Hearst Publications, Inc. v. National Labor Relations Board , 136 F.2d 608 ( 1943 )

DENMAN, Circuit Judge

(dissenting).

The question here is whether these adult news vendors, miscalled boys, are employee selling agents of the publishers or independent contractors, who obtain title when a certain sum is charged against them on their receipt of the papers from the publishers. If I were free to draw my own inferences from the testimony, I would decide that they were independent contractors, engaged in their own businesses on their respective spots. •

However, we are not free to draw our own inferences, and the sole question before us is whether the Board reasonably could infer from the varied incidents of the relationship between the men and the publishers that it is one of employer and employee. Cf. my dissenting opinions in the two cases of National Labor Relations Board v. Citizen News Co., 9 Cir., 134 F.2d 962, and Id., 9 Cir., 134 F.2d 970, filed April 8, 1943, and April 16, 1943, respectively.

I do not regard the fact that on receipt of the papers by these men a certain amount is charged against them, as conclusively showing a passage of title to them. Employees are frequently charged with the value of the employer’s property entrusted to the employees’ care, and later docked for an equal amount for negligent loss or misuse.

No general bill of sale or written or other agreement existed showing an independent contractor relationship. To me it is significant that with the long period of dispute over that relationship, no such an agreement was in fact made. Nothing in the National Labor Relations Act prevents one from arranging his business relations with another in any form he chooses to se- ' lect.

Since there is no necessary inference of a sale, 1 cannot say that, with the evidence of controls usually exercised by employers, the Board could not rationally infer that the men were employees who collected the money for the papers and, as compensation for their services to the publishers, were allowed to keep the difference between the amount charged and the selling price.