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Extra, Extra: NLRB Denies Newspaper Carriers Right to Organize
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Written by Erin Johansson   
October 26, 2005

Given all the obstacles workers face when forming unions these days, the last thing they should have to worry about is whether they are, in fact, workers under the law.  Yet for the third time since 2004, the National Labor Relations Board (NLRB) has ruled that a category of workers should not be considered employees.  This time around, newspaper delivery carriers didn’t make the cut.  But the NLRB decision didn’t simply end a semantic debate for thousands of men and women who deliver newspapers around the country, it denied them legal protection to form a union to improve their working conditions. 

While the nostalgic image of enterprising young paper boys earning money after school still persists, nowadays most newspaper carriers are adults who deliver papers as a primary source of income.  Yet making ends meet with this job can be tough.  Concerned with their meager earnings and a lack of health benefits, the newspaper carriers who haul and deliver the St. Joseph News-Press of St. Joseph, MO, sought to form a union.  In October 1999, the carriers contacted the International Brotherhood of Teamsters (IBT) to help them obtain union representation.  Soon after the effort began, the St. Joseph News-Press fired two pro-union carriers and cut back the work of two others, leading the IBT to file unfair labor practice charges with the NLRB.

Collecting Dust at the NLRB

14 days
  Time it took a Washington State superior court to rule on a challenge to the 2004 Gubernatorial election results2

133 days
Median length of time for the Board to rule on challenges to union representation election results3

In its defense, St. Joseph News-Press argued that the carriers were not employees, but independent contractors.  The distinction mattered greatly: if the NLRB ruled the carriers were employees, their right to form a union would be protected by federal labor law.  If the carriers were deemed to be independent contractors, they’d have no legal protection to form a union, let alone protection against discrimination for their support of a union.1

In September 2001, an NLRB administrative law judge determined that the carriers were in fact employees who “do not operate independent businesses and they devote virtually all of their time, labor, and equipment to providing the essential functions of the [company’s] newspaper business.”  The judge ruled the company illegally discriminated against them based on their union activities, and ordered the company to reinstate the workers with backpay.  Yet, instead of abiding by the judge’s ruling, the company appealed the ruling to the Board.

Four years later, the Board majority reversed the judge’s order.  On August 27, 2005, they ruled that the carriers were independent contractors because, among other factors, they maintain their own vehicles, can solicit new customers, and are subject to only limited discipline by the company.4  The dissenting member argued that the carriers were employees because of their strong economic dependence on the newspaper company that dictated nearly all the significant terms of their work.  She noted St. Joseph News-Press sets the amount of profit made on each newspaper sale, ultimately controls the delivery route and number of customers, and has the power to terminate the contract at any time with no notice. 

When Is A Worker Not A Worker?

In 2004, when faced with similar cases addressing legal protection for graduate assistants and disabled employees the Board ruled they weren’t workers and chose to strip thousands of the right to organize. 

In its ruling, the NLRB didn’t deliver justice to the newspaper carriers who were fired and discriminated against for simply trying to improve their job conditions.  Moreover, this case presented the Board with an opportunity to address the harsh economic realities of today’s increasingly contingent workforce—one that lacks job security and decent benefits.  But as they have in almost every decision with broad consequences, the current Board majority came down on the side of the employer and eschewed their responsibility to protect these workers, and ultimately, thousands of newspaper carriers across the country.

 

Citations

1. Independent contractors were explicitly excluded from the National Labor Relations Act by the 1947 Labor Management Relations Act amendment.  While other classifications of employees, including supervisors, domestic and agricultural workers, and public employees, are also excluded from the Act, they are still allowed to organize outside the protection of the law.  However workers defined as independent contractors potentially violate anti-trust law (banning collectively fixing prices) if they attempt to form unions.  Taxi drivers, freelance writers, and physicians have encountered such legal problems in efforts to organize.
2. Trial for Dino Rossi’s challenge to the race began on May 23, 2005 and ended with a decision by the Chelan County Superior Court on June 6, 2005.
3. Sixty-Ninth Annual Report of the National Labor Relations Board, FY 2004.  Median days between the close of a post-election hearing and the Board’s decision.
4. St. Joseph News-Press 345 NLRB 31 (2005).

 
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American Rights at Work is a nonprofit advocacy organization dedicated to promoting the freedom of workers to organize unions and bargain collectively with employers.

 

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