322 U.S. 111 (1944), 336, Labor Board v. Hearst Publications, Inc.

Docket Nº:No. 336
Citation:322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170
Party Name:Labor Board v. Hearst Publications, Inc.
Case Date:April 24, 1944
Court:United States Supreme Court

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322 U.S. 111 (1944)

64 S.Ct. 851, 88 L.Ed. 1170

Labor Board


Hearst Publications, Inc.

No. 336

United States Supreme Court

April 24, 1944

Argued February 8, 9, 1944



1. The meaning of the term "employee" in the National Labor Relations Act is to be determined not exclusively by reference to common law standards, local law, or legal classifications made for other purposes, but with regard also to the history, context and purposes

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of the Act and to the economic facts of the particular relationship. Pp. 120, 129.

2. The determination of the National Labor Relations Board that, in the circumstances of the case, a person is an "employee" under the National Labor Relations Act, may not be set aside on review if it has warrant in the record and a reasonable basis in law. P. 130.

3. The conclusion of the National Labor Relations Board that "newsboys" distributing respondents' papers on the streets of the city were employees under the National Labor Relations Act is supported by the findings and the evidence, and has ample basis in the law. P. 131.

The Board found that the "newsboys" work continuously and regularly, rely upon their earnings for the support of themselves and their families, and have their total wages influenced in large measure by the publishers (respondents), who dictate their buying and selling prices, fix their markets and control their supply of papers; that their hours of work and their efforts on the job are supervised and to some extent prescribed by the publishers or the publishers' agents; and that a substantial part of their sales equipment and advertising materials is furnished by the publishers with the intention that it be used for the publishers' benefit.

4. The Board's designation of the collective bargaining units in this case -- (1) full-time newsboys and "checkmen," engaged to sell papers within the city, and excluding bootjackers, temporary, casual, and part-time newsboys; and (2) newsboys selling at established spots in the city, four or more hours per day, five or more days per week, except temporary newsboys -- was within its discretion, and is sustained. P. 132.

(a) That the Board's selection of the collective bargaining units emphasizes difference in tenure, rather than in function was, on the record in this case, not an abuse of discretion. P. 133.

(b) The Board's exclusion of suburban newsboys from the collective bargaining units, on the ground that they were not organized by the union, was, on the record in this case, not an abuse of discretion. P. 133.

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136 F.2d 608 reversed.

Certiorari, 320 U.S. 728, to review decrees denying enforcement of orders of the National Labor Relations Board (39 N.L.R.B. 1245,1256) and setting aside the orders.

RUTLEDGE, J., lead opinion

MR. JUSTICE RUTLEDGE delivered the opinion of the Court.

These cases arise from the refusal of respondents, publishers of four Los Angeles daily newspapers, to bargain collectively with a union representing newsboys who distribute their papers on the streets of that city. Respondents' contention that they were not required to bargain because the newsboys are not their "employees" within the meaning of that term in the National Labor Relations Act, 49 Stat. 450, 29 U.S.C. § 152,1 presents the important question which we granted certiorari2 to resolve.

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The proceedings before the National Labor Relations Board were begun with the filing of four petitions for investigation and certification3 by Los Angeles Newsboys Local Industrial Union No. 75. Hearings were held in a consolidated proceeding,4 after which the Board made findings of fact and concluded that the regular full-time newsboys selling each paper were employees within the Act and that questions affecting commerce concerning the representation of employees had arisen. It designated appropriate units and ordered elections. 28 N.L.R.B. 1006.5 At these, the union was selected as their representative by majorities of the eligible newsboys. After the union was appropriately certified. 33 N.L.R.B. 941, 36 N.L.R.B. 285, the respondents refused to bargain with it. Thereupon, proceedings under Section 10, 49 Stat. 453-455, 29 U.S.C. § 160, were instituted, a hearing6 was held, and respondents were found to have violated Section 8(1) and (5) of the Act, [64 S.Ct. 853] 49 Stat. 452, 453, 29 U.S.C. § 158(1), (5). They were ordered to cease and desist from such violations and to bargain collectively with the union upon request. 39 N.L.R.B. 1245, 1256.

Upon respondents' petitions for review and the Board's petitions for enforcement, the Circuit Court of Appeals, one judge dissenting, set aside the Board's orders. Rejecting

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the Board's analysis, the court independently examined the question whether the newsboys are employees within the Act, decided that the statute imports common law standards to determine that question, and held the newsboys are not employees. 136 F.2d 608.

The findings of the Board disclose that the Los Angeles Times and the Los Angeles Examiner, published daily and Sunday,7 are morning papers. Each publishes several editions which are distributed on the streets during the evening before their dateline, between about 6:00 or 6:30 p.m. and 1:00 a.m., and other editions distributed during the following morning until about 10:00 o'clock. The Los Angeles Evening Herald and Express, published every day but Sunday, is an evening paper, which has six editions on the presses between 9:00 a.m. and 5:30 p.m.8 The News, also published every day but Sunday, is a twenty-four hour paper with ten editions.9

The papers are distributed to the ultimate consumer through a variety of channels, including independent dealers and newsstands often attached to drug, grocery or confectionery stores, carriers who make home deliveries, and newsboys who sell on the streets of the city and its suburbs. Only the last of these are involved in this case.

The newsboys work under varying terms and conditions. They may be "bootjackers," selling to the general public at places other than established corners, or they may sell

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at fixed "spots." They may sell only casually or part-time, or full-time; and they may be employed regularly and continuously or only temporarily. The units which the Board determined to be appropriate are composed of those who sell full-time at established spots. Those vendors, misnamed boys, are generally mature men, dependent upon the proceeds of their sales for their sustenance, and frequently supporters of families. Working thus as news vendors on a regular basis often for a number of years, they form a stable group with relatively little turnover, in contrast to schoolboys and others who sell as bootjackers, temporary and casual distributors.

Over-all circulation and distribution of the papers are under the general supervision of circulation managers. But, for purposes of street distribution, each paper has divided metropolitan Los Angeles into geographic districts. Each district is under the direct and close supervision of a district manager. His function in the mechanics of distribution is to supply the newsboys in his district with papers which he obtains from the publisher and to turn over to the publisher the receipts which he collects from their sales, either directly or with the assistance of "checkmen" or "main spot" boys.10 The latter, stationed at the important corners or "spots" in the district, are newsboys who, among other things, receive delivery of the papers, redistribute them to other newsboys stationed at less important corners, and collect receipts from their sales.11 For that service, which occupies a minor portion

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of their working day, the [64 S.Ct. 854] checkmen receive a small salary from the publisher.12 The bulk of their day, however, they spend in hawking papers at their "spots" like other full-time newsboys. A large part of the appropriate units selected by the Board for the News and the Herald are checkmen who, in that capacity, clearly are employees of those papers.

The newsboys' compensation consists in the difference between the prices at which they sell the papers and the prices they pay for them. The former are fixed by the publishers, and the latter are fixed either by the publishers or, in the case of the News, by the district manager.13 In practice, the newsboys receive their papers on credit. They pay for those sold either sometime during or after the close of their selling day, returning for credit all unsold papers.14 Lost or otherwise unreturned papers, however, must be paid for as though sold. Not only is the "profit" per paper thus effectively fixed by the publisher, but substantial control of the newsboys' total "take home" can be effected through the ability to designate their sales areas and the power to determine the number of papers allocated to each. While, as a practical matter, this power is not exercised fully, the newsboys' "right" to decide how many papers they will take is also not absolute. In practice, the Board found, they cannot determine the size of their established order without the cooperation of the district manager. And often the number of papers they must take is determined unilaterally by the district managers.

In addition to effectively fixing the compensation, respondents in a variety of ways prescribe, if not the

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minutiae of daily activities, at least the broad terms and conditions of work. This is accomplished largely through the supervisory efforts of the district managers, who serve as the nexus between the publishers and the newsboys.15 The district managers assign "spots" or corners to which the newsboys are...

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