NLRB v. Brush-Moore Newspapers, Inc.

• Decision Date: 01 July 1969
• Docket Number: No. 18341.,18341.
• Citation: 413 F.2d 809
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, Truck Drivers Union Local 413, etc., Intervenor, v. BRUSH-MOORE NEWSPAPERS, INC., d/b/a The Portsmouth Times, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

413 F.2d 809 (1969)

NATIONAL LABOR RELATIONS BOARD, Petitioner Truck Drivers Union Local 413, etc., Intervenor, v. BRUSH-MOORE NEWSPAPERS, INC., d/b/a The Portsmouth Times, Respondent.

No. 18341.

United States Court of Appeals Sixth Circuit.

July 1, 1969.

Nan Bases, N. L. R. B., Washington, D. C., for petitioner, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Lawrence M. Joseph, Atty., N. L. R. B., Washington, D. C., on brief.

William J. Rosenthal, Baltimore, Md., for respondent, Shawe & Rosenthal, Earle K. Shawe, Lawrence S. Wescott, Baltimore, Md., Vodrey & Shay, Jackman S. Vodrey, Liverpool, Ohio, on brief.

Before CELEBREZZE, McCREE and COMBS, Circuit Judges.

McCREE, Circuit Judge.

This is a petition for enforcement of an order of the National Labor Relations Board. The Board found that Brush-Moore Newspapers, Inc., respondent, violated Sections 8(a)(1) and 8(a)(5) of the Act by refusing to bargain with Truck Drivers Local 413, hereinafter referred to as "the Union".¹ The questions presented are whether enforcement should be denied because the Board failed to grant respondent a hearing at the unfair labor practice proceeding, and, if not, whether substantial evidence on the record as a whole supports the Board's determination that certain persons working for respondent are employees and not independent contractors for purposes of collective bargaining.

Respondent is an Ohio corporation engaged in the publication and distribution of The Portsmouth Times, a daily newspaper. On December 2, 1965, the Union filed a petition seeking to represent some of the workers who distribute respondent's papers. A hearing was held to determine whether these workers are employees or independent contractors and both sides were given the opportunity to introduce evidence and to examine and cross examine the witnesses under oath. On February 23, 1966, the regional director found, on the basis of the record of this hearing, that certain of respondent's distributors are employees and he defined an appropriate bargaining unit² and directed that an election be conducted. On March 18, the Board denied respondent's request for review of this decision on the ground that it raised no substantial issues. Thereafter, an election was held and a majority of the members of the unit designated the Union as their bargaining representative. Subsequently, the Union was certified by the Board.

On May 2, 1966, the Union asked respondent to bargain. When this request was refused, the regional director issued a complaint and scheduled a hearing before a trial examiner. Following respondent's denial of the material portions of the complaint, the general counsel, contending that respondent's answer was a sham, moved the Board for summary judgment. The Board then transferred the case from the Trial Examiner to itself and ordered respondent to show cause why the motion should not be granted. After receiving respondent's statement in opposition to the motion, the Board granted summary judgment against respondent on December 8, 1966 and ordered it to bargain with the Union. This petition for enforcement of the order followed.

Initially, respondent contends that its statutory right to a hearing on the unfair labor practice charge is unconditional. We do not agree. It is clear that 29 U.S.C. § 160(b) should not be read to require an evidentiary hearing if there are no issues of fact to be resolved. Macomb Pottery Co. v. NLRB, 376 F.2d 450 (7th Cir. 1967); NLRB v. Union Brothers, Inc., 403 F.2d 883 (4th Cir. 1968). Furthermore, it is also clear that the Board is not required to grant a hearing to reconsider factual issues resolved at an earlier, related representation hearing unless newly discovered or previously unavailable evidence is presented. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941), reh. denied, 313 U.S. 599, 61 S.Ct. 1093, 85 L.Ed. 1551 (1941); NLRB v. Union Brothers, Inc., supra; NLRB v. Tennessee Packers, Inc., Frosty Morn Division, 379 F.2d 172 (6th Cir. 1967), cert. denied, 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967); NLRB v. KVP Sutherland Paper Co., Sutherland Division, 356 F.2d 671 (6th Cir. 1966). Cf. Amalgamated Clothing Workers of America v. NLRB, 124 U.S. App.D.C. 365, 365 F.2d 898 (1966).

The only factual issue raised by respondent before the Board, or in its brief to this court, is whether the workers in question are employees or independent contractors within the meaning of the Act. Although respondent now asserts that it is prepared to offer evidence not available at the time of the representation proceeding before the hearing officer, it made no such claim in its statement opposing the motion for summary judgment. Furthermore, the only evidence offered then which appears to have been unavailable concerns several subsequent changes in its distribution routes. The Board found, however, that respondent had made no showing that the asserted changes would require any modification of the original determination that the persons within the defined bargaining unit are employees and not independent contractors. A review of the record convinces us that this finding is supported by the evidence and, consequently, no factual issue existed at the time the Board granted summary judgment against respondent. Under these circumstances, we hold that the Board's action was proper.

Respondent's contention that enforcement should be denied because the motion for summary judgment was made to the Board before the proceeding was transferred from the Trial Examiner is without merit. It is clear that the Board had the authority to transfer the case to itself to avoid unnecessary delay. 9 C.F.R. § 102.50. Respondent has not been prejudiced by the fact that the motion was addressed to the wrong forum and no purpose would be served by denying enforcement on this technical ground.

The second question requires consideration of the evidence supporting the Board's finding that the distributors are employees and not independent contractors. Common law agency principles are controlling, NLRB v. United Insurance Co., 390 U.S. 254, 256, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968), and some of the relevant factors are set forth in RESTATEMENT (SECOND) OF AGENCY § 220 (1957):

§ 220. Definition of Servant

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other\'s control or right to control.

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

Furthermore, as stated by the court in NLRB v. A. S. Abell Co., 327 F.2d 1 (4th Cir. 1964):

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. 327 F.2d at 4-5.

Applying these principles, we determine that the Board's finding is supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Among the characteristics of the relationship of the distributors to respondent which support this conclusion are: the contracts provided that the distributor shall service and maintain route tubes supplied by respondent and it can fairly be inferred that respondent can insist on delivery to these tubes; the contracts prohibit the distributors from selling any other newspaper or advertising matter without respondent's permission; although some customers make advance payments to respondent for their subscriptions, the distributors are not allowed the use of this money in advance but instead are credited each week with an amount equal to the customer's weekly subscription rate; the job does not require the services of one who is highly skilled; in addition to the route tubes, respondent provides a room and brown paper for wrapping the newspapers;³ the employment is intended to be of indefinite duration, not short-term, and is a necessary part of respondent's regular business; and respondent may terminate a distributor's employment without notice if he fails to comply with the terms of his contract.

The relationship between the distributors and respondent is described in detail in the regional director's decision.⁴ Although there are perhaps as many indicia characteristic of independent contractor status as there are of employee, we should not upset the Board's choice between two fairly conflicting views. As the Supreme Court stated in NLRB v. United Insurance Co., supra:

The Board\'s determination was a judgment made after a hearing with witnesses and oral argument had been held and on the basis of written briefs. Such a determination should not be set aside just because a court would, as an original matter, decide the case the other way. As we said in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95

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