NLRB Slams Door On Unionizing Carriers

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By: Mark Fitzgerald

With its 2-1 decision that newspaper carriers at the St. Joseph (Mo.) News-Press are independent contractors who do not have the right to unionize, the National Labor Relations Board (NLRB) essentially ruled that carriers at nearly all of America?s daily newspapers cannot unionize either.

According to the Newspaper Association of America (NAA), the carriers at 95% of daily newspapers are independent contractors. The News-Press, in this case, was like Every Paper, with a contract at issue that almost any other newspaper would recognize as virtually identical to its own contracts or arrangements with its carriers.

With its decision, the NLRB did much more than simply reverse a September 2001 ruling by an administrative law judge that the nearly 400 carriers at the News-Press were employees under federal law, and could choose to be organized by Teamsters Union Local 460.

It also did more than dismiss the numerous allegations that the newspaper violated labor law by, for instance, firing carriers because of their union activities.

The ruling also upheld decades of precedent in determining what makes a newspaper carrier an independent contractor, and thus ineligible to unionize. The weight that those precedent cases would carry had been in doubt since 1998, when the NLRB issued a ruling in a trucking industry case that buoyed labor?s hope of organizing newspaper carriers.

The NLRB also dismissed two major arguments the union made on behalf of the carriers. Delivering the paper is ?integral? to the News-Press? business, the union argued. Further, it said the paper?s leverage over the carriers was so great the carriers were ?economically dependent? on the company, and so should be given the right to organize to attain parity.

In effect, the NLRB?s answer was, that may be true, but so what? Congress did not intend to substitute an economic dependence test for the common-law test when determining who is an independent contractor, the majority opinion said.

?It’s a really good decision for the industry,? said attorney L. Michael Zinser, who represented the News-Press in the case.

Industry interest in the ruling was intense, as illustrated by the list of newspapers and associations that filed amicus briefs with the board: Knight Ridder Inc.; Tribune Co.; Advance Publications; E.W. Scripps Co.; McClatchy Co.; Belo; North Jersey Media Group Inc.; Newspaper Association of America; and the California Newspaper Publishers Association.

?We are very happy about the decision,? said NAA President and CEO John F. Sturm. ?We think it?s got fairly far-reachng appplicability to some other cases, and to the industry in general…Within in the industry, I think we did a good job rallying on this case, with a lot of the leading companies and others involved in the amicus brief that we organized.?

Labor, too, keenly anticipated the ruling. The Graphic Communications International Union (GCIU), now a sector inside the International Brotherhood of Teamsters, has been especially active in trying to organize carriers. The AFL-CIO filed an amicus brief in the case.

In 2003 a regional NLRB director ruled that some carriers of The Courier-Journal in Louisville, Ky. are employees who could vote to be represented by the GCIU. Last year, a similar ruling allowed a union vote at The Arizona Republic in Phoenix.

Until Wednesday?s ruling, it was unclear how the NLRB would rule in newspaper cases. In 1998, it issued two opinions in cases that both held similarities to the way newspaper carriers conduct their work.

In one, known as Roadway, the board ruled a company?s long-haul truckers are employees eligible to choose union representation. The Teamsters asserted that the News-Press carriers were like those truckers, who cannot negotiate changes to their routes, carry other products during delivery times, or meaningfully increase or risk their profits.

In the other key case, known as Dial-A-Mattress, the NLRB ruled that the mattress deliverers were independent contractors. The News-Press argued that the carriers are independent contractors because they do not fill out job applications or take mandatory employee drug tests, they get no paid leave, and they are not supervised by newspaper managers. Further, the newspaper noted that the carriers drive their own vehicles that do not include the newspaper?s logo, can refuse orders without being subject to discipline, and sign contracts acknowledging they are independent contractors.

The NLRB sided with the News-Press in virtually every argument. It said that the carriers could be ?entrepreneurs? by signing up more subscribers in its route. The board noted that News-Press carriers were free to deliver competing publications.

Board member Wilma B. Liebman dissented from the two-person majority of Chairman Robert J. Battista and Peter C. Schaumber. She said the board should ?keep federal labor law current? with the trend towards ?flexible, non-traditional employment relationships.? Other nations, she noted, have created labor laws for ?employee-like persons? and ?dependent contractors.?

Liebman blasted the majority for ignoring the issue of economic disparity between the low-paid carriers and the newspaper. ?Taking economic factors into account in this case should lead to a finding of employee status,? she wrote. ?The respondent newspaper?s substantial economic advantage over the carriers results in a relationship of economic dependence on the newspaper. It is persuasive evidence that the carriers are employees, not independent contractors.?

The majority blasted right back: ?In fact, the course charted by the dissent is contrary to the statute, precedent and common law,? they wrote. ?Carried to its logical conclusion, our dissenting colleague would have any person who is economically dependent deemed a statutory employee. Clearly, Congress did not intend such a result when it amended the (National Labor Relations) Act to expressly exclude independent contractors from the act?s jurisdiction.?

Zinser, of the Nashville, Tenn.-based The Zinser Law Firm, said the ruling?s most immediate effect will be at the Courier-Journal and Arizona Republic. ?My read is that after [the regional NLRB directors] read this opinion, they are going to be hard pressed not to reverse? rulings that the carriers at the papers are employees, Zinser said.

Long-term, virtually all newspapers that have an independent contractor relationship with their carriers will be able to resist unionization because of the decision, Zinser suggests.

?I represent over 250 newspapers, and I?ll tell you that all of them have similarities and they?re all a little different, but I would say the contract the News-Press has is substantially similar to most in the industry in most respects,? he said.

A spokesperson for the Teamsters at its Washington, D.C., office said he could not comment on the ruling until he had conferred with leaders of the union’s newspaper sector.

Zinser said he believed that ?activism? by NLRB board members and administrative law judges appointed during the Bill Clinton administration accounted for the pursuit of the News-Press. ?I think they decided they would see if they could make fly a looser standard (for determining independent contractor status) to help unions to organize carriers,? he said. ?Lord knows what would have happened if there hadn?t been a change of administration.??

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