Board rules in independent contractor question

On April 1, 2003, the National Labor Relations Board Region 9 office found that newspaper carriers at three distribution centers of The Courier-Journal in Louisville were employees. On Aug. 27, 2005, while the case was pending before the NLRB in Washington, D.C., the NLRB made an independent contractor ruling in the St. Joseph News-Press case involving the status of newspaper carriers. On the same day, the NLRB remanded back to the NLRB regional office The Courier-Journal decision and asked the regional office to reconsider its decision in view of the new ruling in St. Joseph News-Press.

On Jan. 6, 2006, the NLRB reversed course and ruled that the newspaper carriers at The Courier-Journal are independent contractors and not eligible for unionization.

In the supplemental decision order, the NLRB stated, "I have carefully reviewed the record in this matter and I conclude that there is no meaningful distinction between the instant case and St. Joseph's. The precedent of St. Joseph's provides clear guidance as to the status of the carriers in the instant case that being that they are independent contractors rather than employees."

The NLRB determined that the newspaper carriers had the right to control the manner and means of delivering newspapers. The carriers were free to determine the sequence of delivery. The carriers had the right to use substitutes whenever they desired. In the event that the publishing company had to make a delivery for the carrier, the carrier was charged by The Courier-Journal for that delivery.

The carriers were required by contract to provide the vehicle needed, to fuel it, and to maintain it. Significantly, the NLRB noted that The Courier-Journal exercised no control over the vehicles; The Courier-Journal was not involved with carriers' acquisition or ownership of the vehicles.

With respect to entrepreneurial liberty, the carriers had the right to deliver other products at the same time that they were delivering The Courier-Journal. Carriers also had the right to contract for more than one route. Again, the NLRB emphasized the right of the carriers to utilize substitutes when the carrier was unavailable to make deliveries.

The carriers were free to do this without approval of The Courier-Journal, and the carriers handled all of the remuneration for the substitutes. The carriers also had the right on their own to sign up new subscribers and receive a bonus in the range of $2. to $10.

The carriers were not subject to any discipline. The only option available to The Courier-Journal if there were problems with a carrier's performance was to declare the contract in breach and to terminate it. "Thus, the progressive disciplinary procedures applicable to the employer's other employees do not apply to the carriers."

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