National Van Lines

National Labor Relations Board - Board Decisions

May 25, 1959

123 N.L.R.B. 1272 (N.L.R.B. 1959)

1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused the February offers because they were making more at the jobs they then
had. Palmer testified he did so because he did not want to go "in the red." Since
the issue of remedy was not before us, the matter was neither tried nor considered
from the point of view of whether the refusal on the part of any of them to accept
this offer was without excuse. This, too, is an issue which is appropriately left to
the stage of compliance.50
A broad injunctive order, in the language of Section 8 (a) (1) of the Act, is here
required because of the character of the violations found. N.L.R.B. v. Cheney Cali-
fornia Lumber Company, 327 U.S. 385.
Upon the findings made and the entire record, there are hereby made the
following:
CONCLUSIONS OF LAW
1. Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployees because of their leadership in the Union, thereby discouraging membership
in a labor organization, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
3. By such discrimination and by threatening employees, directly and through
indirection, with loss of employment for engaging in activity on behalf of such
Union, and by interrogating employees concerning their own and other employees'
union affiliation, activity, and sympathy, Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of the
Act, thereby engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a) (3) of the Act by discharging Berford F. Harris, or within the meaning
of Section 8(a)(1) of the Act in any respects alleged in the complaint but not
found herein.
[Recommendations omitted from publication.]
co Ibtid
National Van Lines and Van & Storage Drivers Local Union
No. 389, I.B.T.C.W. & H. of A. Case No. 21-CA-3317. May 05,
1959
DECISION AND ORDER
On March 17, 1959, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report, and a supporting brief.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and
Members Bean and Fanning].
123 NLRB No. 157.
NATIONAL VAN LINES 1273
case , and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions.
On April 16, 1957, the Board issued a Decision and Direction of
Election in Case No. 21-RC-4426, in which it found, contrary to the
contention of the Respondent, that the Respondent's contract drivers
were employees within the meaning of the Act, and not independent
contractors 2 On June 6, 1958, the Board issued a Supplemental De-
cision and Certification of Representatives in that case, in which it
sustained the challenges to six ballots cast in the representation elec-
tion, and certified the Union as the bargaining agent for the Respond-
ent's contract drivers.' On that same date, the Union requested that
the Respondent bargain, but by answer on July 17, 1958, the Respond-
ent refused to bargain on the ground that the Board's decision in the
representation case was erroneous as a matter of law, and that in any
event there were changed circumstances which rendered that decision
inapplicable. The Trial Examiner found that such refusal to bargain
was a violation of Section 8(a) (5) of the Act.
The Respondent contends that: (1) The Trial Examiner erred by
refusing to admit into evidence and review the entire record of the
proceedings in the prior representation case; (2) the Trial Examiner
erred by placing the burden of disproving the allegations of the
complaint upon the Respondent; and (3) the Respondent has not vio-
lated Section 8(a) (5) of the Act by its refusal to bargain, because
the contract drivers involved are independent contractors, and not
employees , within the meaning of Section 2(3) of the Act.'
With respect to contention (1), the Board has held, in a similar
situation where it found alleged independent contractors to be emn
ployees in a prior representation case, that the Trial Examiner in the
subsequent refusal-to-bargain case with respect to such employees
properly refused to admit into evidence or review the record in the
prior representation case, because the Trial Examiner was bound by
the Board's finding of employee status in the representation case, and
could only consider evidence which might show a subsequent change in
such status.' As there stated, in the absence of evidence of changes
in the facts surrounding a prior unit determination, or the presenta-
tion of evidence unavailable to a respondent in the prior representa-
tion proceeding, the Board, with the approval of the courts, has uni-
formly refused to redetermine such issues in an unfair labor practice
2 National Van Lines, 117 NLRB 1213.
3 National Van Lines, 120 NLRB 1343.
4 As they have already been considered and rejected in the prior representation case, we
shall not consider here the Respondent ' s further contentions that ( 1) no unit appropriate
for purposes of collective bargaining exists in the Board's Twenty-first Region, and
(2) the Regional Director's refusal to open and count the six challenged ballots cast in
the election In the representation case was an abuse of discretion which resulted in a non-
representative vote in the election.
5 United Insurance Company, 122 NLRB 911, Intermediate Report, section B 2.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proceedings Moreover, contrary to the contention of the Respondent,
Section 9(d) of the Act does not require a Trial Examiner in an
unfair labor practice case to admit into evidence and review a prior
representation case, but only requires that upon petition for court
enforcement or review of the unfair labor practice case, the record in
the representation case be included as part of the entire record which
must be filed in the case.7
Contrary to contention (2), the Trial Examiner did not place the
burden of disproving the allegations of the complaint upon the Re-
spondent. In the similar United Insurance case, supra, the Board
held that once the General Counsel had shown the certification of the
union in the representation case, and a subsequent request and refusal
to bargain, the General Counsel had established a prima facie case of
a violation of Section 8(a) (5) ; and that even assuming that there was
a further burden on the General Counsel to show the employee status
of the alleged independent contractors, that burden was met by the
Board's finding of employee status in the prior representation case,
and the well-established legal principle that a state of affairs once
shown to exist is presumed to continue until the contrary is shown.'
In accord with that holding, the Trial Examiner here properly found
that : "The Board having found in its decision [in the representation
case] that the contract drivers were employees, the burden was upon
the Respondent in this proceeding to establish that the circumstances
upon which that decision was based no longer existed." Such finding
did not place any burden of disproving the allegations of the com-
plaint upon the Respondent, but only placed upon the Respondent the
burden of rebutting the presumption which had been established that
the contract drivers were still in. an employee status. The General
Counsel having established this presumption and the remainder of his
prima facie case, the Trial Examiner properly placed the burden of
going forward, and not the burden of proof, upon. the Respondent.
With respect to contention (3), we find, as the Trial Examiner did,
that the Respondent has failed to establish that the circumstances
upon which the employee status finding in the representation case was
based no longer exist. The circumstances upon which that finding
was based included the contract then in effect between the contract
drivers and the Respondent, the manual of rules and regulations there-
under, the rules and regulations in supplementary bulletins, and the
B Ibid ., and cases there cited.
7 Thus, Section 9 ( d) provides : "Whenever an order of the Board made pursuant to
section 10 ( c) is based in whole or in part upon facts certified following an investigation
pursuant to subsection (c) of this section and there is a petition for the enforcement or
review of such order , such certification and the record of such investigation shall be in-
cluded in the transcript of the entire record required to be filed tinder section 10(e) or
10(f), and thereupon the decree of the court enforcing , modifying , or setting aside in
whole or in part the order of the Board shall be made and entered upon the pleadings,
testimony , and proceedings set forth in such transcript."
8Ibid., Intermediate Report , section B 3, and cases cited.
• NATIONAL VAN LINES 1275
practices and policies which were otherwise in effect. The Respondent
did put into effect a new contract with its contract drivers, which
contract was executed by all but 3 of the present 123 contract drivers
over a period of several months commencing in June 1957. However,
the new contract is basically the same as the old contract in all ma-
terial respects. The only contract changes which might have any pos-
sible significance are that (1) there is no specific requirement in the
new contract that the driver must comply with all rules and regula-
tions which the Respondent may promulgate, and (2) the new con-
tract states that it is the intent of the parties to create an independent-
contractor relationship. Also, in a covering letter which was sent
to the drivers with the new contract, the. Respondent stated that the
manual of rules and regulations issued under the old contract was
"officially rescinded." With respect to the purported rescission of the
contract provision regarding rules and regulations, and the rules and
regulations themselves, we note that: (1) The new contract itself pro-
vides that "Contractor will comply with the practices and proecdures
of Carrier in conducting all business under this agreement . . .,"
which appears to be only a less explicit "rules and regulations"
provision; (2) the covering letter states that "The provisions of the
revised contract do not change the actual practices and procedures now
followed by the Company and the contract drivers in their relation-
ship with each other"; and (3) the covering letter also states that "An
informational guide is being compiled in this office and will be trans-
mitted to you as soon as it is completed." In these circumstances, we
conclude that the new contract, like the old, contains a "rules and.
regulations" provision, and that while the old manual of rules and
regulations was "officially rescinded," the practices and procedures
established thereby were to remain in effect until a new manual de-
scribed as an "informational guide" could be compiled.' With respect
to the new contract's statement that it is the intent of the parties to
create an independent-contractor relationship, we note only that in
the very same section of the contract there is the further statement
that " . . . Carrier [Respondent] shall at all times have sole direction
of Carrier's services to the public." Finally, we note that O. J. Hul-
sey, a Respondent witness who the Respondent contends is a contract
driver within the bargaining unit, testified that there has been no
actual change in his relationship with the Respondent since he signed
the new contract, other than the usual increase in the percentage of
his compensation when he purchased his own trailer.10 Accordingly,
9 There is no evidence in the record that such an " informational guide" was ever com-
piled in the 1I/• years after the new contract was executed.
10 However , as the record indicates that Hulsey 's chief occupation is that of running a
travel agency which he owns, and that for the most part he employs other persons to
perform the hauling services for the Respondent , having made only three or four such
trips himself during the last 2 years , we do not make any definitive finding that Hulsey is
a contract driver within the bargaining unit.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find that : There has been insufficient change in the relationship
between the contract drivers and the Respondent to affect the em-
ployee status previously found; the contract drivers are therefore still
employees within the meaning of the Act; and therefore the Respond-
ent's refusal to bargain with the Union as the certified representative
of such employees constitutes a violation of Section 8(a) (5) of the
Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that National Van Lines, its agents,
officers, successors, and assigns, shall:
1. Cease and desist fr om :
(a) Refusing to bargain with Van & Storage Drivers Local Union
No. 389, I.B.T.C.W. & H. of A., as the exclusive representative of its
employees in the unit found appropriate herein.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist Van & Storage
Drivers Local Union No 389, I.B.T.C.W. & H. of A., or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid and protection, or
to refrain from engaging in such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the
exclusive representative of the employees in the appropriate unit, and
if an understanding is reached embody such understanding in a
signed agreement.
(b) Post at all its operations where employees in the appropriate
unit are employed, and mail to each employee in the unit, copies of
the notice attached to the Intermediate Report marked "Appendix." 11
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by Respond-
ent's representative, be posted by it immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter in all
ll This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
NATIONAL VAN LINES 1277
places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director in writing, within ten (10),
days from the date of this Order, what steps it has taken to comply;
herewith.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Van & Storage Drivers Local Union No. 389,
I.B.T.C.W. & H. of A., herein called the Union, the General Counsel of the National
Labor Relations Board issued his complaint dated December 9, 1958, against Na-
tional Van Lines, herein called the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and ( 5) and Section 2(6) and ( 7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act.
In respect to unfair labor practices the complaint alleges in substance that the
Respondent has refused to bargain with the Union, the certified exclusive representa-
tive of certain employees in an appropriate unit.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
in Los Angeles, California, on February 10, 1959. All parties were represented
by counsel , participated in the hearing , and were afforded opportunity to examine
and cross -examine witnesses , and to introduce evidence relevant to the issue . Briefs.
have been received from counsel for the General Counsel and counsel for the:
Respondent.
Upon the basis of the entire record in the case and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Illinois corporation engaged in the transportation of house-
hold goods and other similar commodities as a certified common carrier operating
in the various States of the United States. During the fiscal year ending November
30, 1958, the Respondent shipped goods to or furnished services having a value in
excess of $50,000 at points outside the State of California . The Respondent con-
cedes and I find that it is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
II. THE ORGANIZATION INVOLVED
As the Respondent concedes , the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On June 6, 1958, the National Labor Relations Board, herein called the Board,
certified the Union as the exclusive representative of all lease and owner operators.
(otherwise known as contract drivers) employed by the Respondent, excluding all
office clerical employees, guards, watchmen, professional employees, and supervisors,
as defined in the Act. On the basis of the Board's finding in its Decision and Direc-
tion of Election as reported in 117 NLRB 1213, I find that the unit described is one
appropriate for purposes of collective bargaining within the meaning of Section 9(b)
of the Act. By letter dated June 6, 1958, the Union requested that the Respondent
bargain. Answering on July 17, 1958, the Respondent, saying that the decision of
the Board was erroneous, declined to bargain with the Union concerning contractor
drivers either in Los Angeles or elsewhere. I find that the Respondent thus refused
to bargain with the Union.
In its decision accompanying the direction of election in the representation case
which issued April 16, 1957, the Board considered the Respondent's contention then
made that the lease and owner operators or contract drivers were independent con-
tractors and found them, on the basis of the evidence offered, to be employees.
ffn the hearing on the complaint here for consideration , counsel for the Respondent
asserted that following the direction of election but before an election was con-
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted, the Respondent offered new contracts to the contract drivers; that all but
three of the drivers executed the new contracts; and that prior to the date of certi-
fication by virtue of this new contractual arrangement, all of the contract drivers
had become independent contractors. Thus, it is argued that the Board is without
authority in law to order the Respondent to bargain with the Union concerning the
contract drivers.
It its decision wherein it concluded that the contract drivers were employees, the
Board listed certain provisions of the contract agreement then in effect as supporting
that result. The only changes in the new contract arrangement with the drivers
which might arguably be said to be of importance are that there is no specific re-
quirement in the contract that the driver comply with all rules and regulations which
the Respondent may promulgate or work under Respondent's general supervision.
Also, the 1953 manual of rules and regulations which the Board alluded to in its
decision is no longer in effect. However, in a letter dated June 12, 1957, which
then or shortly thereafter was sent to all contract drivers, the Respondent, while
declaring that the manual was "officially rescinded," said that an informational
guide was being compiled which would be sent on to the drivers when completed.
The letter invited inquiry from any driver having a question regarding policies,
practices, or procedures of the Respondent. Significantly, the letter states that the
contract revisions would not change the actual practices and procedures then fol-
lowed by the Respondent and the drivers in relationship with each other.
The Board having found in its decision that the contract drivers were employees,
the burden was upon the Respondent in this proceeding to establish that the circum-
stances upon which that decision was based no longer existed. The Respondent has
failed to sustain that burden. I find that the contract drivers referred to are, as the
Board found in its decision, employees of the Respondent within the meaning of
Section 2(2) of the Act. It follows that the refusal of the Respondent to bargain
with the Union as representative of these employees in the appropriate unit was
,and is a violation of Section 8(a)(5) of the Act. I so find. By the refusal to
bargain, the Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act. I make that finding.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that the Respondent has refused to bargain with the certified rep-
resentative of its employees in an appropriate unit, it will be recommended that
upon request the Respondent be ordered to bargain with the Union.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. The Respondent is an Employer within the meaning of Section 2(2) of
the Act.
3. All lease and owner operators (otherwise known as contract drivers) employed
by the Respondent, excluding all office clerical employees, guards, watchmen, pro-
fessional employees, and supervisors as defined in the Act, constitute a unit appro-
priate for purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. On and since June 6, 1958, the Union has been and is the exclusive representa-
tive of the employees in the bargaining unit described above.
5. By refusing to bargain with the Union as the exclusive representative of em-
ployees in an appropriate unit, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By the refusal to bargain, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
JESSE JONES SAUSAGE COMPANY 1279
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively, upon request with Van & Storage Drivers Local
Union No. 389, I.B.T.C.W. & H. of A., as the exclusive representative of all
lease and owner operators (otherwise known as contract drivers) employed by
us, excluding all office clerical employees, guards, watchmen, professional em-
ployees, and supervisors as defined in the National Labor Relations Act, and if
an understanding is reached embody it in a signed agreement.
WE WILL NOT by refusing to bargain or in any like or related manner inter-
fere with, restrain, or coerce our employees in the exercise of any rights guaran-
teed in Section 7 of the National Labor Relations Act.
NATIONAL VAN LINES,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Jesse Jones Sausage Company and Jones Abattoir Company and
Amalgamated Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local 332, Petitioner . Case No. 11-RC-
1175. May 25, 1959
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election of December 16,
1958 (unpublished), an election was held on January 6, 1959, in a
unit of the Employer's production and maintenance employees. The
tally showed that of approximately 76 eligible voters, 34 cast ballots
for the Petitioner, 35 against, and 14 ballots were challenged. Among
the ballots was one in which the "no" box was marked with red pencil,
which was voided by the Broad agent. This determination was ob-
jected to by the Employer's observer in signing the tally of ballots.
On February 9, 1959, the Acting Regional Director issued his re-
port on challenges and objections, in which he recommended that the
ballot marked in red was valid and should be counted as a vote against
the Petitioner. No exceptions have been filed on this point and we
adopt the recommendation.
The report also recommended that : The challenges to the ballots of
eight employees I who were not on the eligibility list because they
1 These laid-off employees are : Mary Lois Coffey, Mary P. Brown , Wilma Avery, Bessie
Tomlinson , Janie Mae Muldrow, Almetta Davis, Annie G. Rogers, Carl Johns. On Febru-
ary 16 the Acting Regional Director issued an erratum to include the name of Mary Lois
Coffey in his conclusionary paragraph to the effect that the votes of all these employees
should be counted.
123 NLRB No. 156.