L. C. Sinor and Standard Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1967

168 N.L.R.B. 467 (N.L.R.B. 1967)

L. C. SINOR & STANDARD INSUSTRIES 467
L. C. Sinor , An Individual d/b/a L . C. Sinor and
Standard Industries , Inc. (Joint Venture),' and
Oklahoma State Subcommittee of National Joint
Heavy and Highway Committee , Petitioner. Case
16-RC-4613
November 27,1967
DECISION AND DIRECTION OF
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Paul Frank
Cleveland of the National Labor Relations Board.
Petitioner and Employer have filed briefs, which
have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization2 involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner requests a unit consisting of all
truckdrivers hauling aggregate, asphalt materials,
and sand from Standard Industries, Inc., aggregate
quarry operations and sand plant operations at the
Tulsa, Oklahoma, operation, and including
truckdrivers working for Sneed and Terry under the
L. C. Sinor contract.3 In support of its requested
unit, the Petitioner contends that Sinor and Stan-
dard are engaged in a joint venture and that both
should be regarded as the Employer of the
truckdrivers. In reply, Employer Sinor argues that
approximately 40 of the drivers are independent
contractors and therefore not his employees and
that he is not engaged in a joint venture with Stan-
dard. Standard agrees with Sinor that ii is not en-
gaged in a joint venture and further contends that it
has no truckdrivers.
The Employer, Standard, is a Delaware corpora-
tion with its principal office and plant in Tulsa,
Oklahoma. It is engaged in general construction and
the sale of building materials. The Employer, Sinor,
is an individual engaged in truck hauling with his
principal office at Pryor, Oklahoma. There is no in-
terlocking ownership between the two Employers,
nor do they share in each other's profits.
Sinor owns four tandem-type trucks which are
operated by his employees. The owner-drivers,
about 40 in number, operate "bobtails." The owner-
drivers and Sinor's employees do not compete for
loads. Sinor's operations insofar as they affect the
owner-drivers are as follows.
Sinor maintains a list of the owner-drivers. When
Standard requires the service of a truck, it notifies
Sinor's dispatching office. Sinor then dispatches the
owner-driver at the top of the list to Standard's
quarries to pick up the material to be hauled. If the
owner-driver at the top of the list is not available,
his name is dropped to the bottom of the list and the
next owner-driver is dispatched to the quarries. At
the quarries, Standard has a scaleman who loads the
material and gives the owner-driver its destination.
The owner-driver then delivers the material using
whatever route he chooses. Owner-drivers testified
that they could report for work when they wished
and could leave when they wished. They also
testified that they could, and did, haul for others.
The record also shows that the owner-drivers
purchase and maintain their own trucks without
assistance from Sinor, obtain their own hauling per-
mit from the Oklahoma Corporation Commission,
and have their own names on their trucks. If the
owner-drivers hire other drivers, they pay the
driver themselves and make all other deductions
and payments normally required of an employer.
Sinor has no power to discharge the owner-drivers,
but may discontinue their services. Sinor has
discontinued one owner-driver because he refused
to sign a hauling contract. Owner-drivers pay for-
their own insurance and are required to furnish
Sinor with a certificate that insurance has been ob-
tained. The owner-drivers also pay for their own
gasoline, oil, and other supplies necessary for the
operation and maintenance of their trucks. One
owner-driver, Leonard, testified that he was told by
Sinor's dispatcher that he would have to buy his
gasoline from Sinor "or else." Leonard also
testified that Sinor had required him to purchase a
tarp to cover the loads in his truck. Other owner-
The name of the Employer appears in the caption as corrected at the
hearing
L The Employer refused to stipulate that the Petitioner is a labor or-
ganization However, the record shows that the Petitioner is an organiza-
tion existing for the purpose of representing employees of various em-
ployers concerning wages, hours, and conditions of employment, and that
168 NLRB No. 67
it has contractual relations with a number of employers Accordingly, we
find that the Petitioner is a labor organization within the meaning of Sec-
tion 2(5) of the Act Pervel Industries, Inc , 163 NLRB 1037
1 The record shows that Sneed and Terry is a wholly owned subsidiary
of Standard Industries and has no truckdrivers working under Smor's con-
tract
336-845 0 - 70 - 31
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arivers testified, however, that they were free to
buy their gasoline and other supplies wherever they
wished.
The contract between Sinor and Standard covers
the hauling of all of Standard's material to jobs
which require 2,000 tons of material or less. It
further provides, however, that Standard may sell
material to purchasers who pick it up in their trucks
at Standard's plants and quarries. It also provides
that Sinor shall haul to destinations designated by
Standard and in accordance with Standard's
delivery schedule. It also provides that all person-
nel doing this work shall be "under Contractor's ex-
clusive control, orders and directions and shall be
employed and paid by the Contractor and for all
purposes shall be the employees of Contractor and
not Standard." It also provides that if any employee
of Sinor should fail to cooperate or should interfere
with the work of other contractors, subcontractors,
or owners, Standard could require Sinor to remove
the employee from hauling to or working with such
contractor, subcontractor, or owner.
Sinor also had written contracts with each of the
owner-drivers. This contract refers to the owner-
drivers as "independent contractors."
The evidence set forth above is insufficient to
establish a joint venture or joint relationship
between Sinor and Standard. There is no common
ownership or control of the two enterprises by an
individual or group of individuals, and the only
evidence that Standard exercises any control over
the wages, hours, or working conditions of the
owner-drivers is its supplying of the destination to
which loads are to be hauled. The provisions of the
contract between Sinor and Standard do not confer
any control over the owner-drivers and, in fact,
leaves to Sinor the task of excerising control over
the drivers. We therefore find that Sinor and Stan-
dard are not engaged in a joint venture and are not
joint employers of the owner-drivers.
a As noted above, the testimony of one owner-drivel, denied by Smor,
that he was required to buy gasoline from Smor, is not supported by the
testimony of other owner-drivers
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 16 within 7 days after the date of this Decision and
We further find that the record will not support a
finding that the owner-drivers are employees of
Sinor. The owner-drivers are free to work or not
work for Sinor as they see fit, free to perform the
hauling for which they are hired in the manner they
deem best, and are free to, and do, haul for other en-
terprises. The owner-drivers are completely
responsible for the purchase, maintenance, and
repair of their trucks,' for the purchase of supplies
necessary to operate the truck, for obtaining
permits to allow their truck to be used for hauling,
for the payment of taxes incidental to their hauling
operations, and for the fixing and payment of the
wages of any drivers they may choose to hire. It is
clear to us that, under these circumstances, Sinor
has little control over the means by which the
owner-drivers are to accomplish the hauling of
material and thus does not satisfy the common law
"right of control" test we have utilized in determin-
ing the status of indivuals who are alleged to be em-
ployees rather than independent contractors. We
shall, therefore, not include the owner-drivers in the
appropriate unit.
At the hearing the Petitioner stated that if the
Board did not find the owner-drivers to be em-
ployees, it would accept a unit consisting of the four
employees driving the tandem trucks owned by
Sinor. Accordingly, we find that the following em-
ployees constitute an appropriate unit for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act:
All tandem truckdrivers employed by L. C. Sinor
engaged in hauling for Standard Industries, Inc., at
its operations in Tulsa, Oklahoma; excluding office
personnel , guards, watchmen, and supervisors, as
defined in the Act.
[Direction of Election 5 omitted from publica-
tion.]
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, 156 NLRB 1236