Cement Transport, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 27, 1967162 N.L.R.B. 1261 (N.L.R.B. 1967) Copy Citation CEMENT TRANSPORT, INC. 1261 through no fault of his own but because at the time of the election lie was away from the plant in the normal course of his duties for the Employer. Although the Employer may have been remiss in not advising the Regional Director at an earlier date of the probable need for other election arrangements, consistent with the aforestated principle we make no attempt to assess the Employer's responsibility for the disenfranchisement of Danielson. As his vote could have affected the election results in this unit of only two eligible voters, we find, in the circumstances, that the election should have been resclieduled.3 Accordingly, we hereby sustain the objections in this regard, and we shall set aside the election and order a new one to be conducted. [The Board set aside the election conducted on September 19, 1966.] [Text of Direction of Second Election omitted from publication.] 4 3 See Bernard Gold and Jack Wa88erman, 54 NLRB 869, 55 NLRB 591. 4 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 30 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed . Excelsior Underwear Inc., 156 NLRB 1236. Cement Transport, Inc.' and General Drivers, Warehousemen & Helpers Local Union #89, affiliated with International Broth- erhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Petitioner . Case 9-RC-6856. January 27, 1967 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 ( c) of the National Labor Relations Act, as amended , a hearing was held before Hear- ing Officer Edward C. Verst on September 7, 8, and 9, 1966.2 The Hearing Officer's rulings made at the hearing are free from prejudi- cial error and are hereby affirmed. Subsequent to the hearing, the 1 The name of the Employer appears as amended at the hearing. 2 The petition , which was filed herein on May 27 , 1966, was dismissed by the Regional Director on June 17, 1966. Subsequent thereto, the Petitioner filed a Request for Review of the Regional Director 's decision with the Board. On August 2, 1966, the Board held that the appeal raised issues which could best be resolved on the basis of a record. Ac- cordingly , the Regional Director was directed to reinstate the petition and to issue a notice of hearing in this proceeding . A hearing was held and on September 9, 1966, the Regional Director , pursuant to Section 102.67 of the Board's Rules and Regulations , trans- ferred the case to the Board. 162 NLRB No. 117. 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petitioner and the Employer filed briefs with the National Labor Relations Board.3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. Upon.the entire record in this case, including the briefs filed by the parties, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert juris- diction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. 4. The Petitioner requests a unit consisting of all single owner- drivers and nonowner-drivers operating equipment under lease to the Employer at its plant in Kosmosdale, Kentucky. The Employer contends that all such persons are either independent contractors or employees of independent contractors, and that the petition should therefore be dismissed. The Employer is a Kentucky ' corporation which operates as a common carrier within the State of Kentucky under the authority of the Kentucky Department of Motor Transportation. The Employer also operates on an interstate basis as a contract carrier, and, as such, it is subject to the regulation and control of the Interstate Commerce Commission. It is engaged, primarily, in the business of hauling cement and mortar to points in Kentucky, Tennessee, Illinois, Indiana, and Ohio, which are within 180 miles of Kosmosdale, Kentucky. This transportation is by contract with Kosmos Portland Cement Company which has a plant in Kosmosdale. A small percent- age of the Employer's business is hauling salt for the Diamond Crystal Salt Company at Diamond's terminal in Louisville. All of the Em- ployer's over-the-road hauling is accomplished with tractors leased to it by the equipment owners. A separate lease is entered into with respect to each tractor, regardless of how many tractors the equipment owner may have leased to the Employer. The Employer leases approxi- mately 53 tractors from various individuals. The Employer maintains a shop on its premises which services and maintains the approximately 110 trailers which it owns. These shop employees, who do no work on the tractors, include mechanics, welders, tire changers, and yardmen. 3 The Employer ' s request that the Board hear oral argument in this case is hereby denied as the briefs and the transcript of the testimony and exhibits adequately present all the issues involved herein. CEMENT TRANSPORT, INC. 1263 They are represented by Local Union No. 370, United Cement, Lime and Gypsum Workers International Union, and are not sought by the Petitioner. The following are the various categories of owners4 and drivers of equipment utilized by the Employer : Single Owner-Drivers: These drivers, 22 in number, own and drive a single tractor unit which they lease to the Employer. Multiple Owner-Drivers : These drivers, 11 in number, own more than one tractor which they lease to the Employer. A multiple owner-driver normally drives one of his own units and his remain- ing units are operated by nonowner-drivers hired by the multiple owner-drivers. Owner-Nondrivers : There are 10 owners of equipment who lease tractors to the Employer, but who themselves do no driving. The Petitioner does not seek to include these individuals in the unit. Nonowner-Drivers: These' drivers, 14 in number, drive leased equipment for the equipment owners. The Employer is authorized to operate as an interstate motor vehicle common carrier under Certificates of Public Convenience and Necessity granted by the Interstate Commerce Commission. In its operations, the Employer is subject to the Interstate Commerce Act and to the regulations promulgated by the ICC. In order to secure and retain its "certificates," the Employer under these regulations must show at all times that it is fit, willing, and able properly to perform its services in conformity with the law. The regulations con- tain extensive provisions relating to' the qualifications of drivers, driving of motor vehicles, parts and accessories necessary for safe operations, reporting of accidents, hours of service of drivers, and inspection and maintenance of equipment. The regulations further impose responsibility on the carrier to make certain that the regu- lations are observed by its drivers. Under the regulations a carrier is permitted to augment its equipment by means of leases. However, the regulations require the carrier to have "full direction and control of such [leased] vehicles" and to be "fully responsible for the opera- tion thereof, in accordance with applicable law and regulations, as if the carrier was the owner of such vehicles." The relationship between the Employer and the equipment owners and the nonowner-drivers is based on the terms of the "Lease Agree- ment." The term of the lease is 1 year, subject to termination by either party upon 30 days' notice. The lease provides that the tractor ',shall be devoted exclusively to the Company's business of transpor- tation and as much and often as may be reasonably required by such 4 Single owner-drivers and multiple owner-drivers are sometimes referred to herein collectively as owner-drivers. All owners of leased equipment, i.e , single owner-drivers, multiple owner-drivers, and owner-nondrivers are referred to herein as equipment owners. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD business," and that it shall be operated "under direct supervision and control" of the Employer. The lease also requires that the trac- tors meet the requirements of the ICC Rules and Regulations and those of State and Federal laws. Under the lease, the equipment owner is further obligated to fur- nish for the tractor a "full complement of competent drivers"; to pay such drivers "compensations of every character," to withhold taxes and social security, to cover them with respect to workmen's compensation and "charges, benefits, claims, and liabilities of every kind" arising from the relationship ; to pay all expenses of the oper- ation of the tractor; to provide identification signs on the tractor, disclosing the Employer's name, certificate number, and address, and such State Commission stickers as may be required; to maintain logs, one copy of which is to be delivered to the Employer; and to limit the driver in the number of hours of work during any 24-hour period. The equipment owner receives payment from the Employer for the loads carried pursuant to a schedule attached to the lease, payment being based on the amount of freight carried and the mile- age covered according to zones. The drivers report to the Employer's dispatcher for the various hauls. They "sign in" when they desire to make a haul. While there is nothing in the lease agreement relating to discipline of the owners or their drivers, there is a rule in effect that if a driver "signs in" but refuses to take a load, he will not be permitted to drive for the Employer for a period of 3 days. The equipment owners hire their own drivers, but the drivers are required to submit an application for employment to the Employer. A report of vehicle inspection of the leased tractors is made monthly by the Employer's safety clerk, as required by ICC regulations. Tractor maintenance is the responsi- bility of the equipment owner, and a maintenance report is sub- mitted to the Employer weekly on a form supplied by the Employer. The bills of lading supplied to the drivers contain instructions as to date, time, and place of delivery. The Employer provides fuel facili- ties at the plant for the benefit of the drivers, and furnishes the fuel on a credit basis, deducting the amount thereof from the pay check, which is issued weekly. It also pays for and keeps in force public liability insurance and property damage insurance. Petitioner, relying particularly on the Board's recent decision in Indiana Refrigerator Lines, Inc.,5 contends that the single owner- drivers and the nonowner-drivers are employees of the Employer within the meaning of the Act.6 The Employer contends that such 5 157 NLRB 539. 6 The Petitioner's uncontested position as regards the multiple owner-drivers is that the Board's finding in Indiana Refrigerator Lanes is controlling here, and that these individuals are supervisors within the meaning of the Act. CEMENT TRANSPORT, INC. 1265 drivers are either independent contractors or employees of inde- pendent contractors. It takes the position that Indiana Refrigerator, Lines is inapplicable because it is distinguishable on the facts. For the reasons discussed hereinafter, we agree with the Petitioner's position. In making determinations as to whether an individual is an inde- pendent contractor or employee, the, Board has frequently stated that it will apply the common law right-of-control test. Under this test, the employer-employee relationship exists when the employer reserves the right to control not only the ends to be achieved, but also the means to be used in reaching such ends. The Board has made it clear that the application of the test is not a "perfunctory exer- cise" but demands a balancing of all the evidence relevant to the relationship.' There are, admittedly, a number of factors which would appear to militate in favor of a finding that the equipment owners are inde- pendent contractors. Thus, for example, the leases provide that the equipment owners shall pay the compensation of the nonowner- drivers; the owners bear the cost of operation of the tractors; the owners are responsible for making payroll deductions on behalf of the nonowner-drivers for social security, income taxes, and unem- ployment compensation; and the Employer permits the drivers dis- cretion in the selection of routes. We find, however, that these factors are outweighed by others which establish extensive Employer control over the drivers and require the conclusion that they are employees of the Employer. We rely particularly on the following: (1) The overall effect of the ICC regulations, requiring comprehensive Employer control over the operations of the equipment owners, the drivers, and the leased equipment; (2) the leases providing for the Employer's exclusive use of the leased equipment, requiring the equipment owners to per- form all the work which the Employer may require, and giving the Employer control over the hauling operations; (3) the right of either party to terminate the leases without cause on 30 days notice; (4) the fact that payments made to the equipment owners for haul- ing the Employer's freight are unilaterally set by the Employer; (5) the fact that the drivers are required to submit a maintenance report and a drivers' log to the Employer; (6) the fact that each tractor is required to exhibit the Employer's name and identification number; (7) the fact that if a driver "signs in" but refuses to take a load, he is disciplined. by not being allowed to drive for the 7 National Freight, Inc., Federal Freight, Inc., and Sun Transportation, Inc., 153 NLRB 1536, 1538-39. 264-04767-vol. 162-81 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer for a period of 3 days; and (8) the fact that once the driver "signs in" he is bound by the bill of lading furnished to him by the Employer as to the date, time, and place of delivery.8 It is true, as the Employer points out, that the equipment owners have some opportunity to increase their profits .9 Thus, for example, the owner may save money on the purchase of the tractor and mini- mize maintenance costs; he may haul such items as tobacco and fer- tilizer for other trucking companies when the Employer's business is slack; and he may engage in other business activity on his own behalf. But, as we have known, the Employer unilaterally sets the amounts the equipment owners receive from the Employer for haul- ing the Employer's freight. The fact that the owners may earn additional money through other business activity, although a factor to be considered, does not preclude an employee relationship with the Employer.10 In view of the foregoing, and on the basis of the entire record, we find that the single owner-drivers and the nonowner-drivers are employees of the Employer within the meaning of the Act 11 Although we also find that the multiple owner-drivers are not independent contractors, we conclude that they are supervisors within the meaning of the Act. The record shows that the multiple owner-drivers, as in Indiana Refrigerator Lines, supra, hire, fire, discipline, assign, transfer, and otherwise responsibly direct the drivers of their equipment. Further, it is apparent that this author- ity is exercised not only for the purpose of protecting the owner's equipment, but also in the interest of the Employer and as an inte- gral part of the Employer's operations. We shall therefore exclude them from the unit.12 Accordingly, and as the Petitioner does not seek to represent the owner-nondrivers and no other issues have been presented concern- ing the scope of the unit, we find that the following employees con- 8 Indiana Refrigerator Lines, supra, and cases there cited in footnote 3. 9 Smith's Van & Transport Company, Inc., and Smith 's Transfer and Storage Company, Inc., 126 NLRB 1059. 10 See Indiana Refrigerator Lanes, Inc., supra. "We find no merit in the Employer 's contention that the Board is foreclosed from deciding here that the drivers of leased equipment are employees , in view of the decision in Cement Transport, Inc., 111 NLRB 175. In that proceeding , which involved the same parties and the same plant as here, the Board held that the equipment owners were in- dependent contractors . The Board has held that a prior determination as to the appropriate bargaining unit does not preclude a redetermination of the unit appropriate for the em- ployees when a later petition is filed. Thaihimer Brothers , Incorporated, 93 NLRB 726, 727. The earlier decision, in our opinion , took an unduly limited view of certain aspects of the relationship between the Employer and the drivers of leased equipment , particularly as to the impact of the ICC regulations on the extent of the Employer 's control over them. In view of the totality of the facts here, particularly in the light of the recent decision in the Indiana Refrigerator Lines case, supra, we conclude that these drivers are employees. 12 For the reasons set forth in Indiana Refrigerator Lines, supra , footnote 5, Member Brown would find that the multiple owner-drivers are not supervisors . However, he notes that the Union has not sought their inclusion in the unit herein. NORTH AMERICAN AVIATION, INC. 1267 stitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act : All single owner- drivers and nonowner-drivers employed by the Employer at its plant located at Kosmosdale, Kentucky, but excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.]13 is An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 9 within 7 days after the date of this Decision and Direction of Election . The Regional Director shall make the list available to all parties to the election . No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed . Excelsior Underwear Inc. and Saluda Knitting Inc., 156 NLRB 1236. North American Aviation , Inc. and International Union, United Welders of America, Independent , Petitioner. Case 16-RC- 3973. January 27,1967 DECISION ON REVIEW AND ORDER On October 18, 1965, the Regional Director for Region 16 issued his Decision and Direction of Election in the above-entitled proceed- ing.' Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series .8, as amended, the Employer and the Intervenor respectively filed timely requests for review of the Regional Director's Decision, on the ground, inter alia, that substantial questions of fact and law were raised by the Regional Director's direction of a craft-severance election. There- after, Petitioner filed a statement in opposition to the requests for review. The Board, by order dated December 9, 1965, granted review and stayed the election. Subsequently, the Employer filed a supple- mental brief. The Board has considered the entire record in this case with respect to the Regional Director's determination under review, and finds, contrary to the Regional Director, and for the reasons herein- after stated, that the petition should be dismissed since it seeks a group of employees which, in the circumstances, does not constitute a unit appropriate for a craft-severance election. The Employer is engaged in manufacture, research, and design activities at its aerospace plants throughout the United States. The ' At the hearing which preceded the Regional Director 's Decision , the International Union, United Automobile , Aerospace & Agricultural Implement Workers of America, and its Local 952, referred to herein as Intervenor , was permitted to intervene on the basis of its current contract covering the Employer 's production and maintenance employees. 162 NLRB No. 111. Copy with citationCopy as parenthetical citation