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NLRB Law Memo 05/25/2007
by Ross Runkel at LawMemo
NLRB Law Memo 05/25/2007
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NLRB - Staff summarized 2 decisions.
The Arizona Republic, a Div. of Phoenix Newspapers, Inc. (28-RC-6304; 349 NLRB No. 95) Phoenix, AZ May 8, 2007.
Chairman Battista and Member Schaumber found, contrary to the Regional Director, that under the standards of St. Joseph News-Press, 345 NLRB No. 31 (2005) (News-Press), the Employer's newspaper carriers are independent contractors excluded from the protection of the Act, and not statutory employees within the meaning of Section 2(3). The majority reversed the Regional Director and dismissed the petition filed by Graphic Communications Local 58-M seeking an election in a carrier unit. Member Liebman dissented.
The Board remanded this case to the Regional Director in 2004 for further consideration in light of its finding in News-Press, applying the common-law agency test, that the News-Press newspaper carriers were independent contractors. The Board noted in News-Press that its finding was consistent with cases decided before Roadway Package System, 326 NLRB 842 (1998), and Dial-A-Mattress Operating System, 326 NLRB 842 (1998), in which it found newspaper carriers to be independent contractors. See, e.g., The Evening News, 308 NLRB 563 (1992); Thomson Newspapers, 273 NLRB 350 (1984).
In his supplemental decision, the Regional Director found that the facts in News-Press were "significantly different" from those in this case and that all of the News-Press factors weighed in favor of finding employee status. He reaffirmed his original conclusion that the Employer's newspaper carriers are statutory employees and that the petitioned-for unit was appropriate.
The majority, in this decision on review, found the facts in this case are remarkably similar to those in News-Press and accordingly, relied on the Board's analysis of the common-law factors as applied to the newspaper carriers in News-Press. Chairman Battista and Member Schaumber wrote: "We find that a comparison of the common-law factors in this case with those factors in News-Press demonstrates, on balance, that the Employer's newspaper carriers are independent contractors. Moreover, our finding here is consistent with the pre-Roadway cases finding newspaper carriers to be independent contractors."
Dissenting Member Liebman wrote:
Contrary to the majority's view, economic dependence is a relevant factor in determining employee status under the common-law test incorporated by the National Labor Relations Act. By refusing to consider this factor, the majority wrongly ignores economic realities and present legal trends, as fully discussed in my dissent in St. Joseph News-Press, 345 NLRB No. 31 (2005). Here, based on their economic dependence on the newspaper, together with other relevant factors, I would find that the carriers were statutory employees, and not independent contractors. But even under the majority's view of the common-law test, I would reach the same conclusion, in agreement with the Regional Director.
(Chairman Battista and Members Liebman and Schaumber participated.)
***
G.E. Maier Co. (9-CA-42602; 349 NLRB No. 98) Cincinnati, OH May 9, 2007.
The administrative law judge found, and the Board agreed, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to provide Carpenters Ohio and Vicinity Regional Council the information it requested in its Jan. 5, 2006 letter, regarding the Respondent's relationship with two other companies.
In defense, the Respondent argued that it never had a duty to bargain with the Union because James Fangmeyer acted without authority when, at a jobsite in Wellston, OH in May 2002, he signed the Union's "Acceptance of Agreements," which provided that the Respondent agreed to recognize the Union and to abide by the Union's collective-bargaining agreement with area contractor associations. The Board, in agreeing with the judge that Fangmeyer had apparent authority to bind the Respondent, explained:
Here, the Respondent had provided Fangmeyer with business cards identifying him as its 'Vice-President Installations," and Fangmeyer had given one of those cards to union organizer Mark Johnson at the Wellston jobsite. Moreover, the Respondent had authorized Fangmeyer to hire workers and to take any other necessary steps to complete the work at a jobsite, and Fangmeyer had exercised that authority in hiring an apprentice through the Union at the Wellston jobsite. In these circumstances, we find it reasonable for the Union to believe that Fangmeyer was authorized to sign the Acceptance of Agreements on the Respondent's behalf. See Horizon Group of New England, 347 NLRB No. 74, slip op at 12 (2006).
No exceptions were filed to the judge's findings that the Respondent did not timely terminate its obligations to the Union under the June 1, 2005 collective-bargaining agreement, and that the Union established the relevance of the information requested in the Jan. 5, 2006 letter to the Respondent.
(Chairman Battista and Members Liebman and Walsh participated.)
Charge filed by Carpenters Ohio and Vicinity Regional Council; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Cincinnati on June 20, 2006. Adm. Law Judge Arthur J. Amchan issued his decision Aug. 28, 2006.
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