By: Mark Fitzgerald
Besides hauling newspapers, will carriers be carrying the union label? Newspapers, chains, and industry associations take their first step this Friday to overturn a decision by an administrative law judge for the National Labor Relations Board (NLRB) that contradicts nearly two decades of case law by declaring that carriers are newspaper employees — and not independent contractors. Distribution is “an integral part” of the newspaper business, the judge ruled.
“This could lead to the organizing of hundreds of thousands of carriers nationwide,” said Thomas J. McGrath, director of the International Brotherhood of Teamsters’ Newspaper, Magazine, and Electronic Media Workers division.
Independent-contractor status makes newspaper carriers ineligible for union membership, as well as workers’ compensation, unemployment insurance, and disability pay.
In his decision, Administrative Law Judge Albert A. Metz disputed a key contention of newspapers for decades: that they are in the business of gathering news and manufacturing newspapers — not delivering copies of the paper. Metz’s opinion came in a dispute involving Teamsters Local 460, which is trying to organize nearly 400 carriers at the 39,772-circulation St. Joseph (Mo.) News-Press. The newspaper is appealing the decision to the full NLRB.
Headed by Chairman Peter J. Hurtgen, the five-member NLRB has two vacant seats. Like Hurtgen, Wilma B. Liebman and Dennis P. Walsh were appointed to the board by former President Clinton.
Eric Geist, national organizer for The Newspaper Guild, a sector of Communications Workers of America (CWA), said there clearly is union interest among carriers: “Newspaper carriers are among the worst-treated workers in the country. I would say that at CWA and the Guild we get calls from carriers at least once a month asking for help.”
Newspaper industry figures suggest, however, that union hopes are exaggerated. “That’s a
little bit optimistic on [the unions’] part. You have to remember that these are very fact-specific cases,” said Mary Sepucha, who is the director of employee relations for the Newspaper Association of America (NAA) in Vienna, Va. “It’s the kind of decision that is
troublesome because it flies in the face of what the experience has been in these kinds of cases.”
Camille Olson, the Chicago attorney who on Friday will file an amicus brief before the full NLRB on behalf of the NAA and about a dozen other associations and newspapers, compares the newspaper industry to automakers, which manufacture cars but do not own the dealerships where they are sold.
Administrative Law Judge Metz, however, contended in his opinion that delivery is a “critical function” of the newspaper business.
Metz’s decision is the second newspaper case ruling handed down since the NLRB declared in two 1998 cases that, depending on the facts of a particular case, it would assign differing weights to factors in the traditional 10-point test to determine whether a worker is an independent contractor or an employee. In the previous case, another judge determined distributors for Philadelphia Newspapers Inc. were independent contractors.
Olson, of the Chicago firm Seyfarth, Shaw, Fairweather, and Geraldson, said Metz had “thrown out a 19-year string of newspaper cases — that have all held distributors are independent contractors — without even explaining why.”