Dear MCMA Members,
I was honored to serve as President of MCMA the past few months. I have followed in the footsteps of many talented and sound Circulation leaders that humbly served assisting in the advancement of circulation to where it stands today. I fully intend to stick with this history and continue to serve as Board Chairman the next year and assist with the MCMA Board for many years to come.
During the past few years, we have continued to build on our relationship with other organizations with similar missions as our own. We have partnered with CSCMA and the Media 360 Alliance the past few years to bring you a quality conference in St. Louis, the Mega Summit Conference. We will continue to support this conference in the future with the 2016 Mega Conference scheduled for April 17-18, 2016 in St. Louis, MO.
We have recently updated our MCMA website. You can visit this site at www.midwestcirculation.com. From this site you will be able to update your membership, share ideas and visit vendors that support newspapers and in particular, MCMA. Please take a moment to visit this site and if you have any ideas on how to make your visit better to this site, do not hesitate to contact one of our board members.
Coming in the summer of 2015, we will be holding a few one day, FREE, mini-circulation conferences throughout the eight state region (Missouri, Kansas, Nebraska, Oklahoma, Arkansas, New Mexica, Colorado and Wyoming) for MCMA members only. The first one will be held in August in Salina, Kansas (dates and times to come).
The sharing of ideas and what has been successful for other newspapers is one of the main reasons why you should be a part of MCMA today and in the future. I have taken many ideas away from our conferences that have more than paid for the trip. I hope you find being a part of MCMA as beneficial to your newspaper as I have found it to be to mine.
MCMA Chairman of the Board
On May 7, 2013, for the second time in a 6-month period, the U.S. Court of Appeals for the D.C. Circuit has reversed a decision of the NLRB because the agency’s practices ignore the First Amendment of the Constitution of the United States.
The notice-posting rule would require nearly 6 million Employers to post a paper notice on their properties and websites, serving as a virtual roadmap on “how to unionize” and declaring its an unfair labor practice for an employer to fail to post the notice.
The Court of Appeals totally vacated the Board’s notice-posting rule, going right to §8(c) of the National Labor Relations Act because this law, passed in 1947,) was implemented because Congress believed the NLRB was regulating employers’ speech too restrictively.The Court ruled that forcing Employers to post the notice is compelled speech in violation of the First Amendment of the Constitution of the United States.
The Court further explained that §8(c) necessarily protects the right of employers not to speak. “That is why, for example, a company official giving a non-coercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union.”
The Court also summarily struck down the part of the rule that allowed the tolling of the statute of limitations,noting that there is nothing in the legislative history of the 1947 Amendments justifying authority for the rule. In this writer’s opinion, the NLRB ignores and harbors hostility toward the First Amendment rights of Employers under §8(c) of the National Labor Relations Act. The Court with this decision proves once again that the First Amendment rights of employers are paramount.
On December 18, 2012, the U.S. Court of Appeals for the D.C. Circuit granted Santa Barbara News-Press’ Petition for Review and vacated an entire adverse decision of the National Labor Relations Board that had determined the discharge of eight employees, among other allegations, violated the National Labor Relations Act. The Court of Appeals reversed, finding the discharges to be lawful.
This case began in 2006. The newsroom employees at Santa Barbara News-Press had engaged the Teamsters in an effort to take over the content of the newspaper. Certain employees hung a sign over the freeway urging the public to “Cancel your newspaper today;” other employees continually wrote biased articles. Santa Barbara News-Press discharged all of them.
The employees and the NLRB categorized the dispute as one of “autonomy” and “journalism ethics,” but the court chastised both, stating, “The power to so characterize them is not a power to conjure editorial control out of the Publisher’s hands.” The court made clear, “The First Amendment affords a publisher, not a reporter, absolute authority to shape a newspaper’s content.”
The court did not buy the NLRB argument that even if the employees’ goal of content control is unprotected, the NLRB decision should stand because the employees also wanted to negotiate a contract over wages, etc.
In a stinging rebuke to the NLRB, the D.C. Circuit ruled, “The Board’s analysis was tainted by its mistaken belief that employees had a statutorily protected right to engage in collective action” to control the content of the Santa Barbara News-Press. Editor’s note: The Zinser Law Firm represented Santa Barbara News-Press.
I would like to thank each of you that took the time to fill out the evaluation form towards the end of the Mega Summit - it is with this feedback that we are able to improve upon the event.
All the Mega Summit presentations are now available on the 360 Media Alliance website and I have also included the link below:
Last note, if you aren't a member of the 360 Media Alliance on either LinkedIn or the website, we invite you to visit either or both of the links below today and simply join - no cost!
John A. Newby
360 Media Alliance
In the past 12 months, I have personally tried 12 cases involving the issue of whether a newspaper carrier is an employee or an independent contractor. This column will share 10 of the most common issues I discovered. Contracting before Delivery – in several situations, Circulation Management allowed a newspaper contractor to start delivery of a home delivery route before the contractor actually signed a written Independent Contractor Agreement. Just imagine the confusion and finger pointing if the independent contractor newspaper carrier has a serious automobile accident while delivering without a contract.
Separate Contracts for Separate Routes – It is considered evidence of independent contractor status if a newspaper carrier has the right to contract for more than one delivery area. The best practice is for the independent contractor to sign a separate Independent Contractor Agreement for each individual route or delivery area. In my preparation, I discovered that Circulation Management was missing this opportunity.
Contract Compliments Course of Dealing – One of things discovered in my preparation is that the written agreement contained contract language that simply did not apply to the particular contractor. It would have been more independent contractor-friendly if the written agreement reflected the reality of the relationship.
Contractor Receives Copy of Contract – From an independent contractor point of view, it is absolutely the best practice to give the independent contractor newspaper carrier a copy of the written agreement after it is negotiated. I learned that one particular manager did not routinely give contractors copies of the agreement.
Substitutes –If the contracted carrier does not want to personally perform the services, the independent contractor may use substitutes without restriction while employees may not use substitutes. The contracted carrier directly pays the substitute. If, for any reason, the contracted carrier is unable or unwilling to deliver on a particular day, the contract obligates the contractor to find a substitute. What I discovered while preparing for one case is that the particular manager was not following the contract and obligating the contracted carrier to find a substitute.
Contract Termination Provision –What I learned in preparation is that when a contractor terminated the agreement, the Publishing Company was not requiring the contractor to do so in writing with 30 days notice, as required by the Independent Contractor Agreement. Management was religious in writing letters when it terminated a contract. However, contractors were given a pass.
Recruitment Ads – It is very common for a newspaper to run ads in its own publication, trying to recruit individuals to be independent contractor newspaper carriers. The text of this ad can be very helpful or hurtful. What I discovered in preparation is that a particular newspaper was discovering an extremely poorly drafted ad. The newspaper has now changed its advertising practices.
Contractor Compensation – The written agreement should reflect all of the compensation being paid to the contractor. I discovered in one case that the independent contractor was paid an additional contract fee if the contractor bagged the newspapers with poly-bags, with an advertiser’s imprint on them. However, the written agreement did not reflect that additional contract fee. While the fee was paid, the contract was silent. Start With a Blank Slate – One of the key factors of independent contractor status is the right of the contractor to negotiate the agreement and the fees/rates contained therein. Often, a contractor will give testimony that he did not have the right to negotiate, stating that when he sat down with a Manager, all of the blank spaces were already typed in.
Party to Deception – In preparing one case, the contractor was the party that terminated the Independent Contractor Agreement. I was inquiring of the management witness the reason for the termination. The manager then sheepishly said that the contracted carrier, who had a full-time job with a manufacturing company, had lost the full-time job. The contractor was planning to file for unemployment compensation. The contracted carrier wanted to be able to complete unemployment papers saying that he had no work of any kind. The contractor asked the manager to have his spouse sign a new contract. The same individual is going to be delivering the route. This is a problem. The newspaper was complicit in deceiving the State Department of Unemployment.
Coworker.org is a recently launched website that allows employees to “start, run, and win” campaigns to change their workplaces. Employees can create online petitions through this website. Currently, coworker.org has one active campaign against Walmart, which seeks the reinstatement of an employee who was allegedly fired for speaking out against having to work on Black Friday. Employers should pay attention to coworker.org to see if their employees are complaining about their workplaces. Note: retaliation against any employees who post on coworker.org “may” be illegal under the National Labor Relations Act, depending upon the post. On the other hand, it may be “cause” for discharge if the post goes beyond complaining about wages, hours, and working conditions.
The Audit Bureau of Circulations is now the Alliance for Audited Media, an alliance for informed decisions and for 360 brand views. An alliance that knows smart media is audited media. It's all about industry professionals coming together to bring accountability and confidence to the new world of media.
Midwest Circulation Management Association is proud to announce Daphne Buss, Judy and Dan Bates are recipients of the Carrier of the Year Award. These independent carriers have exceeded their contractual obligations to include extraordinary service and growth of their delivery routes.
Pictured from left to right are Wesley Bales of the Sun, Jonesboro, AR., Louise Kolos, Instructor and Chris Stluka, Customer Service Manager. Wesley attended the Mechanism Seminar, offered by Kaspar Sho-Rack, at the 500,000 square foot facility in Shiner, Texas. Kaspar Sho-Rack invites those interested in attending a seminar to contact their Sales and Marketing Consultant.