462 F.2d 699 (9th Cir. 1972), 71-2767, Brown v. N.L.R.B.

Docket Nº71-2767.
Citation462 F.2d 699
Party NameDouglas BROWN et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and San Francisco Newspaper Printing Company, Inc., Intervenor, and Newspaper and Periodical Drivers' & Helpers' Union Local 921, Intervenor.
Case DateJune 12, 1972
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 699

462 F.2d 699 (9th Cir. 1972)

Douglas BROWN et al., Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent, and

San Francisco Newspaper Printing Company, Inc., Intervenor, and

Newspaper and Periodical Drivers' & Helpers' Union Local 921, Intervenor.

No. 71-2767.

United States Court of Appeals, Ninth Circuit.

June 12, 1972

Timothy H. Fine (argued), G. Joseph Bertain, Jr., San Francisco, Cal., for petitioners.

Joseph C. Thackery (argued), William F. Wachter, Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, Ogden W. Fields, Executive

Page 700

Secretary, N. L. R. B., Washington, D. C., Roy O. Hoffman, Reg. Dir., Jerrold C. Schaefer, San Francisco, Cal., for respondent.

R. Barry Churton (argued), of Cooper, White & Cooper, San Francisco, Cal., Garret McEnerney, II, San Francisco, Cal., for intervenors.

Before DUNIWAY, HUFSTEDLER and CHOY, Circuit Judges.

CHOY, Circuit Judge:

I. Proceedings Below

In September, 1965, the Hearst Corporation, which publishes the San Francisco Examiner, and the Chronicle Publishing Company, which publishes the San Francisco Chronicle, formed the San Francisco Newspaper Printing Company, Inc. (the Company) to operate certain business aspects of the two dailies and the Sunday Examiner and Chronicle. Until 1965, the Newspaper & Periodical Drivers and Helpers' Union, Local 921, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (the Union), dealt with each newspaper individually. In 1967, the Union entered into a collective bargaining agreement with the Company, which was amended by a 1968 Supplemental Agreement.

Sections 1(a) and (b) of the Supplemental Agreement extended the Union's jurisdiction to the Company's employees in the San Francisco suburbs, and provided for the termination of contracts with individual newspaper dealers in certain areas according to a prescribed schedule. The Union's prior attempts to unionize these suburban newspaper dealers had met with little success, and the Supplemental Agreement provided, in effect, for cancellation or unionization at each dealer's option.

Thirty-seven dealers in Marin and Santa Clara counties were affected by the Supplemental Agreement. None of the dealers was covered by the union contract or the Supplemental Agreement. Five dealers (the Dealers) then filed unfair labor practice charges against the Company and the Union with the National Labor Relations Board, alleging that their prospective terminations pursuant to the Supplemental Agreement violated § 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e). 1 Identical charges were filed by four more dealers during June and August, 1970. The Board's Regional Counsel authorized the issuance of a complaint against the Company and the Union, and the district court entered a temporary injunction pursuant to 10( l).

The trial examiner held that the Dealers were "employees" rather than "independent contractors," and were thus precluded from challenging the Supplemental Agreement. The Board, one member dissenting, accepted the recommendation that the complaint be dismissed. 194 N.L.R.B. No. 4 (1971). The Dealers immediately filed for judicial review under § 10(f). The district court dissolved its injunction, and the Company terminated three more dealers. We expedited review, stayed the Board's order, and continued the restraining order until further notice. We reverse and remand for a hearing on the merits.

II. Major Characteristics of the Dealership Relationship

1. The contract. The Company provides a uniform printed contract which each dealer must sign. The Company agrees to sell papers to the dealer at the wholesale rate, to assist him upon request, and to provide customer lists to the extent they are available and not already

Page 701

furnished. It also covenants "[t]hat, notwithstanding anything to the contrary in this Agreement, it will not exercise any direction or control or right thereof over the manner, methods or means Dealer shall employ to perform this Agreement."

The dealer agrees to purchase enough papers adequately to service his customers, to post a bond, and to furnish the Company, on demand, with whatever records he keeps. He may not assign his rights under the contract. The dealer "shall not be entitled to receive any compensation, allowances or other payment from Printing Company." The Company disavows all liability for any losses, expenses, damages, or injuries incurred in the dealer's business or caused by the dealer's agents or employees. Finally, the contract recites that "Dealer is engaged in an independent business and is an independent operator, contractor, merchant and/or distributor and not an employee of Printing Company."

2. Price and territory control. The Company sets the wholesale price at which it sells papers to the dealer, who sets his own retail price. The Company suggests a retail price, to which many but not all dealers adhere. While the dealer covenants not to sell papers outside his designated territory, the Company allows dealers to exchange customers or areas along the edges of their territories.

3. Delivery. The Company delivers papers to dropoff points designated by the dealer and instructs that daily papers must be delivered to customers by 6:30 a. m., the Sunday paper by 7:30 a. m. Individual dealers insist that the papers be delivered well before this deadline. Other than the delivery deadline and a requirement that papers be protected from the weather, the Company leaves the details of delivery to the dealer, who hires carriers and determines their number, method of pay, hours and duties.

The dealer has complete authority to and does refuse to deliver to customers, especially because of defaulted payments, inaccessible homes, or impassable roads.

4. Credits and subsidies. The Company ordinarily refuses to accept returned newspapers for credit. If a dealer's draw of papers exceeds his sales, he bears the loss. However, the Company does accept returns when it unilaterally increases or "stuffs" a dealer's draw. On Sundays, the Company provides a credit for returned papers in excess of eight percent of the dealer's draw when it unilaterally stuffs the draw.

During the fifty-three day strike in 1968, the Company allowed dealers to borrow up to $400, with interest at 6% per year on the unpaid balance. After the strike the Company granted subsidies provided dealers...

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23 practice notes
  • 753 F.2d 744 (9th Cir. 1985), 83-3769, Chase v. Trustees of Western Conference of Teamsters Pension Trust Fund
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • January 31, 1985
    ...employer has a right to exercise over the individual, particularly regarding the details of the work"). [7] See Brown v. NLRB, 462 F.2d 699 (9th Cir.), cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972) (newspaper dealers who control their own distribution and who bear al......
  • 606 F.2d 379 (3rd Cir. 1979), 78-2223, N.L.R.B. v. A. Duie Pyle, Inc.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (3rd Circuit)
    • September 14, 1979
    ...474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951), or is a misapplication of the statutory exemption for independent contractors, Brown v. NLRB, 462 F.2d 699, 702 (9th Cir.), Cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972). For this reason the order now before us cannot stand. Th......
  • 517 F.2d 445 (2nd Cir. 1975), 289, Lorenz Schneider Co., Inc. v. N.L.R.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • April 30, 1975
    ...Meyer Dairy, Inc. v. NLRB, 429 F.2d 697 (10 Cir. 1970); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9 Cir. 1970); and Brown v. NLRB, 462 F.2d 699 (9 Cir.), cert. denied sub nom. San Francisco Newspaper Printing Co., Inc. v. NLRB, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972), are favor......
  • 580 F.2d 966 (9th Cir. 1978), 77-2337, Merchants Home Delivery Service, Inc. v. N.L.R.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • August 21, 1978
    ...individual's business; risk of loss and opportunity for profit; and the individual's proprietary interest in his business. Brown v. NLRB, 462 F.2d 699 (9th Cir.), Cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972). It is the rare case where the various factors will point with ......
  • Request a trial to view additional results
23 cases
  • 753 F.2d 744 (9th Cir. 1985), 83-3769, Chase v. Trustees of Western Conference of Teamsters Pension Trust Fund
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • January 31, 1985
    ...employer has a right to exercise over the individual, particularly regarding the details of the work"). [7] See Brown v. NLRB, 462 F.2d 699 (9th Cir.), cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972) (newspaper dealers who control their own distribution and who bear al......
  • 606 F.2d 379 (3rd Cir. 1979), 78-2223, N.L.R.B. v. A. Duie Pyle, Inc.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (3rd Circuit)
    • September 14, 1979
    ...474, 490, 71 S.Ct. 456, 95 L.Ed. 456 (1951), or is a misapplication of the statutory exemption for independent contractors, Brown v. NLRB, 462 F.2d 699, 702 (9th Cir.), Cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972). For this reason the order now before us cannot stand. Th......
  • 517 F.2d 445 (2nd Cir. 1975), 289, Lorenz Schneider Co., Inc. v. N.L.R.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (2nd Circuit)
    • April 30, 1975
    ...Meyer Dairy, Inc. v. NLRB, 429 F.2d 697 (10 Cir. 1970); Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9 Cir. 1970); and Brown v. NLRB, 462 F.2d 699 (9 Cir.), cert. denied sub nom. San Francisco Newspaper Printing Co., Inc. v. NLRB, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972), are favor......
  • 580 F.2d 966 (9th Cir. 1978), 77-2337, Merchants Home Delivery Service, Inc. v. N.L.R.B.
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • August 21, 1978
    ...individual's business; risk of loss and opportunity for profit; and the individual's proprietary interest in his business. Brown v. NLRB, 462 F.2d 699 (9th Cir.), Cert. denied, 409 U.S. 1008, 93 S.Ct. 441, 34 L.Ed.2d 301 (1972). It is the rare case where the various factors will point with ......
  • Request a trial to view additional results

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