Mohican Trucking Co.

National Labor Relations Board - Board Decisions

Jun 16, 1961

131 N.L.R.B. 1174 (N.L.R.B. 1961)

1174 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, re-
strain,, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
Union de Trabajadores de la Industria Electronica y Ramas
Anexas de Rio Piedras, FLT, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization, as authorized in Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL, upon.request, bargain collectively with Union de
Trabajadores de la Industria Electronica y Ramas Anexas de
Rio Piedras, FLT, as the exclusive representative of all employees
in the following bargaining unit, with respect to proposed
changes in piece-work rates and work production quotas, and, if
an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is :
All„ our production and maintenance employees including
group leaders, quality control inspectors, quality control
clerks,. drivers; and incoming inspectors, excluding adminis-
trative, executive, and professional employees, office clerical
employees, watchmen, guards, and supervisors as defined in
the Act.
PROCTOR MANUFACTURING CORPORATION,
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 b y any other material.
'Mohican Trucking Company and Truck Drivers and Warehouse-
men Local 40, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Petitioner.
Case No. 8-RC-4000. Jur 16, 1961 •
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, hearings were held before Norman R. Prusa, hearing
officer. The hearing officer's rulings, made at the hearings are free
from prejudicial error and are hereby affirmed.
131 NLRB No. 148.
MOHICAN TRUCKING COMPANY 1175
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 McCulloch and Members Leedom and Fanning]
Upon the entire record in this case, the Board finds :
1. The Employer contends that it does not come within the Board's
standards for assertion of jurisdiction. Mohican was formed for the
purpose of taking over the trucking operations formerly engaged in
by Mansfield Asphalt. Richard Stander is president of both Mohican
and Mansfield, and, as appears, he is responsible for setting labor
relations and other policy for both companies. The managers of
each company are directly responsible to him. In addition, Richard
Stander is on the board of directors of both companies, his father is
the vice president of Mohican; and the stock of Mohican is held in
trust for his four children. The stock of Mansfield is held by Richard
Stander, the estate of his mother, his four children, and three others.
Both Mansfield and Mohican occupy the same building and have com-
mon office facilities. Richard Stander sets the rate of pay for all
employees except those hourly rated employees at Mansfield who are
covered by collective-bargaining contracts which Mansfield has with
several labor organizations. He also conducts all contract negotia-
tions for both companies. The operations manager of Mansfield some-
times acts as dispatcher for Mohican, and Mohican's only office em-
ployee sometimes performs work for Mansfield. The same auditor
keeps the books for both companies. Ninety percent of Mohican's
business is done with Mansfield, and 90 percent of Mansfield's truck-
ing is performed by Mohican. Particularly in view of the extent of
common supervision and control, the common offices and facilities,
the degree of ownership which resides in the family of Richard
Stander, and the integrated nature of both businesses, we find that
Mohican and Mansfield constitute a single enterprise and Employer
for purposes of jurisdiction.'
Mansfield's annual out-of-State purchases averaged $27;000 over
the last 3 years; it performs no out-of-State services. However, dur-
ing its fiscal year prior to the hearing it received $1,418,924 for the
construction of Federal and State highways within the State of Ohio.
The Board has held that the construction of State highways affects
commerce within the meaning of the Act.2 Since the Employer re-
ceives in excess of $50,000 for services performed for an instrumen-
tality of interstate commerce, we find that the Employer's operations
satisfy the jurisdictional requirements of the Board.'
1 See, e.g., Alamo-Braun Bee} Company and George Braun Packing Co., 128 NLRB 32.
2 See Saltsman Construction Company, 123 NLRB 1176, 1179; Madison County Cow,
struction Co., 115 NLRB 701.
8 See Siemons Mailing Service, 122 NLRB 81.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The parties stipulated that "all truckdrivers" at Mohican (if they
are employees) would constitute an appropriate unit. However, the
Employer contends that the truckdrivers sought are independent con-
tractors, while the Petitioner contends they are employees, within the
meaning of the Act.
As noted, Mohican was formed, in 1959, for the express purpose
of taking over the trucking operations of Mansfield. At the time
Mohican took over these operations, the 11 lease drivers sought by
Petitioner were employed as hourly rated truckdrivers by Mansfield.
Mohican's president called in the employee-drivers of Mansfield and
offered them a leasing agreement. There were no negotiations between
the drivers and Mohican as to the terms of the lease agreement; the
drivers had to accept the proffered terms or be out of a job.
Under the terms of the lease agreement, the drivers lease their
trucks and equipment from the Employer. Each lessee is given the
option of obtaining title to the particular vehicle assigned to him by
making monthly payments at amounts set unilaterally by the Em-
ployer. Paragraph numbered 3 of the agreement provides, among
other things, that the lessee shall pay all costs of operation, wages, or
other remuneration of operators, drivers, or helpers employed by him;
any applicable workmen's compensation, unemployment insurance,
social security, or other taxes; payroll taxes or other deductions re-
quired by law; taxes and fees peculiar to the operation of trucks; and
insurance on the vehicles in stated amounts. Paragraph numbered 7
provides that collections for the transportation of material by the par-
ticular vehicle shall be collected by the Employer and a separate ac-
count kept for each piece of equipment. From the amount collected,
10 percent is retained by the Employer as a brokerage fee. Of the re-
maining 90 percent, 35 percent is paid as compensation to the lessee,
and the balance is retained by the Employer in a fund from which is
paid the monthly payment due for the purchase of the vehicle and all
costs and charges of maintenance and operation of the vehicle which
the individual driver may charge to the fund. In addition, the Em-
ployer retains 10 percent of the fund to cover administration and
overhead, and also retains 10 percent of each lessee's gross earnings
for its profit. At the end of the year, 50 percent of the balance in
this account is to be paid in cash to the lessee, and 50 percent is to
MOHICAN TRUCKING COMPANY 1177
remain in the account, to be paid to the lessee at the expiration of his
agreement .4
Paragraph numbered 4 provides that "the lessee shall devote full
time and attention to the use and operation of the motor vehicles here-
inabove described only in the transportation of materials designated
by the lessor except with the written consent of the lessor; the lessee
shall not use such equipment for his own private purposes." Para-
graph numbered 5 provides that the lessor shall exercise no control or
dominion over the lessee as to the details of transportation.
After a year's operation under the agreement, a meeting of the
drivers was held for the purpose of distributing to each driver a state-
ment of his particular truck's earnings for the year. A modification
of the agreement was proposed by the Employer at that time. Para-
graph numbered 4 as modified was to read as follows : "It is under-
stood and agreed that the lessee shall devote full time and attention
to the use and operation of the motor vehicle hereinabove described
only in the transportation of materials." Paragraph numbered 7
was to provide that collections "shall be collected by the lessor or re-
ported by the lessee," and the 10-percent brokerage fee was to be de-
leted. Uncontroverted testimony indicates that the 10-percent broker-
age fee has, in fact, not been deducted by the Employer since the
proposed modification. The drivers were told of the modifications at
the meeting, but were given no opportunity to approve, disapprove,
or negotiate, and have never signed any new agreement embodying
these modifications.
Title to all trucks is in the Employer. State trucking taxes are
charged to the Employer, and the registration of the trucks is in the
name of Mohican. While the agreement states that each lessee has
the option to purchase his truck, all drivers accepted the lease arrange-
ment together with the purchase procedure as presented by the Em-
ployer. The purchase procedure was to have regularly deducted the
monthly payment fixed by the Employer. It was contemplated that
the truck would be paid off in 3 years, the term of the lease agreement.
However, Updike testified that it is impossible under this arrangement
for a driver to pay off his truck in such period.
The lessees were told by the Employer the specific material to be
picked up, where it was to be delivered, and when it had to arrive at
destination. The record shows instances, for example, where the
Employer has checked up on the drivers as to how long they spent en
route and at lunch. The Employer stated that the lessees are, under
the terms of the agreement, free to haul only as often as they wish
4 Driver Dean Updike testified that, at the end of the first year of operation under his
lease, he was informed that he was "$3,800, plus" in the red for his yearly operating
expenses , and hence he received nothing back from his fund for that year. At the time of
the hearing, only 1 year had been completed under the lease agreement.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and may refuse to haul if they do not like the rates charged. However,
Updike testified that if he should refuse to take a haul at a particular
rate he would be "out of a job." He further testified that he could not
take time off whenever he wished. When he took a vacation in 1960,
it was only after having informed the Employer almost a year in ad-
vance and after having procured a substitute driver suitable to the
Employer.
The Employer stated that the lessees were free to solicit and accept
outside hauling jobs at any time, and to set their own rates. However,
Updike testified that it was his impression he would have to consult
the Employer before accepting any outside jobs, or setting rates,
and that he had no idea how to set his own rates. The Employer could
cite no instance in which it was not first consulted when an outside job
was taken. Neither could it cite any instance in which money col-
lected was not either paid directly to it or reported to it by the lessee.
The Employer keeps a separate account of the individual expendi-
tures of each lessee. Under the agreement, a lessee may charge to his
fund the cost of all purchases and expenditures in connection with
the operation of his truck, or pay for these expenses himself ; he may
charge to his fund the cost of his insurance premiums and taxes, and
the Employer will procure the insurance for him. Updike testified
that he has never paid anything out of his own pocket, but that all
operating expenses in connection with his truck have been charged in
the name of Mohican; that although the insurance is in his name,
Updike has never attempted himself to obtain insurance or to pay the
premiums for it; and that he has never seen his insurance policy. He
also testified that he has never kept any personal records, but that
the Employer has always kept them and then furnished him a state-
ment of the status of his fund each 6 months.'
In summary, we find the following facts to be particularly signifi-
cant : (1) The lease driver must devote full time and attention to the
use and operation of his motor vehicle in the transportation of ma-
terials designated by the Employer; (2) the lease agreements were not
arrived at through negotiation, but the terms were set unilaterally
by the Employer; (3) the Employer holds title to all trucking equip-
ment, and the operating permits are issued in the Employer's name;
(4) the Employer sets and collects substantially all fees for hauling;
(5) the Employer essentially keeps all records and accounts; (6) in
actuality the drivers exercise little, if any, discretion concerning the
charges and amounts assessed against them in their accounts kept by
the Employer; (7) the drivers cannot take outside hauling jobs, en-
gage substitute drivers, use their trucks for their own private purposes,
or take time off, without prior consent of the Employer; and (8) the
r ,The parties stipulated that, if allowed to testify, the other drivers offered as wit-
nesses would testify substantially the same as did Updike.
FLORIDA STEEL CORP. (TAMPA FORGE & IRON DIV.) 1179
drivers have not, in practical effect, acted independently of the Em-
ployer in any material respect.
It has been frequently held that the resolution of such a question of
whether there exists an independent contractor relationship or an
employer-employee relationship depends upon the facts in each case,
and no one factor is determinative.' In view of the entire record
herein, we are of the opinion that the relationship of the drivers to the
Employer has not changed by virtue of the individual lease agree-
ments, and that the leasing arrangement, particularly in light of the
actual practice and overall effect, amounts to little more than a paper
or bookkeeping procedure for the convenience of the Employer.'
Under the established tests for determining this issue,' we find that,
in material respects, the Employer retains the right to control the
manner and means by which the work of the drivers is to be accom-
plished. We therefore conclude that the lease drivers sought herein
are employees of the Employer within the meaning of the Act.
Accordingly, we find that the following employees at the Employer's
Mansfield, Ohio, operation, constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
All truckdrivers, including all drivers operating under lease agree-
ments, but excluding all other employees, office clerical employees,
professional employees, guards, and supervisors as defined in the Act.'
[Text of Direction of Election omitted from publication.]
6 American Broadcasting Company, at al., 117 NLRB 13 , 18, and cases cited therein.
7 Cf. Shamrock Dairy, Inc., at al ., 124 NLRB 494.
8 See , e.g., Albert Lea Cooperative Creamery Association , 119 NLRB 817, 821 ; National
Van Lines , 117 NLRB 1213.
6 During its busy season, the Employer often contracts for individual hauling jobs with
independent owner -operators . These owner -operators are not sought by the Petitioner ;
both parties agree that they are independent contractors.
Florida Steel Corporation (Tampa Forge and Iron Division)
and Shopmen's Local Union No. 741 of the International Asso-
ciation of Bridge , Structural and Ornamental Iron Workers,
AFL-CIO. Case No. 12-CA-1231. June 19, 1961
DECISION AND ORDER
On September 22, 1960, Trial Examiner Lloyd Buchanan 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
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
131 NLRB No. 143.