St. Charles Journal, Inc. v. N.L.R.B., 81-2089
| Decision Date | 04 June 1982 |
| Docket Number | No. 81-2089,81-2089 |
| Citation | 679 F.2d 759 |
| Parties | 110 L.R.R.M. (BNA) 2640, 94 Lab.Cas. P 13,570 ST. CHARLES JOURNAL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Timothy L. Stalnaker, St. Louis, Mo., for petitioner, St. Charles Journal, Inc.; Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., of counsel.
William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Elaine Patrick, Atty., N. L. R. B., Washington, D. C., for respondent.
Before BRIGHT, HENLEY and JOHN R. GIBSON, Circuit Judges.
St. Charles Journal, Inc. (the Company) petitions for review of an order of the National Labor Relations Board (NLRB) requiring it to bargain collectively with Miscellaneous Drivers, Helpers, and Public Employees Local 610, the Union certified as the exclusive representative of fourteen newspaper carriers. The NLRB has filed a cross-application for enforcement of its bargaining order. We deny the petition for review and grant the application for enforcement of the Board's order.
The Company publishes and distributes the St. Charles Journal (the Journal), a newspaper consisting of seventy-five per cent advertisements and twenty-five per cent news items of interest to residents of St. Charles County, Missouri. The three editions published each week are distributed free of charge to each residence and retail establishment in the County. Each of these editions regularly contains up to twelve advertising supplements. The newspaper carriers, whose status is at issue in this case, pick up the Journal and any supplements directly from an independent printer and make door-to-door deliveries to County residences and businesses.
In March, 1981 Local 610 filed a petition seeking to represent Journal carriers. The Company opposed the petition, contending that the carriers were not employees, but rather independent contractors excluded from coverage under the National Labor Relations Act (NLRA). 1 After a full hearing on the carriers' status, the Acting Regional Director determined that they were Company employees.
Following its victory in the ensuing representation election, Local 610 submitted a bargaining request to the Company. When the Company refused to bargain, the Union filed the unfair labor practice charge that is the subject of this appeal. In answering the charge the Company reiterated its contention that the carriers were independent contractors. After finding that the issue raised by the Company in the unfair labor practice proceeding was or could have been litigated in the representation proceeding and that the Company had not offered any new evidence or shown special circumstances requiring the Board to reexamine its ruling in the representation proceeding, the NLRB granted summary judgment in favor of the General Counsel and entered the bargaining order that is now before this court on the Company's petition for review and the Board's cross-application for enforcement.
It is well settled that "the distinction between employees and independent contractors must be made by the application of general agency principles on a case-by-case basis." NLRB v. Warner, 587 F.2d 896, 899 (8th Cir. 1978), citing NLRB v. United Insurance Co., 390 U.S. 254, 256, 88 S.Ct. 988, 989, 19 L.Ed.2d 1083 (1968). This determination requires an examination of the degree to which the principal has the right to control the details of the agent's performance. See NLRB v. A. Duie Pyle, Inc., 606 F.2d 379, 382 (3d Cir. 1979); NLRB v. Warner, 587 F.2d at 899. All incidents of the work relationship must be assessed and weighed. NLRB v. Warner, 587 F.2d at 899. Among the factors that must be considered are
the right to hire and discharge persons doing the work, the method and determination of the amount of the payment to the workmen, whether the person doing the work is engaged in an independent business or enterprise, whether he stands to make a profit on the work of those under him, the question of which party furnishes the tools or materials with which the work is done, and who has control of the premises where the work is done. In addition ... consideration must be given to other factors, such as whether the relationship is of a permanent character, the skill required in the particular occupation, and who designates (...) where the work is to be performed.
Id., quoting Minnesota Milk Co. v. NLRB, 314 F.2d 761, 765 (8th Cir. 1963).
Since the question of a worker's status requires reference to common law agency principles, its resolution does not call into play the special expertise developed by the Board in interpreting the provisions of the NLRA. See NLRB v. Warner, 587 F.2d at 901, citing NLRB v. United Insurance Co., 390 U.S. at 260, 88 S.Ct. at 991; NLRB v. Deaton, Inc., 502 F.2d 1221, 1223 (5th Cir. 1974), cert. denied, 422 U.S. 1047, 95 S.Ct. 2665, 45 L.Ed.2d 700 (1975). When, however, the Board makes its...
To continue reading
Request your trial
-
N.L.R.B. v. Campbell-Harris Elec., Inc., CAMPBELL-HARRIS
...record as a whole, even if we might have reached a different conclusion on a de novo review of the evidence. St. Charles Journal, Inc. v. NLRB, 679 F.2d 759, 761 (8th Cir.1982). The Supreme Court discussed the alter ego doctrine in terms of an employer's attempt to avoid a reinstatement ord......