Hoster Supply Co.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.2 4. The following employees at the Employer's Detroit, Michigan, plant, constitute an appropriate unit for purposes of collective bar- gaining, within the meaning of Section 9 (b) of the Act: All warehouse employees, including plant clerical employees, but excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. 5. The Union contends that no election should be held at this time because there is only one eligible worker presently employed. The record shows, however, that at least three employees, who have been temporarily laid off, are also eligible to vote as they have a reasonable expectation of reemployment, in the next few weeks, by the Em- ployer? Under these circumstances, we find no merit in the Union's contention and shall direct that an immediate election be held. [Text of Direction of Election omitted from publication.] organization to file a decertification petition , provided that it is in compliance with Section 9 (f), (g), and ( h) and the Teamsters has effected such compliance . See Philadelphia Chewing Crum Corporation, 107 NLRB 997. 2 On April 29 , 1953, a collective -bargaining contract was executed between the Employer and the Union The contract provides that after March 31 , 1954, either party may termi- nate the contract by giving 30 days' notice to the other party. As the petition herein was filed on March 1, 1954, within a reasonable time prior to the end of the original fixed term of the agreement , we find no merit in the Union's contention that the contract constitutes a bar to this proceeding. See The Pure Oil Company, 98 NLRB 139. 3 See Trenton Foods, Inc., 101 NLRB 1769 at 1772. HOSTER SUPPLY COMPANY' and GENERAL DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 886, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER. Case No. 16-RC-1439. July 26, 19541 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John C. Crawford, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. ' The name of the Employer appears as corrected at the hearing. 109 NLRB No. 74. ROSTER SUPPLY COMPANY 467 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of the Employer's truck- drivers and warehousemen. There are 2 warehousemen and 8 truck- drivers in the proposed unit. The Employer contends that 7 of the 8 truckdrivers are independent contractors and the petition should therefore be dismissed.2 The Employer is engaged in the purchase and sale of steel products, farm and ranch supplies, and scrap iron. It purchases steel at steel manufacturing centers in Illinois, Colorado, and Alabama and trans- ports it by truck to its warehouse in Oklahoma or directly to its cus- tomers in that State. It also hauls scrap iron from Oklahoma to the steel mills or to wholesalers outside the State. For its long-distance hauling, the Employer uses 7 leased trucks; it also owns 1 delivery truck which is used for making local deliveries and is operated by an admitted employee. The seven trucks used in long-distance hauling are leased from indi- vidual owners. The lease agreements between these truck owners and the Employer are effective for 3 years, subject to cancellation by either party at any time upon 30 days' written notice. By the terms of the lease agreement, the lessor agrees : "to use" the leased equipment ex- clusively in connection with other similar equipment owned or leased by the Employer for the transportation of merchandise exclusively for the Employer "to and from such points or places and at such times as may be designated" by the Employer; "to operate" the leased equipment exclusively to haul merchandise for the Employer and to "maintain same in good working condition at all times"; that the leased equipment will be available at all times and will be subject to the "exclusive management, direction, and control" of the Employer; that he will maintain the leased equipment at his sole cost and ex- pense, including all costs of operation not specifically excluded, and that he will bear the loss occasioned to the leased equipment by fire, accident, or negligence except gross negligence by the lessee. The Employer in turn agrees : to pay a given number of cents per mile "for the use of" the leased equipment, payable at the end of each month; and to maintain such property damage and public liability insurance on the leased equipment as may be necessary legally to qualify such equipment for operation in certain named States. The lease agreement also provides : Hoster Supply Company will employ drivers to operate such equipment, and will make proper deductions and payments of all 2 The Employer made this specific contention in its brief. At the hearing, it contended only that it was unable to resolve the question of the status of these drivers and requested the Board to do so. 334811-5,5-vol. 109-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD social security, unemployment, old age benefit, witholding [sic] taxes, and similar taxes on all employees driving and operating such equipment, as shall be required by law, including even the lessor, if he shall be so employed by lessee. [Emphasis supplied.] In practice, all the leased trucks are driven by their owners. The trucks are used only for hauling merchandise of the Employer and are subject to the Employer's exclusive direction and control. How- ever, when the Employer's business is slack, the Employer and the truck owners may agree on a mutual release from the lease agreement. In that case, the truck owner is free to do hauling work for other employers. The Employer directly supervises the owner-drivers. The Em- ployer determines driving assignments, but leaves the matter of the route to be taken to the owner-drivers, although this is discussed "very often." Also "for the most part" owner-drivers determine their own times of departure and arrival. The owner-drivers pay all expenses of operating the leased equip- ment, including gas, oil, and repair costs, license fees, and taxes. However, the Employer carries public liability and property damage insurance, including cargo insurance, as protection against the acci- dents in which the equipment may be involved, although many, if not all, of the owner-drivers also carry such insurance in amounts deemed inadequate by the Employer. In addition to paying the owner-driver on a mileage basis for the use of the leased equipment, the Employer also pays the owner-driver a given rate per mile for driving the leased equipment. The Employer has workmen's compensation coverage for the owner-drivers and de- ducts social-security and withholding taxes from the amounts paid them a There is no detailed evidence in the record as to the working condi- tions of the owner-drivers. Neither is there any such evidence of the working conditions of the driver of the Employer's own delivery truck, an admitted employee. The Employer's manager did testify, however, that working conditions for the delivery-truck driver are different from those for the owner-drivers because the delivery-truck driver is engaged in a different kind of work. But, he further testi- fied, if the delivery-truck driver should be shifted to the long-distance runs in which the driver-owners were engaged, "he would have the same privileges and get the same rate of pay and be subject to the same rules and regulations as the other drivers. ..." 8 The Employer asserts that it has been providing workmen's compensation coverage for the owner-drivers and making social -security and withholding deductions from their earn- ings in order to be on the safe side if it should be decided that these individuals are em- ployees rather than independent contractors. ROSTER SUPPLY COMPANY 469 To support its contention that the owner-drivers are independent contractors, the Employer relies very heavily on the Malone case,' in which the Board held that owner-drivers of leased motor vehicle equipment were independent contractors rather than employees. There are certain similarities, but more dissimilarities, between the sit- uation of the owner-drivers in the Malone case and that of the owner- drivers in the present case. As for similarities: In Malone, as in this case, the owner-drivers were bona fide owners of the vehicle equipment which they leased exclusively for freight carrying by the lessee. In Malone, as here, the owner-drivers paid all license fees and taxes on the leased equip- ment, were responsible for keeping the equipment in good operating condition, and paid for repairs and upkeep. Also in Malone, as here, the lessee provided public liability and property damage,5 including cargo insurance for the leased equipment. The dissimilarities between Malone and this case are as follows: In Malone, the lease agreement provided that the lessor was to drive the leased vehicle and was to bear the expense of labor necessary in operating the equipment and in loading or unloading freight. He was also to be responsible for any shortage of cargo. The lessee in that case also agreed to pay the lessor a percentage of gross receipts as compensation for the use of the equipment and labor furnished by the lessor. That was the only form of payment provided for either by the lease agreement or in practice. In the present case, the lease agreement covers the use of equipment only; there is no provision requiring the lessor to drive his truck 6 or to furnish labor for loading and unloading or to bear any losses resulting from a shortage of cargo. The compensation provision, too, provides for a fixed fee per mile and is not geared to a percentage of freight receipts. The owner- driver is also paid separately for his services as driver: this compen- sation, determined by services rendered, is not even mentioned in the lease agreement. In Malone, the lessee did not provide work- men's compensation coverage for the owner-drivers, or deduct social- security and withholding taxes from the earnings of the owner- drivers. All this the Employer agreed to do and does in the present case. Contrary to the facts in this case, the Malone owner-driver was not required to be available with his equipment at all times and could refuse driving assignments, in which case the name of the driver was removed from the dispatching board until he was ready to haul again. 4 Malone Freight Lines, Incorporated, 107 NLRB 501, and 106 NLRB 1107. 5 However, the owner-drivers in Malone assumed liability for claims up to $150 9 The lease agreement in this case specifically provides that "Roster Supply Company will employ drivers to operate such equipment . . " 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has held that the determination of whether an individual is an independent contractor or an employee depends on the facts of each particular case and that no one factor is determinative.' As stated in the Greyvan case," "It is the total situation, including the risk undertaken, the control exercised, the opportunity for profit from sound judgment, that marks the driver-owners as independent contractors." In the Malone case, the total picture presented was that of a small, independent-business man, the owner-driver, in partnership with a large motor freight company, the owner-driver furnishing equip- ment and labor, including his own, the motor freight company fur- nishing the business, with the two partners sharing the gross receipts in certain prefixed proportions. The net return to the owner-driver was dependent to a large extent upon°good luck and good manage- ment, the elements determining return in any business enterprise. The Board therefore found that the owner-drivers in that case were independent contractors. The relationship of the owner-drivers to the Employer in this case is ' very different. The owner-drivers here involved sold the use of their equipment, but not of their labor, for a fixed period, with com- pensation determined by the extent of usage of the equipment and not by the Employer's receipts from such usage. It is the kind of agree- ment that might be made with any truck rental company. The Em- ployer has also separately hired the owner-drivers to operate the leased trucks. It pays the owner-drivers a given rate per mile for driving the equipment, which is distinct from the money paid for leasing. It admittedly directs and supervises the work of the owner- drivers. It furnishes workmen's compensation for them, and makes social-security and withholding tax payments from their earnings. These are the usual incidents of an employer-employee relationship. Although, as stated, the details of working conditions and benefits of the owner-drivers are not set out in the record, the Employer's manager conceded that if the driver employed to drive the Employ- er's own truck were transferred to long-distance hauling, in which the owner-drivers are engaged, he would get the same rate of pay, have the same privileges, and be subject to the same rules and regu- lations as the owner-drivers. We think that the conclusion fairly to be drawn from all the evidence is that the driver-owners stand in a dual relationship to the Employer : as lessors of trucks they are inde- pendent-business men, but as drivers of those trucks they are no dif- ferent than any other driver-employees. Accordingly, we find that in their capacity of drivers, the lessors are employees of the Employer and we shall therefore include them in the unit. 7 Malone Freight Lines, Inc., supra. 8 Greyvan Lines, Inc. v. Harrison, 156 F. 2d 412 ( C. A. 7), affd. sub. nom. United States v. Silk, etc., 331 U. S. 704. CAMP MILLING COMPANY, INC. 471 We find that. the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All truckdrivers and warehousemen at the Employer's Oklahoma City, Oklahoma, operation, excluding office employees and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBERS PETERSON and RODGERS, dissenting in part : We disagree with our colleagues as to the inclusion of owner-drivers in the unit on the ground that their finding that these drivers are em- ployees of the Employer is based upon a factual situation which ap- pears to closely parallel that involved in Eldon Miller, Inc.,9 wherein the Board recently found certain truckdrivers to be independent con- tractors. Several additional factors in the instant case tending to support an independent contractor relationship appear to be even stronger than those upon which the Board relied in making its independent con- tractor finding in the Eldon Miller case. As noted by the majority, the departure and arrival time, as well as the routes to be followed on the haul, are left to the discretion of the owner-driver. In addition, the fact that, during slack business periods the Employer and truckowner may agree on a mutual release from their agreement, thereby leaving the owner free to haul for other concerns, would indicate that the status of the owner-driver is that of independent contractor rather than that of employee. We regard as not determinative of the issue the fact, heavily relied on by the majority, that the lease agreement provides for compensa- tion for the use of the equipment only. In practice, each owner drives his own truck and receives a total compensation based upon mileage. In view of the above considerations, we are of the opinion that the owner-drivers are independent contractors. Accordingly, we would exclude them from the unit. 9 103 NLRB 1627; 107 NLRB 557. CAMP MILLING COMPANY, INC. and AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL 209, AFL, PETITIONER. Case No. 3-RC-1352. July 26, 1954 Decision and Certification of Representatives Pursuant to a "Stipulation for Certification Upon Consent Elec- tion," executed on February 17, 1954, and approved by the Regional Director on February 25, 1954, an election by secret ballot was held 109 NLRB No. 73.