premises at Federated Publications, Inc.,
d/b/a The State Journal, Lansing, Michigan, copies of the
attached notice marked "Appendix." 27 Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by the Respondent's
representative, 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 notices to employees are customarily , posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director of Region 7, in writing,]
1within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
deemed waived for all purposes.
27 In the event that the Board's 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."