NLRB v. AS Abell Company

• Decision Date: 16 January 1964
• Docket Number: No. 8973.,8973.
• Citation: 327 F.2d 1
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A. S. ABELL COMPANY and Hearst Consolidated Publications, Inc., Respondents.
• Court: U.S. Court of Appeals — Fourth Circuit

327 F.2d 1 (1964)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. A. S. ABELL COMPANY and Hearst Consolidated Publications, Inc., Respondents.

No. 8973.

United States Court of Appeals Fourth Circuit.

Argued September 27, 1963.

Decided January 16, 1964.

Joseph C. Thackery, Attorney, N. L. R. B. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Melvin Pollack, Attorney, N. L. R. B., on brief), for petitioner.

William D. Macmillan, Sr., Baltimore, Md. (William A. Fisher, Jr., and James P. Garland, Baltimore, Md., on brief), for respondent, A. S. Abell Co.

James J. Doyle, Jr., Baltimore, Md. (Sherbow, Shea & Doyle and Theodore Sherbow, Baltimore, Md., on brief), for respondent, Hearst Consolidated Publications, Inc.

Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and NORTHROP, District Judge.

BOREMAN, Circuit Judge.

The National Labor Relations Board here petitions¹ for the enforcement of its order entered May 24, 1962, against A. S. Abell Company and Hearst Consolidated Publications, Inc., which directed that they cease and desist from certain practices found by the Board to be violative of Section 8(a) (1) of the National Labor Relations Act² and that the usual notices be posted. Respondents, Hearst and Abell, are newspaper publishers engaged in the production and distribution of newspapers in and around the City of Baltimore. Hearst publishes an evening and a Sunday newspaper called, respectively, the News-Post and the Sunday American, while Abell publishes the Sun, the Evening Sun and the Sunday Sun. Both publishers utilize a system of distribution which contemplates several types of retail outlets including newsboys, corner vendors, stores and rural or motor carriers. In their operations both publishers recognize and deal with a number of labor organizations. The present controversy arises out of the publishers' resistance to the efforts of Local 355, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, to organize the rural and motor carriers.³ Beginning in March of 1961, four organizational meetings attended by carriers and representatives of Local 355 were held. Hearst and Abell, taking the position that the carriers were independent contractors rather than employees, interrogated several of the carriers with respect to their union activities, informed some of them that the publishers would not recognize or bargain with a union of carriers and that, if necessary, they were prepared to replace the motor carriers with boys. Upon an unfair labor practice charge filed by one of the carriers, the Board's General Counsel issued a consolidated complaint alleging that both publishers had engaged in unfair labor practices in violation of Section 8(a) (1) of the National Labor Relations Act. After a hearing, the Trial Examiner found that the carriers were employees of the publishers and that Hearst and Abell had violated that section of the Act by (1) interrogating the newspaper carriers concerning their union activities; (2) threatening the carriers with loss of their jobs if they joined the union or selected it as their bargaining representative; and (3) threatening refusal to bargain with Local 355 if it were selected as bargaining representative of the carriers. A three-member panel of the Board, one member dissenting, adopted the findings, conclusions and recommendations of the Trial Examiner.⁴

Hearst and Abell do not assert here that there is insufficient evidence to sustain the Board's finding of unfair labor practices if the carriers were properly determined to be employees. The sole issue before this court is whether there is substantial evidence on the whole record to support the Board's conclusion that the carriers here involved are employees rather than independent contractors. After a careful examination of the record, including the stipulations of the parties and the findings of the Examiner adopted by the Board, we conclude that the request for enforcement of the Board's order should be refused.

The Trial Examiner, after reviewing factors indicative of both independent contractor and employee status, expressed his conclusion as follows:

"Having given careful consideration to each of the above factors and to the total picture which they develop, I am persuaded, and I find, that the publishers retain the right to direct and control, in substantial measure, the details and means by which the delivery of their newspapers by carriers is effected. The carrier performs the service of final delivery in a geographical area which is determined by the publisher and is not his to sell or transfer, under standards and conditions finally fixed, in each case, by the publisher. Although the method of compensating the carrier is indicative of an independent contractor relationship, the system of cost-and-price determination effectively limits the carrier\'s control over his earning power. Finally, the almost-at-will terminability of the relationship bears directly upon the right of control which is the essential issue here. On balance, I find that the entrepreneurial aspects of the carrier\'s work are outweighed by the `outer control\' aspects and that the presumption created by the formal agreement had been rebutted."

It is conceded that the Trial Examiner properly construed the applicable law in determining that analysis of the degree of control exercised by the publishers over the manner and means of performance by the carriers furnishes the basic means of discerning whether the carriers are independent contractors or employees. In 1947 Congress amended Section 2(3) of the National Labor Relations Act⁵ to make it clear that independent contractors were not within its coverage. Prior to the amendment some confusion had existed in the courts and before the Board as to the proper meaning of the term "employee" as used in the Act. In National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944), the Supreme Court held that common-law distinctions between employees and independent contractors were not controlling under the Act, and that the word employee as used therein should be interpreted broadly to effect the purposes of the Act. It was primarily this decision which led to the 1947 amendment specifically excluding independent contractors from the Act's protection. Although the amendment did not define the terms "employee" and "independent contractor", its legislative history makes it quite clear that Congress intended the word employee to denote a person who works for another for wages or salary under direct supervision, as distinguished from one who undertakes "to do a job for a price, decides how the work will be done, usually hires others to do the work" and depends for his income not upon wages but upon profit.⁶

Common law tests are to be used to distinguish between the two. N. L. R. B. v. Lindsay Newspapers, Inc., 315 F.2d 709 (5th Cir. 1963); National Labor Relations Board v. Nu-Car Carriers, 189 F.2d 756 (3d Cir. 1951), cert. denied, 342 U.S. 919, 72 S.Ct. 367, 96 L.Ed. 687 (1952). As stated in National Labor Relations Board v. Steinberg, 182 F.2d 850, 857 (5th Cir. 1950):

"* * * The usual test employed for determining the distinction between an independent contractor and an employee is found in the nature and the amount of control reserved by the person for whom the work is done, and the employer-employee relationship exists only where the employer has the right to control and direct the work, not only as to the result to be accomplished by the work, but also as to the manner and means by which that result is accomplished. It is the right and not the exercise of control which is the determining element."

Thus, the critical distinction between an independent contractor and an employee is found in the nature and amount of control reserved by the person for whom the work is done. The test, however, admits much more readily of statement than of application. Resolution of the question must depend largely upon the peculiar facts of each case. Moreover, no single factor is controlling and the totality of the circumstances must be considered.

Before proceeding to a consideration of the circumstances present here in the relationship between Hearst and Abell and their carriers, the proper scope of this court's review of a Labor Board decision should be emphasized. Under Section 10 of the Administrative Procedure Act⁷ and Section 10(e) of the amended National Labor Relations Act,⁸ this court's function when reviewing a decision of the National Labor Relations Board is limited to determining whether there is substantial evidence on the record considered as a whole to support the Board's determination. Thus, this court may not substitute its judgment for that of the Board in a case where the evidence admits of two fairly conflicting conclusions even if it would have decided the issue differently had the matter been before it de novo. Site Oil Company of Missouri v. N. L. R. B., 319 F.2d 86 (8th Cir. 1963). This is not to say, however, that our inquiry should go no further than to ascertain whether there is evidence in the record which, in and of itself, tends to support the Board's conclusion. Rather we are obliged to scrutinize the whole record, taking into account whatever fairly detracts from the evidence relied upon by the Board. Performance of this duty was forcefully enjoined upon the Courts of Appeals by the United States Supreme Court in Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). There, the Court, speaking of the changes wrought upon the scope of judicial review of Labor Board decisions by the enactment of the Administrative Procedure Act and the amendment of Section 10(e) of the National Labor Relations Act, stated:

"Whether or not it was ever permissible for courts to determine the

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