National Labor Relations Board v. Hearst Publications Same v. Stockholders Pub Co Same v. Co 8212 339

Decision Date24 April 1944
Docket NumberTIMES-MIRROR,Nos. 336,s. 336
CourtU.S. Supreme Court

See 322 U.S. 769, 64 S.Ct. 1148.

[Argument of Counsel from pages 111-113 intentionally omitted] Mr. Alvin J. Rockwell, of Washington, D.C., for petitioner.

Mr. John M. Hall, of Los Angeles, Cal., for respondent Hearst Publications, Inc., in No. 336.

Mr. Lewis B. Binford, of Los Angeles, Cal., for respondent Stockholders, Pub. Co.

Mr. Edward L. Compton, of Los Angeles Cal., for respondent Hearst Publications, Inc., in No. 338.

Mr. T. B. Cosgrove, of Los Angeles, Cal., for respondent Times-Mirror Co.

Mr. Arthur W. A. Cowan, of Philadelphia, Pa., filed brief on behalf of International Printing Pressmen & Assistants' Union of North America, A.F. of L., as amicus curiae.

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, 29 U.S.C.A. § 152,1 presents the important question which we granted certiorari2 to resolve.

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 proceeding4 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, 29 U.S.C.A. § 160, were instituted, a hearing6 was held and respondents were found to have violated Section 8(1) and (5) of the Act, 49 Stat. 452, 453, 29 U.S.C. § 158(1), (5), 29 U.S.C.A. § 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. Re- jecting 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 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 of their working day, the 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 newsbodys' 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 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 expected to confine their selling activities. 16 Transfers from one 'spot' to another may be ordered by the district manager for reasons of discipline or efficiency or other cause. Transportation to the spots from the newspaper building is offered by each of respondents. Hours of work on the spots are determined not simply by the impersonal pressures of the market, but to a real extent by explicit instructions from the district managers. Adherence to the prescribed hours is observed closely by the district managers or other supervisory agents of the publishers. Sanctions, varying in severity from reprimand to dismissal, are visited on the tardy and the delinquent. By similar supervisory controls minimum standards of diligence and good conduct while at work are sought to be enforced. However wide may be the latitude for individual initiative beyond those standards, district managers' instructions in what the publishers apparently regard as helpful sales technique are expected to be followed. Such varied items as the manner of displaying the paper, of emphasizing current features and headlines, and of placing advertising placards, or the advantages of soliciting customers at specific stores or in the traffic lanes are among the subjects of this instruction. Moreover, newsboys are furnished with sales equipment, such as racks, boxes and change aprons, and advertising placards by the publishers. In this pattern of employment the Board found that the newsboys are an integral part of the publishers' distribution system and circulation organization. And the record discloses that the newsboys and checkmen feel they are employees of the papers and respondents' supervisory employees, if not respondents themselves, regard them as such.

In addition to questioning the sufficiency of the evidence to sustain these findings, respondents point to a number of other attributes characterizing their relationship with the newboys17 and urge that on the entire record the latter cannot be considered their employees. They base this conclusion on the argument that by common-law standards the extent of their control and direction of the...

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