Chemical Tank Lines, Inc.

CHEMICAL TANK LINES, INC. 221 cumstances, finds to be appropriate for purposes of collective bargain- ing. In the event a majority do not vote for the Petitioner, these em- ployees shall remain a part of the existing unit and the Regional Director will issue a certification of results of election to such effect.. [Text of Direction of Election omitted from publication.] Chemical Tank Lines, Inc. and Chauffeurs, Teamsters & Helpers. Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,t Petitioner. Case No. 9-PC-2522. January 24,1956 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold M. Kennedy, 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 organizations involved claim to represent employees of the Employer.' 3. No 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, for the following reasons: The Employer is engaged in the interstate transportation of liquid chemicals in tank-trailer trucks. The Petitioner seeks to represent a unit of "all truckdrivers" at the Employer's St. Albans, West Virginia, terminal. In its operations at this terminal, the Employer utilizes three -types of drivers. The Employer's so-called "regular drivers" are concededly employees of the Employer, who drive only tractors owned by the Employer. In addition, the Employer uses drivers known as "owner-operators," who own and drive tractors which they lease to the Employer, and drivers known as "nonowner-operators," who drive tractors of the owner-operators leased to the Employer. The Petitioner seeks to include in the unit all drivers in the above- ' The AFL and CIO having merged subsequent to the hearing in this proceeding, the identification of the Petitioner's affiliation is amended accordingly. 2In view of our Decision and Order dismissing the petition herein on other grounds, we find it unnecessary to pass on the motions of the Employer and the Intervenor to dismiss the petition on the ground of contract bar. a As we are dismissing the petition herein on other grounds , we find it unnecessary to pass on the Petitioner's contention that the Intervenor should not be permitted to partici- pate in a Board election because it is allegedly not a labor organization or is affiliated with a parent organization which has not complied with the filing requirements of the Act. 115 NLRB No. 35. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described categories. The Employer and the Intervenor contend that the owner-operators and nonowner-operators should not be included in the unit because they are not employees of the Employer and that the only appropriate unit is that currently represented by the Inter- venor, which includes only the Employer's regular drivers and its five maintenance mechanics. The Petitioner would exclude the mainte- nance mechanics from the unit sought on the ground that representa- tion of such mechanics is more properly within the jurisdiction of another AFL union, but states that it is willing to accept representa- tion of a unit including the mechanics. The Employer owns all of the approximately 29 tank trailers used in its hauling operations , and operates 16 of its own tractors, for which it employs 16 regular drivers. The Employer leases 16 tractors from 9 owner-operators. As indicated above, the issue as to whether the owner-operators and nonowner-operators should be included in the unit depends on whether they are employees of the Employer, or whether, as contended by the Employer and Intervenor, the owner-operators are independent con- tractors, and the nonowner-operators are employees of the owner- operators. The relationship between the Employer and the owner -operators and nonowner-operators was created , and is principally controlled, by the lease agreements under which the Employer utilizes the leased trac- tors and their operators. The leases are for a term of 1 year, subject to termination by either party upon 15 or 30 days' notice. The owner of the tractor agrees to furnish the Employer with the tractor and a qualified driver. The owner may drive the equipment himself, or at his option supply any qualified driver. In either case, the lessor of the equipment is paid a single sum, equal to 70 percent of the gross revenue for each trip, for the use of the tractor and the services of the driver. The Employer does not pay or deduct, on behalf of the owner- operators, such items as income-tax withholding payments or social- security payments. If the owner of the tractor supplies another to drive it, this driver, or nonowner-operator, is paid directly by the owner, on his own agreed terms, without participation of the Em- ployer. The lease itself provides that the owner-operator "agrees to pay . . . all charges for State Unemployment Insurance, for Federal Old Age Benefit Insurance and for workmen's compensation .. . for all drivers who have been employed by Lessor pursuant to this lease." [Emphasis supplied.] The owner-operators select the non- owner-operators to be employed on their equipment, subject only to the Employer's acceptance of them as satisfactory. An owner-operator may discharge a nonowner-operator without the consent of the Em- ployer, and the owner-operator alone controls the nonowner-operator's CHEMICAL TANK LINES, INC. 223 time off. If in the opinion of the Employer there is reason to repri- mand a nonowner-operator, the Employer so informs the owner-oper- ator, who may adjust the matter as he chooses. The lease provides that the tractor shall be devoted exclusively to the service of the Employer. Interstate Commerce Commission regulations require the leased trac- tors to bear the Employer's name, and the Employer requires the leased tractors to be painted the same color as the Employer's tractors. The Employer does not arrange for or assist in financing the purchase of any tractors. The owners are required to pay all operating and maintenance expenses for their tractors, and to pay the expense of licenses, collision and liability insurance, and taxes. They must also insure the Employer's trailer and the cargo, and are responsible for cargo shortages, but the Employer is responsible for the mechanical maintenance of the tank trailers. The Employer's dispatcher makes all hauling assignments and fur- nishes the necessary information regarding destination, consignee, and expected time for delivery. Dispatching of leased tractors is done on a trailer schedule, rather than on a tractor or driver schedule. The leased tractors are assigned to pull designated trailers. When a trailer is ready for a trip, the leased tractor regularly assigned to pull it is dispatched with it. The owners of the leased tractors must accept assignments, unless excused by the Employer for good reason. If a nonowner-operator refuses an assignment, the Employer reports his refusal to the owner-operator concerned. However, the owner-op- erators and nonowner-operators are free to choose their own routes, although the Employer prescribes the routes to be-traveled by its regu- lar drivers. All drivers are required by Interstate Commerce Commission to fur- nish daily "log sheets" of their activities and daily "equipment re- ports" concerning the mechanical condition of the tractors and trail- ers, and all tractor operators turn log sheets and equipment reports into the Employer. The owner-operators are, however, free to have maintenance repairs made anywhere they choose, and must pay the Employer for such repairs if made at the Employer's terminal. In addition to the log sheets and equipment reports, the Employer re- quires its regular drivers to maintain a daily report not required of the owner-operators and nonowner-operators. In contrast to the owner-operators and nonowner-operators, the regular drivers are salaried, and the Employer deducts income-tax and social-security payments from their checks. The regular drivers have- employee benefits such as paid vacations, paid holidays, group in-, surance, and leave-of-absence privileges, none of which are afforded'to' owner-operators and nonowner-operators. The Petitioner contends that there has been a significant degree of interchange between regular drivers and nonowner-operators, with 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regular drivers being assigned to drive leased equipment and non- owner-operators being assigned to operate company-owned tractors. The record does not support this contention. There is evidence of only 1 nonowner-operator operating an Employer-owned tractor with- in 5 years. Ralph Burdette, who is no longer driving for the Em- ployer in any capacity, testified that he worked as a nonowner-opera- tor for an owner-operator named Roberts from November 1954 to March 1955, and that on an unspecified number of occasions when Roberts had no work for him he drove an Employer-owned tractor for the Employer. In March 1955 at Burdette's request he was placed on the Employer's payroll as a regular driver, and thereafter, on oc- casions when the Employer had no work for him, he was permitted to drive for some of the owner-operators. He was always paid sepa- rately by Roberts and the Employer. The Employer's terminal man- ager testified that the Employer permits regular drivers to work for owner-operators if they wish to do so during slack periods when they would otherwise be laid off, and that on such occasions they are paid separately by the owner=operators. He denied, however, that the Employei.• had any practice of permitting nonowner-operators to drive 'the Employer's tractors. Two nonowner-operators corrobo- rated the terminal manager's testimony, and Burdette stated that he knew of no other nonowner-operator who had driven Employer- owned tractors. Even assuming that Burdette was employed part time on Employer-owned equipment while in the employ of an owner- operator and might be deemed to have been a part-time-employee of the Employer on those occasions, we find that this is not determina- tive in deciding the status of any nonowner-operators who are not employed by the Employer in this manner. Nor does the fact that regular drivers may be permitted occasionally to work part time for owner-operators in any way affect the issue of whether nonowner- operators are employees of the Employer. The Petitioner also contends that the Employer has "dealt with" the Intervenor concerning the owner-operators and nonowneropera- tors as part of the unit which the Intervenor represents. However, there'is no evidence that the Intervenor ever bargained with the Em- ployer on behalf of the owner-operators and nonowner-operators. Further, as such a bargaining history would not be controlling as to the issue of their employment status even if established, we find that the hearing officer properly sustained objections to evidence offered by the Petitioner for the purpose of proving an allegation that the Em- ployer and Intervenor attempted to force owner-operators and non- owner-operators to become members of the Intervenor. The Petition- er's statements in the record make it clear that this proffered testimony was intended to show assistance or domination of the Intervenor by the CHEMICAL TANK LINES, INC. 225, Employer, an allegation which relates to unfair labor practices, and which may not be litigated in a representation proceeding.' In support of its contention that the owner-operators and non- owner-operators are employees of the Employer, the Petitioner relies on the Board's decisions in Foster Supply Co., 109 NLRB 466, and Hughes Transportation Co., 109 NLRB 458. The Employer and the Intervenor rely on Cement Transport, Inc., 111 NLRB 175, in oppos- ing rihe Petitioi e>x's contentions. We find that the Cement Trans- port case, in which the Board held the owner-operators there in- volved to be independent contractors, and the nonowner-operators to, be their employees, is similar in its significant aspects to the instant case. In that case, as here, the owner-operators selected, paid, and controlled the nonowner-operators. The lessee of the tractors paid the tractor owner a single sum for the use of the tractor and the services of a qualified driver who was not identified in the lease. As in the pres- ent case, there was a clear contrast between the Employer's relation- --s1lip with owner-operators and nonowner-operators on the one hand, and the salaried drivers on the other. Conversely, the Hoster and Hughes cases are distinguishable in sig- nificant respects from the instant case. In both cases, the employers selected the nonowner-drivers, paid the owner-operators separately for the lease of the tractors and their services as drivers, and exercised direct supervisory powers over both the owner-operators and the non- owner-operators. On the basis of the foregoing, and the record as a whole, we find that the'Eiiiployer ;and,the Owner-operators who lease tractors to the Em- ployer specifically intended to establish an independent contractor re- lationship. In our opinion, the facts related above, the terms of the leases in question, and the freedom of the owner-operators and non- owner-operators from control by the Employer, indicate that the owner-operators and nonowner operators are not employees of the Employer,-and we so find. They must therefore be excluded from the proposed unit. r We find that the I4:mployer's'salaried regular drivers either alone or together with the mechanics may constitute an appropriate unit .5 However, an administrative analysis indicates that the Petitioner has an insufficient showing of interest in either of such units, and can only make the required showing if the owner-operators and nonowner- operators were included in the unit. Under these circumstances, we shall dismiss the petition herein.6 [The Board dismissed the petition.] 4The Mengel Co , 114 NLRB 321. National Foundry Co of New York, Inc, 109 NLRB 357 c Bonded Freigktways. Inc , 103 NLRB 407, 410 bcrtpp. Howard, Radio, Inc , 100 NLRB 293 390609--5 6-v o l 115-16