1. The meaning of the term "employee" in the National Labor
Relations Act is to be determined not exclusively by reference to
common law standards, local law, or legal classifications made for
other purposes, but with regard also to the history, context and
purposes
Page 322 U. S. 112
of the Act and to the economic facts of the particular
relationship. Pp.
322 U. S. 120,
322 U. S.
129.
2. The determination of the National Labor Relations Board that,
in the circumstances of the case, a person is an "employee" under
the National Labor Relations Act, may not be set aside on review if
it has warrant in the record and a reasonable basis in law. P.
322 U. S.
130.
3. The conclusion of the National Labor Relations Board that
"newsboys" distributing respondents' papers on the streets of the
city were employees under the National Labor Relations Act is
supported by the findings and the evidence, and has ample basis in
the law. P.
322 U. S.
131.
The Board found that the "newsboys" work continuously and
regularly, rely upon their earnings for the support of themselves
and their families, and have their total wages influenced in large
measure by the publishers (respondents), who dictate their buying
and selling prices, fix their markets and control their supply of
papers; that their hours of work and their efforts on the job are
supervised and to some extent prescribed by the publishers or the
publishers' agents; and that a substantial part of their sales
equipment and advertising materials is furnished by the publishers
with the intention that it be used for the publishers' benefit.
4. The Board's designation of the collective bargaining units in
this case -- (1) full-time newsboys and "checkmen," engaged to sell
papers within the city, and excluding bootjackers, temporary,
casual, and part-time newsboys; and (2) newsboys selling at
established spots in the city, four or more hours per day, five or
more days per week, except temporary newsboys -- was within its
discretion, and is sustained. P.
322 U. S.
132.
(a) That the Board's selection of the collective bargaining
units emphasizes difference in tenure, rather than in function was,
on the record in this case, not an abuse of discretion. P.
322 U. S.
133.
(b) The Board's exclusion of suburban newsboys from the
collective bargaining units, on the ground that they were not
organized by the union, was, on the record in this case, not an
abuse of discretion. P.
322 U. S.
133.
Page 322 U. S. 113
136 F.2d 608 reversed.
Certiorari, 320 U.S. 728, to review decrees denying enforcement
of orders of the National Labor Relations Board (39 N.L.R.B.
1245,1256) and setting aside the orders.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
These cases arise from the refusal of respondents, publishers of
four Los Angeles daily newspapers, to bargain collectively with a
union representing newsboys who distribute their papers on the
streets of that city. Respondents' contention that they were not
required to bargain because the newsboys are not their "employees"
within the meaning of that term in the National Labor Relations
Act, 49 Stat. 450, 29 U.S.C. § 152, [
Footnote 1] presents the important question which we
granted certiorari [
Footnote 2]
to resolve.
Page 322 U. S. 114
The proceedings before the National Labor Relations Board were
begun with the filing of four petitions for investigation and
certification [
Footnote 3] by
Los Angeles Newsboys Local Industrial Union No. 75. Hearings were
held in a consolidated proceeding, [
Footnote 4] after which the Board made findings of fact
and concluded that the regular full-time newsboys selling each
paper were employees within the Act and that questions affecting
commerce concerning the representation of employees had arisen. It
designated appropriate units and ordered elections. 28 N.L.R.B.
1006. [
Footnote 5] At these,
the union was selected as their representative by majorities of the
eligible newsboys. After the union was appropriately certified. 33
N.L.R.B. 941, 36 N.L.R.B. 285, the respondents refused to bargain
with it. Thereupon, proceedings under Section 10, 49 Stat. 453-455,
29 U.S.C. § 160, were instituted, a hearing [
Footnote 6] was held, and respondents were found
to have violated Section 8(1) and (5) of the Act, 49 Stat. 452,
453, 29 U.S.C. § 158(1), (5). They were ordered to cease and desist
from such violations and to bargain collectively with the union
upon request. 39 N.L.R.B. 1245, 1256.
Upon respondents' petitions for review and the Board's petitions
for enforcement, the Circuit Court of Appeals, one judge
dissenting, set aside the Board's orders. Rejecting
Page 322 U. S. 115
the Board's analysis, the court independently examined the
question whether the newsboys are employees within the Act, decided
that the statute imports common law standards to determine that
question, and held the newsboys are not employees. 136 F.2d
608.
The findings of the Board disclose that the Los Angeles Times
and the Los Angeles Examiner, published daily and Sunday, [
Footnote 7] are morning papers. Each
publishes several editions which are distributed on the streets
during the evening before their dateline, between about 6:00 or
6:30 p.m. and 1:00 a.m., and other editions distributed during the
following morning until about 10:00 o'clock. The Los Angeles
Evening Herald and Express, published every day but Sunday, is an
evening paper, which has six editions on the presses between 9:00
a.m. and 5:30 p.m. [
Footnote 8]
The News, also published every day but Sunday, is a twenty-four
hour paper with ten editions. [
Footnote 9]
The papers are distributed to the ultimate consumer through a
variety of channels, including independent dealers and newsstands
often attached to drug, grocery or confectionery stores, carriers
who make home deliveries, and newsboys who sell on the streets of
the city and its suburbs. Only the last of these are involved in
this case.
The newsboys work under varying terms and conditions. They may
be "bootjackers," selling to the general public at places other
than established corners, or they may sell
Page 322 U. S. 116
at fixed "spots." They may sell only casually or part-time, or
full-time; and they may be employed regularly and continuously or
only temporarily. The units which the Board determined to be
appropriate are composed of those who sell full-time at established
spots. Those vendors, misnamed boys, are generally mature men,
dependent upon the proceeds of their sales for their sustenance,
and frequently supporters of families. Working thus as news vendors
on a regular basis often for a number of years, they form a stable
group with relatively little turnover, in contrast to schoolboys
and others who sell as bootjackers, temporary and casual
distributors.
Over-all circulation and distribution of the papers are under
the general supervision of circulation managers. But, for purposes
of street distribution, each paper has divided metropolitan Los
Angeles into geographic districts. Each district is under the
direct and close supervision of a district manager. His function in
the mechanics of distribution is to supply the newsboys in his
district with papers which he obtains from the publisher and to
turn over to the publisher the receipts which he collects from
their sales, either directly or with the assistance of "checkmen"
or "main spot" boys. [
Footnote
10] The latter, stationed at the important corners or "spots"
in the district, are newsboys who, among other things, receive
delivery of the papers, redistribute them to other newsboys
stationed at less important corners, and collect receipts from
their sales. [
Footnote 11]
For that service, which occupies a minor portion
Page 322 U. S. 117
of their working day, the checkmen receive a small salary from
the publisher. [
Footnote 12]
The bulk of their day, however, they spend in hawking papers at
their "spots" like other full-time newsboys. A large part of the
appropriate units selected by the Board for the News and the Herald
are checkmen who, in that capacity, clearly are employees of those
papers.
The newsboys' compensation consists in the difference between
the prices at which they sell the papers and the prices they pay
for them. The former are fixed by the publishers, and the latter
are fixed either by the publishers or, in the case of the News, by
the district manager. [
Footnote
13] In practice, the newsboys receive their papers on credit.
They pay for those sold either sometime during or after the close
of their selling day, returning for credit all unsold papers.
[
Footnote 14] Lost or
otherwise unreturned papers, however, must be paid for as though
sold. Not only is the "profit" per paper thus effectively fixed by
the publisher, but substantial control of the newsboys' total "take
home" can be effected through the ability to designate their sales
areas and the power to determine the number of papers allocated to
each. While, as a practical matter, this power is not exercised
fully, the newsboys' "right" to decide how many papers they will
take is also not absolute. In practice, the Board found, they
cannot determine the size of their established order without the
cooperation of the district manager. And often the number of papers
they must take is determined unilaterally by the district
managers.
In addition to effectively fixing the compensation, respondents
in a variety of ways prescribe, if not the
Page 322 U. S. 118
minutiae of daily activities, at least the broad terms and
conditions of work. This is accomplished largely through the
supervisory efforts of the district managers, who serve as the
nexus between the publishers and the newsboys. [
Footnote 15] The district managers assign
"spots" or corners to which the newsboys are expected to confine
their selling activities. [
Footnote 16] Transfers from one "spot" to another may be
ordered by the district manager for reasons of discipline or
efficiency or other cause. Transportation to the spots from the
newspaper building is offered by each of respondents. Hours of work
on the spots are determined not simply by the impersonal pressures
of the market, but to a real extent by explicit instructions from
the district managers. Adherence to the prescribed hours is
observed closely by the district managers or other supervisory
agents of the publishers. Sanctions, varying in severity
Page 322 U. S. 119
from reprimand to dismissal, are visited on the tardy and the
delinquent. By similar supervisory controls, minimum standards of
diligence and good conduct while at work are sought to be enforced.
However wide may be the latitude for individual initiative beyond
those standards, district managers' instructions in what the
publishers apparently regard as helpful sales technique are
expected to be followed. Such varied items as the manner of
displaying the paper, of emphasizing current features and
headlines, and of placing advertising placards, or the advantages
of soliciting customers at specific stores or in the traffic lanes
are among the subjects of this instruction. Moreover, newsboys are
furnished with sales equipment, such as racks, boxes and change
aprons, and advertising placards by the publishers. In this pattern
of employment, the Board found that the newsboys are an integral
part of the publishers' distribution system and circulation
organization. And the record discloses that the newsboys and
checkmen feel they are employees of the papers, and respondents'
supervisory employees, if not respondents themselves, regard them
as such.
In addition to questioning the sufficiency of the evidence to
sustain these findings, respondents point to a number of other
attributes characterizing their relationship with the newsboys,
[
Footnote 17] and urge that,
on the entire
Page 322 U. S. 120
record, the latter cannot be considered their employees. They
base this conclusion on the argument that, by common law standards,
the extent of their control and direction of the newsboys' working
activities creates no more than an "independent contractor"
relationship, and that common law standards determine the
"employee" relationship under the Act. They further urge that the
Board's selection of a collective bargaining unit is neither
appropriate nor supported by substantial evidence. [
Footnote 18]
I
The principal question is whether the newsboys are "employees."
Because Congress did not explicitly define the term, respondents
say its meaning must be determined by reference to common law
standards. In their view, "common law standards" are those the
courts have applied in distinguishing between "employees" and
"independent contractors" when working out various problems
unrelated to the Wagner Act's purposes and provisions.
The argument assumes that there is some simple, uniform and
easily applicable test which the courts have used, in dealing with
such problems, to determine whether persons doing work for others
fall in one class or the other. Unfortunately this is not true.
Only by a long and tortuous history was the simple formulation
worked out which has been stated most frequently as "the test" for
deciding whether one who hires another is responsible in tort for
his wrongdoing. [
Footnote
19] But this formula has been by no means
Page 322 U. S. 121
exclusively controlling in the solution of other problems. And
its simplicity has been illusory because it is more largely
simplicity of formulation than of application. Few problems in the
law have given greater variety of application and conflict in
results than the cases arising in the borderland between what is
clearly an employer-employee relationship and what is clearly one
of independent entrepreneurial dealing. [
Footnote 20] This is true within the limited field of
determining vicarious liability in tort. It becomes more so when
the field is expanded to include all of the possible applications
of the distinction.
It is hardly necessary to stress particular instances of these
variations or to emphasize that they have arisen principally,
first, in the struggle of the courts to work out common law
liabilities where the legislature has given no guides for judgment,
[
Footnote 21] more recently
also under statutes which have posed the same problem for solution
in the light of the enactment's particular terms and purposes.
[
Footnote 22]
Page 322 U. S. 122
It is enough to point out that, with reference to an identical
problem, results may be contrary over a very considerable region of
doubt in applying the distinction, depending upon the state or
jurisdiction where the determination is made; [
Footnote 23] and that, within a single
jurisdiction, a person who, for instance, is held to be an
"independent contractor" for the purpose of imposing vicarious
liability in tort may be an "employee" for the purposes of
particular legislation, such as unemployment compensation.
See,
e.g., Globe Grain & Milling Co. v. Industrial Comm'n, 98
Utah 36, 91 P.2d 512. In short, the assumed simplicity and
uniformity, resulting from application of "common law standards,"
does not exist.
Mere reference to these possible variations as characterizing
the application of the Wagner Act in the treatment of persons
identically situated in the facts surrounding their employment and
in the influences tending to disrupt it would be enough to require
pause before accepting a thesis which would introduce them into its
administration. This would be true even if the statute itself had
indicated less clearly than it does the intent they should not
apply.
Two possible consequences could follow. One would be to refer
the decision of who are employees to local state law. The
alternative would be to make it turn on a sort of pervading general
essence distilled from state law. Congress obviously did not intend
the former result. It
Page 322 U. S. 123
would introduce variations into the statute's operation as wide
as the differences the forty-eight states and other local
jurisdictions make in applying the distinction for wholly different
purposes. Persons who might be "employees" in one state would be
"independent contractors" in another. They would be within or
without the statute's protection depending not on whether their
situation falls factually within the ambit Congress had in mind,
but upon the accidents of the location of their work and the
attitude of the particular local jurisdiction in casting doubtful
cases one way or the other. Persons working across state lines
might fall in one class or the other, possibly both, depending on
whether the Board and the courts would be required to give effect
to the law of one state or of the adjoining one, or to that of each
in relation to the portion of the work done within its borders.
Both the terms and the purposes of the statute, as well as the
legislative history, show that Congress had in mind no such
patchwork plan for securing freedom of employees' organization and
of collective bargaining. The Wagner Act is federal legislation,
administered by a national agency, intended to solve a national
problem on a national scale.
Cf. e.g., Sen.Rep. No. 573,
74th Cong., 1st Sess. 2-4. It is an Act, therefore, in reference to
which it is not only proper, but necessary for us to assume, "in
the absence of a plain indication to the contrary, that Congress .
. . is not making the application of the federal act dependent on
state law."
Jerome v. United States, 318 U.
S. 101,
318 U. S. 104.
Nothing in the statute's background, history, terms or purposes
indicates its scope is to be limited by such varying local
conceptions, either statutory or judicial, or that it is to be
administered in accordance with whatever different standards the
respective states may see fit to adopt for the disposition of
unrelated, local problems. Consequently, so far as the meaning of
"employee" in this statute is concerned, "the federal law must
prevail no matter what name is given to the interest or
Page 322 U. S. 124
right by state law."
Morgan v. Commissioner,
309 U. S. 78,
309 U. S. 81;
cf. Labor Board v. Blount, 131 F.2d 585 (C.C.A.).
II
Whether, given the intended national uniformity, the term
"employee" includes such workers as these newsboys must be answered
primarily from the history, terms and purposes of the legislation.
The word "is not treated by Congress as a word of art having a
definite meaning. . . ." Rather "it takes color from its
surroundings . . . [in] the statute where it appears,"
United
States v. American Trucking Assns., Inc., 310 U.
S. 534,
310 U. S. 545,
and derives meaning from the context of that statute, which "must
be read in the light of the mischief to be corrected and the end to
be attained."
South Chicago Coal & Dock Co. v.
Bassett, 309 U. S. 251,
309 U. S. 259;
cf. New Negro Alliance v. Sanitary Grocery Co.,
303 U. S. 552;
Drivers' Union v. Lake Valley Farm Products, Inc.,
311 U. S. 91.
Congress, on the one hand, was not thinking solely of the
immediate technical relation of employer and employee. It had in
mind at least some other persons than those standing in the
proximate legal relation of employee to the particular employer
involved in the labor dispute. [
Footnote 24] It cannot be taken, however, that the
purpose was to include all other persons who may perform service
for another, or was to ignore entirely legal classifications made
for other purposes. Congress had in mind a wider field than the
narrow technical legal relation of "master and servant," as the
common law had worked this out in all its variations, and at the
same time a narrower one than the entire area of rendering service
to others. The question comes down, therefore, to how much was
included of the intermediate
Page 322 U. S. 125
region between what is clearly and unequivocally "employment,"
by any appropriate test, and what is as clearly entrepreneurial
enterprise, and not employment.
It will not do, for deciding this question as one of uniform
national application, to import wholesale the traditional common
law conceptions or some distilled essence of their local variations
as exclusively controlling limitations upon the scope of the
statute's effectiveness. To do this would be merely to select some
of the local, hairline variations for nationwide application, and
thus to reject others for coverage under the Act. That result
hardly would be consistent with the statute's broad terms and
purposes.
Congress was not seeking to solve the nationally harassing
problems with which the statute deals by solutions only partially
effective. It rather sought to find a broad solution, one that
would bring industrial peace by substituting, so far as its power
could reach, the rights of workers to self-organization and
collective bargaining for the industrial strife which prevails
where these rights are not effectively established. Yet only
partial solutions would be provided if large segments of workers
about whose technical legal position such local differences exist
should be wholly excluded from coverage by reason of such
differences. Yet that result could not be avoided if choice must be
made among them and controlled by them in deciding who are
"employees" within the Act's meaning. Enmeshed in such
distinctions, the administration of the statute soon might become
encumbered by the same sort of technical legal refinement as has
characterized the long evolution of the employee-independent
contractor dichotomy in the courts for other purposes. The
consequences would be ultimately to defeat, in part at least, the
achievement of the statute's objectives. Congress no more intended
to
Page 322 U. S. 126
import this mass of technicality as a controlling "standard" for
uniform national application than to refer decision of the question
outright to the local law.
The Act, as its first section states, was designed to avert the
"substantial obstructions to the free flow of commerce" which
result from "strikes and other forms of industrial strife or
unrest" by eliminating the causes of that unrest. It is premised on
explicit findings that strikes and industrial strife themselves
result in large measure from the refusal of employers to bargain
collectively and the inability of individual workers to bargain
successfully for improvements in their "wages, hours, or other
working conditions" with employers who are "organized in the
corporate or other forms of ownership association." Hence the
avowed and interrelated purposes of the Act are to encourage
collective bargaining and to remedy the individual worker's
inequality of bargaining power by
"protecting the exercise . . . of full freedom of association,
self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions
of their employment or other mutual aid or protection."
49 Stat. 449, 450, 29 U.S.C. § 151.
The mischief at which the Act is aimed and the remedies it
offers are not confined exclusively to "employees" within the
traditional legal distinctions separating them from "independent
contractors." Myriad forms of service relationship, with infinite
and subtle variations in the terms of employment, blanket the
nation's economy. Some are within this Act, others beyond its
coverage. Large numbers will fall clearly on one side or on the
other, by whatever test may be applied. But intermediate there will
be many the incidents of whose employment partake in part of the
one group, in part of the other, in varying proportions of weight.
And consequently the legal pendulum, for purposes of applying the
statute, may swing one way
Page 322 U. S. 127
or the other, depending upon the weight of this balance and its
relation to the special purpose at hand.
Unless the common law tests are to be imported and made
exclusively controlling, without regard to the statute's purposes,
it cannot be irrelevant that the particular workers in these cases
are subject, as a matter of economic fact, to the evils the statute
was designed to eradicate and that the remedies it affords are
appropriate for preventing them or curing their harmful effects in
the special situation. Interruption of commerce through strikes and
unrest may stem as well from labor disputes between some who, for
other purposes, are technically "independent contractors" and their
employers as from disputes between persons who, for those purposes,
are "employees" and their employers.
Cf. Drivers' Union v. Lake
Valley Co., 311 U. S. 91.
Inequality of bargaining power in controversies over wages, hours
and working conditions may as well characterize the status of the
one group as of the other. The former, when acting alone, may be as
"helpless in dealing with an employer," as "dependent . . . on his
daily wage" and as "unable to leave the employ and to resist
arbitrary and unfair treatment" as the latter. For each, "union . .
. [may be] essential to give . . . opportunity to deal on equality
with their employer." [
Footnote
25] And for each, collective bargaining may be appropriate and
effective for the "friendly adjustment of industrial disputes
arising out of differences as to wages, hours, or other working
conditions." [
Footnote 26]
49 Stat. 449. In
Page 322 U. S. 128
short, when the particular situation of employment combines
these characteristics, so that the economic facts of the relation
make it more nearly one of employment than of independent business
enterprise with respect to the ends sought to be accomplished by
the legislation, those characteristics may outweigh technical legal
classification for purposes unrelated to the statute's objectives
and bring the relation within its protections.
To eliminate the causes of labor disputes and industrial strife,
Congress thought it necessary to create a balance of forces in
certain types of economic relationships. These do not embrace
simply employment associations in which controversies could be
limited to disputes over proper "physical conduct in the
performance of the service." [
Footnote 27] On the contrary, Congress recognized those
economic relationships cannot be fitted neatly into the containers
designated "employee" and "employer" which an earlier law had
shaped for different purposes. Its Reports on the bill disclose
clearly the understanding that "employers and employees not in
proximate relationship may be drawn into common controversies by
economic forces," [
Footnote
28] and that the very disputes sought to be avoided might
involve
Page 322 U. S. 129
"employees [who] are at times brought into an economic
relationship with employers who are not their employers." [
Footnote 29] In this light, the
broad language of the Act's definitions, which in terms reject
conventional limitations on such conceptions as "employee,"
"employer," and "labor dispute," [
Footnote 30] leaves no doubt that its applicability is to
be determined broadly, in doubtful situations, by underlying
economic facts, rather than technically and exclusively by
previously established legal classifications.
Cf. Labor Board
v. Blount, supra.
Hence, "technical concepts pertinent to an employer's legal
responsibility to third persons for the acts of his servants" have
been rejected in various applications of this Act both here
(
International Association of Machinists v. Labor Board,
311 U. S. 72,
311 U. S. 80-81;
H. J. Heinz Co. v. Labor Board, 311 U.
S. 514,
311 U. S.
520-521) [
Footnote
31] and in other federal courts (
Labor Board v. Condenser
Corp., 128 F.2d 67;
North Whittier Heights Citrus Ass'n v.
Labor Board, 109 F.2d 76, 82;
Labor Board v. Blount,
supra). There is no good reason for invoking them to restrict
the scope of the term "employee" sought to be done in this case.
That term, like other provisions, must be understood with reference
to the purpose of the Act and the facts involved in the economic
relationship. [
Footnote 32]
"Where all the conditions of the relation require protection,
protection ought to be given." [
Footnote 33]
Page 322 U. S. 130
It is not necessary in this case to make a completely definitive
limitation around the term "employee." That task has been assigned
primarily to the agency created by Congress to administer the Act.
Determination of "where all the conditions of the relation require
protection" involves inquiries for the Board charged with this
duty. Everyday experience in the administration of the statute
gives it familiarity with the circumstances and backgrounds of
employment relationships in various industries, with the abilities
and needs of the workers for self-organization and collective
action, and with the adaptability of collective bargaining for the
peaceful settlement of their disputes with their employers. The
experience thus acquired must be brought frequently to bear on the
question who is an employee under the Act. Resolving that question,
like determining whether unfair labor practices have been
committed, "belongs to the usual administrative routine" of the
Board. [
Footnote 34]
Gray v. Powell, 314 U. S. 402,
314 U. S. 411.
Cf. Labor Board v. Standard Oil Co., 138 F.2d 885, 887,
888.
In making that body's determinations as to the facts in these
matters conclusive, if supported by evidence, Congress entrusted to
it primarily the decision whether the evidence establishes the
material facts. Hence, in reviewing the Board's ultimate
conclusions, it is not the court's function to substitute its own
inferences of fact for the Board's when the latter have support in
the record.
Labor Board v. Nevada Consolidated Copper
Corp., 316 U. S. 105;
cf. Walker v. Altmeyer, 137 F.2d 531. Undoubtedly
questions of statutory interpretation, especially when arising in
the first instance in judicial proceedings, are for
Page 322 U. S. 131
the courts to resolve, giving appropriate weight to the judgment
of those whose special duty is to administer the questioned
statute.
Norwegian Nitrogen Products Co. v. United States,
288 U. S. 294;
United States v. American Trucking Associations, Inc.,
310 U. S. 534. But
where the question is one of specific application of a broad
statutory term in a proceeding in which the agency administering
the statute must determine it initially, the reviewing court's
function is limited. Like the commissioner's determination under
the Longshoremen's & Harbor Workers' Act, [
Footnote 35] that a man is not a "member of a
crew" (
South Chicago Coal & Dock Co. v. Bassett,
309 U. S. 251) or
that he was injured "in the course of his employment" (
Parker
v. Motor Boat Sales, Inc., 314 U. S. 244) and
the Federal Communications Commission's determination [
Footnote 36] that one company is
under the "control" of another (
Rochester Telephone Corp. v.
United States, 307 U. S. 125),
the Board's determination that specified persons are "employees"
under this Act is to be accepted if it has "warrant in the record"
and a reasonable basis in law.
In this case, the Board found that the designated newsboys work
continuously and regularly, rely upon their earnings for the
support of themselves and their families, and have their total
wages influenced in large measure by the publishers who dictate
their buying and selling prices, fix their markets, and control
their supply of papers. Their hours of work and their efforts on
the job are supervised and to some extent prescribed by the
publishers or their agents. Much of their sales equipment and
advertising materials is furnished by the publishers with the
intention that it be used for the publisher's benefit. Stating
that
"the primary consideration in the determination of the
applicability of the statutory definition is whether
Page 322 U. S. 132
effectuation of the declared policy and purposes of the Act
comprehends securing to the individual the rights guaranteed and
protection afforded by the Act,"
the Board concluded that the newsboys are employees. The record
sustains the Board's findings, and there is ample basis in the law
for its conclusion.
III
The Board's selection of the collective bargaining units also
must be upheld. The units chosen for the News and the Herald
consist of all full-time [
Footnote 37] newsboys and checkmen engaged to sell the
papers in Los Angeles. Bootjackers, temporary, casual and part-time
[
Footnote 38] newsboys are
excluded. The units designated for the Times and the Examiner
consist of newsboys selling at established spots [
Footnote 39] in Los Angeles [
Footnote 40] four or more hours per day
five or more days per week, except temporary newsboys. [
Footnote 41]
The Board predicated its designations in part upon the finding
that the units included, in general, men who were responsible
workers, continuously and regularly employed as vendors, and
dependent upon their sales for their livelihood,
Page 322 U. S. 133
while schoolboys and transient or casual workers were excluded.
The discretion which Congress vested in the Board to determine an
appropriate unit is hardly overstepped by the choice of a unit
based on a distinction so clearly consistent with the need for
responsible bargaining. That the Board's selection emphasizes
difference in tenure, rather than function, is, on this record
certainly, no abuse of discretion.
Nor is there substance in the objection that the Board's
designations on the one hand fail to embrace all workers who in
fact come within the responsible or stable full-time category
generically stated, and, on the other hand, fail to exclude all who
in fact come within the schoolboy or more volatile part-time
category. The record does not suggest that the units designated, at
least so far as Los Angeles newsboys are concerned, do not
substantially effectuate the Board's theory or embrace a large
portion of those who would make up a stable bargaining group based
on responsible tenure and full-time work. In these matters, the
Board cannot be held to mathematical precision. If it chooses to
couch its orders in terms which for good reasons it regards
effective to accomplish its stated ends, peripheral or hypothetical
deviations will not defeat an otherwise appropriate order.
Another objection urged by the Times, the Herald, and the
Examiner is to the Board's exclusion of suburban newsboys [
Footnote 42] from the units on the
ground they were not organized by the union. The Board found that,
although all vendors in metropolitan Los Angeles were eligible for
membership, the union had not been extended to the suburban groups
generally, and that no other labor organization was seeking to
represent respondents' employees. There is no suggestion either
that the union deliberately
Page 322 U. S. 134
excluded suburban newsboys who sought admission or that suburban
newsboys have displayed any interest in collective bargaining or
self-organization.
Wide variations in the forms of employee self-organization and
the complexities of modern industrial organization make difficult
the use of inflexible rules as the test of an appropriate unit.
Congress was informed of the need for flexibility in shaping the
unit to the particular case, [
Footnote 43] and accordingly gave the Board wide
discretion in the matter. Its choice of a unit is limited
specifically only by the requirement that it be an "employer unit,
craft unit, plant unit, or subdivision thereof," and that the
selection be made so as
"to insure to employees the full benefit of their right to
self-organization and to collective bargaining, and otherwise to
effectuate the policies of this Act."
Pittsburgh Plate Glass Co. v. Labor Board, 313 U.
S. 146. The flexibility which Congress thus permitted
has characterized the Board's administration of the section, and
has led it to resort to a wide variety of factors in case-to-case
determination of the appropriate unit. [
Footnote 44] Among the considerations to which it has
given weight is the extent of organization of the union requesting
certification or collective bargaining. This is done on the
expressed theory that it is desirable in the determination of an
appropriate unit to render collective bargaining of the company's
employees an immediate possibility. [
Footnote 45] No
Page 322 U. S. 135
plausible reason is suggested for withholding the benefits of
the Act from those here seeking it until a group of geographically
separated employees becomes interested in collective bargaining. In
the circumstances disclosed by this record, we cannot say the
Board's conclusions are lacking in a "rational basis."
The judgment are reversed, and the causes are remanded for
further proceedings not inconsistent with this opinion.
Reversed.
MR. JUSTICE REED concurs in the result. He is of the opinion
that the test of coverage for employees is that announced by the
Board in the matter of Stockholders Publishing Company, Inc., and
Los Angeles Newsboys Local Industrial Union No. 75, C.I.O., and
other similar cases, decided January 9, 1941, 28 N.L.R.B. 1006,
1022, 1023.
* Together with No. 337,
Labor Board v. Stockholders
Publishing Co., Inc., No. 338,
Labor Board v. Hearst
Publications, Inc., and No. 339,
Labor Board v.
Times-Mirror Co., also on writs of certiorari to the Circuit
Court of Appeals for the Ninth Circuit.
[
Footnote 1]
Section 2(3) of the Act provides that
"The term 'employee' shall include any employee, and shall not
be limited to the employees of a particular employer, unless the
Act explicitly states otherwise, and shall include any individual
whose work has ceased as a consequence of, or in connection with,
any current labor dispute or because of any unfair labor practice,
and who has not obtained any other regular and substantially
equivalent employment, but shall not include any individual
employed as an agricultural laborer, or in the domestic service of
any family or person at his home, or any individual employed by his
parent or spouse."
[
Footnote 2]
320 U.S. 728.
[
Footnote 3]
Pursuant to Section 9(b) and (c) of the Act, 49 Stat. 453, 29
U.S.C. § 159(b) and (c).
[
Footnote 4]
Although it treated the four representation petitions in one
consolidated proceeding and disposed of them in one opinion, the
Board did not consider evidence with respect to one publisher as
applicable to any of the others.
[
Footnote 5]
Subsequently, those orders were amended in various details. 29
N.L.R.B. 94, 95; 30 N.L.R.B. 696, 697; 31 N.L.R.B. 697.
[
Footnote 6]
The record in the representation proceeding was, in effect,
incorporated in the complaint proceeding.
[
Footnote 7]
The Times' daily circulation is about 220,000 and its Sunday
circulation is about 368,000. The Examiner's daily circulation is
about 214,000 and its Sunday circulation is about 566,000.
[
Footnote 8]
The Herald has a circulation of about 243,000. Both it and the
Examiner are owned by Hearst Publications, Inc.
[
Footnote 9]
The News has a circulation of about 195,000. Its first three and
seventh editions are consigned for the most part to route delivery
or suburban dealers. Its fourth edition, which goes to press at
2:45 a.m., is sold in the city during the mornings. The remaining
editions, which go to press at regular intervals between 9:50 a.m
and 5:00 p.m., are sold in the city during the afternoons.
[
Footnote 10]
The Examiner, The Herald, and The News all employ "main spot"
boys or checkmen; the Times does not.
[
Footnote 11]
The Times district managers deliver the papers directly to the
newsboys and collect directly from them. On the other papers,
district managers may deliver bundles of papers to the checkmen or
directly to the newsboys themselves. The Times customarily
transports its newsboys to their "spots" from the Times building,
where they first report and pick up their papers. The other
respondents offer similar transportation to those of their newsboys
who desire it.
[
Footnote 12]
In the case of the Examiner, these "main spot" boys, although
performing services similar to those of checkmen, are less closely
knit to the publisher, and sometimes receive no compensation for
their services.
[
Footnote 13]
See infra, note
15
[
Footnote 14]
Newsboys selling the Herald in one residential area do not
receive credit for all unsold papers.
[
Footnote 15]
Admittedly the Times, Examiner, and Herald district managers are
employees of their respective papers. While the News urged
earnestly that its managers are not its employees, the Board found
otherwise. They do not operate on a formal salary basis, but they
receive guaranteed minimum payments which the Board found are "no
more than a fixed salary bearing another label." And while they,
rather than the publisher, fix the price of the paper to the
newsboy, the Board found, on substantial evidence, that they
function for the News in specified districts, distribute racks,
aprons, advertising placards from the News to the newsboys, give
instructions as to their use, supervise the redistributing
activities of the checkmen (themselves clearly employees of the
News), and hand out News checks to the checkmen for their services.
On this and other evidence suggesting that however different may be
their formal arrangements, News district managers bear
substantially the same relation to the publisher on one hand and
the newsboys on the other as do the other district managers, the
Board concluded that they were employees of the paper.
[
Footnote 16]
Although from time to time these "spots" are bought and sold
among the vendors themselves, without objection by district
managers and publishers, this in no way negates the need for the
district managers' implicit approval of a spotholder or their
authority to remove vendors from their "spots" for reasons of
discipline or efficiency.
[
Footnote 17]
E.g., that there is either no evidence in the record to
show, or the record explicitly negatives, that respondents carry
the newsboys on their payrolls, pay "salaries" to them, keep
records of their sales or locations, or register them as
"employees" with the Social Security Board, or that the newsboys
are covered by workmen's compensation insurance of the California
Compensation Act. Furthermore, it is urged the record shows that
the newsboys all sell newspapers, periodicals and other items not
furnished to them by their respective publishers, assume the risk
for papers lost, stolen or destroyed, purchase and sell their
"spots," hire assistants and relief men and make arrangements among
themselves for the sale of competing or left-over papers.
[
Footnote 18]
They have abandoned here the contention, made in the circuit
court, that the Act does not reach their controversies with the
newsboys because they do not affect commerce.
[
Footnote 19]
The so-called "control test" with which common law judges have
wrestled to secure precise and ready applications did not escape
the difficulties encountered in borderland cases by its
reformulation in the Restatement of the Law of Agency § 220. That,
even at the common law, the control test and the complex of
incidents evolved in applying it to distinguish an "employee" from
an "independent contractor," for purposes of vicarious liability in
tort, did not necessarily have the same significance in other
contexts,
compare Lumley v. Guy [1853] El. & Bl. 216,
and see also the cases collected in 21 A.L.R. 1229
et
seq.; 23 A.L.R. 984
et seq.
[
Footnote 20]
See, e.g., Stevens, The Test of the Employment Relation
(1939) 38 Mich.L.Rev. 188; Steffen, Independent Contractor and the
Good Life (1935) 2 U. of Chi.L.Rev. 501; Leidy, Salesmen as
Independent Contractors (1938) 28 Mich.L.Rev. 365; N.Y. Law
Revision Commission Report, 1939 (1939) Legislative Document No.
65(K).
[
Footnote 21]
[
Footnote 22]
[
Footnote 23]
Compare Stockwell v. Morris, 46 Wyo, 1,
22 P.2d 189,
with Auer v. Sinclair Refining Co., 103 N.J.L. 372, 137 A.
555;
Schomp v. Fuller Brush Co., 124 N.J.L. 487, 12 A.2d
702;
In re Schomp, 126 N.J.L. 368, 19 A.2d 780,
with
Fuller Brush Co. v. Industrial Comm., 99 Utah 97, 104 P.2d
201;
Stover Bedding Co. v. Industrial Comm'n, 99 Utah 423,
107 P.2d 1027, 134 P.2d 1006,
with Maltz v. Jackoway-Katz Cap
Co., 336 Mo. 1000, 82 S.W.2d 909.
[
Footnote 24]
[
Footnote 25]
American Steel Foundries Co. v. Tri-City Council,
257 U. S. 184,
257 U. S. 209,
cited in H.R.Rep. No. 1147, 74th Cong., 1st Sess., 10;
cf.
Bakery & Pastry Drivers v. Wohl, 315 U.
S. 769.
[
Footnote 26]
The practice of self-organization and collective bargaining to
resolve labor disputes has for some time been common among such
varied types of "independent contractors" as musicians (How
Collective Bargaining Works (20th Century Fund, 1942) 848-866;
Proceedings of the 47th Annual Convention of the American
Federation of Musicians (1942)), actors (
see e.g.
Collective Bargaining by Actors (1926) Bureau of Labor Statistics,
Bulletin No. 402; Harding, The Revolt of the Actors (1929); Ross,
Stars and Strikes (1941)), and writers (
see, e.g., Rosten,
Hollywood (1941); Ross, Stars and Strikes (1941) 48-63), and such
atypical "employees" as insurance agents, artists, architects and
engineers (
see, e.g., Proceedings of the 2d Convention of
the UOPWA, C.I.O. (1938); Proceedings of the 3d Convention of the
UOPWA, C.I.O. (1940); Handbook of American Trade Unions (1936);
Bureau of Labor Statistics, Bull. No. 618, 291-293; Constitution
and By-Laws of the IFTEAD of the A.F.L., 1942.)
[
Footnote 27]
Control of "physical conduct in the performance of the service"
is the traditional test of the "employee relationship" at common
law.
Cf., e.g., Restatement of the Law of Agency §
220(1).
[
Footnote 28]
Sen.Rep. No. 573, 74th Cong., 1st Sess. 7.
[
Footnote 29]
Sen.Rep. No. 573, 74th Cong., 1st Sess. 6.
[
Footnote 30]
Cf. Phelps Dodge Corp. v. Labor Board, 313 U.
S. 177;
and compare Drivers' Union v. Lake Valley
Co., 311 U. S. 91,
with Sen.Rep. No. 573, 74th Cong., 1st Sess. 7.
[
Footnote 31]
Compare Labor Board v. Waterman S.S. Corp.,
309 U. S. 206;
Phelps Dodge Corp. v. Labor Board, 313 U.
S. 177.
[
Footnote 32]
Cf. South Chicago Coal & Dock Co. v. Bassett,
309 U. S. 251;
Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 552
(C.C.A.)
[
Footnote 33]
Lehigh Valley Coal Co. v. Yensavage, 218 F. 547,
552.
[
Footnote 34]
E.g., Matter of Metro-Goldwyn-Mayer Studios, 7 N.L.R.B.
662, 686-690;
Matter of KMOX Broadcasting Station, 10
N.L.R.B. 479;
Matter of Interstate Granite Corp., 11
N.L.R.B. 1046;
Matter of Sun Life Ins. Co., 15 N.L.R.B.
817;
Matter of Kelly Co., 34 N.L.R.B. 325;
Matter of
John Yasek, 37 N.L.R.B. 156.
[
Footnote 35]
44 Stat. 1424, 33 U.S.C. § 901
et seq.
[
Footnote 36]
Under § 2(b) of the Communications Act of 1934, 48 Stat. 1064,
1065, 47 U.S.C. § 152(b).
[
Footnote 37]
Full-time newsboys for the Herald includes those who regularly
sell to the public five or more editions five or more days per
week. Full-time newsboys for the News includes those who regularly
sell to the general public the fifth, sixth, eighth, ninth and
tenth, or the sixth, eighth, ninth and tenth editions five or more
days per week, or the fourth and earlier editions for at least four
hours daily between 4:00 a.m. and 10:00 a.m. five days per
week.
[
Footnote 38]
Part-time newsboys for the Herald means those selling less than
five editions daily or for less than five days per week.
[
Footnote 39]
Established spots are corners at which newsboys sold those
papers for at least five or more days per week during at least six
consecutive months.
[
Footnote 40]
Glendale is included in the Times unit.
[
Footnote 41]
Temporary newsboys are those selling for less than thirty-one
consecutive days.
[
Footnote 42]
Except newsboys selling the Times in Glendale.
[
Footnote 43]
Hearings before Committee on Education and Labor on S. 1958,
74th Cong., 1st Sess. 83.
[
Footnote 44]
E.g., see First Annual Report of the National Labor
Relations Board 112-120; Second Annual Report of the National Labor
Relations Board 122-140; Third Annual Report of the National Labor
Relations Board 156-197; Fourth Annual Report of the National Labor
Relations Board 82-97; Fifth Annual Report of the National Labor
Relations Board 63-72; Sixth Annual Report of the National Labor
Relations Board 63-71.
[
Footnote 45]
Matter of Gulf Oil Corp., 4 N.L.R.B. 133.
MR. JUSTICE ROBERTS.
I think the judgment of the Circuit Court of Appeals should be
affirmed. The opinion of that court reported in 136 F.2d 608, seems
to me adequately to state the controlling facts and correctly to
deal with the question of law presented for decision. I should not
add anything were it not for certain arguments presented here and
apparently accepted by the court.
I think it plain that newsboys are not "employees" of the
respondents within the meaning and intent of the National Labor
Relations Act. When Congress, in § 2(3), said: "The term "employee"
shall include any employee, . . ." it stated as clearly as language
could do it that the provisions of the Act were to extend to those
who, as a result of decades of tradition which had become part of
the common understanding of our people, bear the named
relationship. Clearly also, Congress did not delegate
Page 322 U. S. 136
to the National Labor Relations Board the function of defining
the relationship of employment so as to promote what the Board
understood to be the underlying purpose of the statute. The
question who is an employee, so as to make the statute applicable
to him, is a question of the meaning of the Act, and therefore is a
judicial, and not an administrative, question.
I do not think that the court below suggested that the federal
courts sitting in the various states must determine whether a given
person is an employee by application of either the local statutes
or local state decisions. Quite the contrary. As a result of common
law development, many prescriptions of federal statutes take on
meaning which is uniformly ascribed to them by the federal courts,
irrespective of local variance.
Funk v. United States,
290 U. S. 371.
This court has repeatedly resorted to just such considerations in
defining the very term "employee" as used in other federal
statutes, as the opinion of the court below shows. There is a
general and prevailing rule throughout the Union as to the indicia
of employment and the criteria of one's status as employee.
Unquestionably it was to this common, general, and prevailing
understanding that Congress referred in the statute and, according
to that understanding, the facts stated in the opinion below, and
in that of this court, in my judgment, demonstrate that the
newsboys were not employees of the newspapers.
It is urged that the Act uses the term in some loose and unusual
sense such as justifies the Board's decision because Congress added
to the definition of employee above quoted these further words:
"and shall not be limited to the employees of a particular
employer, unless the Act explicitly states otherwise. . . ." The
suggestion seems to be that Congress intended that the term
employee should mean those who were not in fact employees, but
it
Page 322 U. S. 137
is perfectly evident not only from the provisions of the Act as
a whole, but from the Senate Committee's Report, that this phrase
was added to prevent any misconception of the provisions whereby
employees were to be allowed freely to combine and to be
represented in collective bargaining by the representatives of
their union. Congress intended to make it clear that employee
organizations did not have to be organizations of the employees of
any single employer. But that qualifying phrase means no more than
this, and was never intended to permit the Board to designate as
employees those who, in traditional understanding, have no such
status.