Lyon Van & Storage Co.

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lyon Van & Storage Co. and Lyon Van Lines , Inc. and Van and Storage Drivers, Packers & Helpers Union Local 389, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case No. 921-CA-3064. April 14, 1959 DECISION AND ORDER On December 10, 1958, Trial Examiner David F. Doyle issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in any unfair labor practices and that the complaint be dismissed in its entirety as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Respondents filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with certain modifications as indicated below.' [The Board dismissed the complaint.] 'In affirming the Trial Examiner's finding that the Respondents did not violate Sec- tion 8(a) (5) of the Act, we do so only on the ground that assuming that the subject matter of the lease agreements was bargainable, the Union's request for bargaining, addressed to the Respondents alone, was too limited in scope and did not constitute a demand for bargaining in the appropriate unit. In view of our disposition of the case, we find it unnecessary to reach the question whether the Act obligated the Respondents to bargain with the Union with respect to the lease agreements. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding is brought under Section 10(b) of the National Labor Relations Act, 61 Stat. 136, pursuant to a complaint issued by the General Counsel of the National Labor Relations Board against the Respondent Companies.' Lin this report, Lyon Van & Storage Co. and its wholly owned subsidiary Lyon Van Lines, Inc., are referred to jointly as Lyon or the Company ; Van & Storage Drivers. Packers & Helpers Union Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, the Charging Party, as Local •389 and its sister Local 692, as Local 692, and these two organizations jointly as the Unions ; the General Counsel of the Board and his representative at the hearing, as the General Counsel ; the National Labor Relations Board, as the Board ; and the Labor Management Relations Act of 1947, as amended, as the Act. 123 NLRB No. 92. LYON VAN & STORAGE CO. AND LYON VAN LINES, INC. 735 The complaint dated July 23, 1958, alleged that the Company 2 had engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the Act, by (1) discriminating in regard to the hire, tenure, terms, and conditions of employ- ment of certain of the Company's employees, and (2) by restraining and coercing these employees in the exercise of the rights guaranteed them in Section 7 of the Act, and (3) by refusing to bargain with Local 389, the duly designated exclusive collective-bargaining representative of the employees, as to the terms of an agree- ment called the "Owner-Driver Agreement." The answer of the Company denied the commission of unfair labor practices but admitted certain facts concerning the operation of the Company. It also raised certain affirmative defenses which will be discussed at length hereafter. Pursuant to notice a hearing was held in Los Angeles, California, on September 10, 11, 1958, before the duly designated Trial Examiner. The parties were represented by counsel who were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce relevant evidence. At the close of the hearing the parties were given an opportunity to argue orally and to file briefs. The Company has filed a brief which has been considered. Upon the entire record in the case I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Upon the pleadings, stipulations, and evidence, I find that Lyon Van & Storage Co. is a corporation engaged in the transportation of household goods by truck throughout California with its principal office located at Los Angeles. Lyon Van Lines, Inc., is a wholly owned subsidiary of the first named corporation, and is an interstate carrier of household goods only, operating throughout 48 States. Lyon Van Lines, Inc., is certificated by the Interstate Commerce Commission, herein called I.C.C., to operate in 37 States in the west and midwest. To effect delivery in the eastern States, it maintains an interline arrangement with Wheaton Van Lines of Indianapolis, Indiana, which also operates under a certificate issued by the I.C.C. All of the operations are conducted pursuant to the published tariffs and regulations of the I.C.C. In the course and conduct of interstate operations during the past 12-month period, Lyon Van Lines, Inc., rendered services outside the State of California of a value in excess of $100,000. Upon all the evidence I find that the companies constitute a single employer, and that at all times material hereto Lyon was and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Upon the pleadings I find that Local 389 and Local 692 are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The undisputed facts constituting the background of the present controversy The issues raised by the pleadings and the evidence can be clearly understood only when viewed in the light of the background of the present controversy. Fortu- nately, practically all of the background facts are undisputed. 1. The operation of the Company, the two types of drivers employed in long-line operations It is undisputed that since a date prior to 1948, the Company in its long-line operations has employed two types of drivers. One type may be called "plain drivers"; these are employees who drive company-owned equipment and are subject to the supervision of company officials. The second type of driver is referred to in the testimony as "owner-drivers," or "owner-operators." These men own either the tractor which tows a moving-van trailer, or they own both tractor and trailer which are engaged in the Company's business pursuant to a lease executed by the Company and the individual owner-driver. This arrangement, whereby two types of drivers were employed, appears to have sprung from the nature of the Company's business, for at the hearing no contention 2 Lyon Van Lines, Inc. was added as a Respondent by order at the hearing. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was made either by the General Counsel or Local 389 that this system of two types of drivers was initiated or maintained by the Company for the purpose of evading its responsibility under the Act. 2. The representative status of the Unions; bargaining conducted on an industry-area basis; the current contract It is likewise undisputed that for approximately 20 years Local 389 has represented and bargained for all of the Company's drivers, both local and long-line. For that period, the Company and Local 389 have had a series of labor agreements covering the wages, hours, and conditions of employment of all drivers employed by the Company. The current contract between the parties has a union-security clause, and, pursuant to it, all the drivers are members of Local 389. However, it should be noted that beginning in 1951, the bargaining was conducted on a multiemployer and multiunion basis. It is admitted that since that year the wages, hours, and working conditions of all employees in the van and storage industry in the Los Angeles-Long Beach area were negotiated by a negotiating com- mittee representing approximately 35 to 40 van and storage companies in that area on one side of the bargaining table, and Local 389 of Los Angeles and Local 692 of Long Beach on the other side. Customarily when the conferees agreed upon the terms of a contract the Unions prepared a form draft of the document, which was then executed in the name of each individual company and the individual union involved. Pursuant to this arrangement, Lyon Van & Storage Co. and Local 389 became signatories to the current contract between the parties on July 30, 1956.3 This labor contract is in the conventional form, containing articles dealing with the working day, overtime, holidays, discharge, vacation, seniority, arbitration, wage schedule, hourly wage rates, security fund payments, pension plan payments, and termination of the agreement. Article XI of this document entitled, "Long-Line Provisions," sets forth the hourly wage rates of drivers and helpers in this type of operation, and contains additional provisions covering payment for overtime, lay-over time, deadheading, etc. There is no dispute between the parties as to the coverage of all drivers within the terms of this agreement for in article I of the document entitled "Designation of Bargaining Agency and Jurisdiction," the Company "recognizes the union as the sole and exclusive bargaining agency for all employees within the jurisdiction of the local union described as follows: all truckdrivers, packers, craters, order fillers, checkers, warehousemen, loaders, helpers, and working foremen." Furthermore, it is admitted that all drivers, under prior contracts and under the current contract, are paid wages at the rates, and under the conditions, set forth in the labor agreement. There is no dispute between the parties arising from either the terms, or the effect of this labor agreement. The dispute between the parties has its source in a second contractual arrangement, which the Company maintains with its owner-drivers. 3. The owner-driver agreement It is likewise undisputed that since a date prior to 1948, the Company has main- tained individual lease arrangements with its owner-drivers. By the terms of this Owner-Driver Agreement, the owner-driver agrees to the use of his trucking equip- ment in the business of the Company, and the Company agrees to pay him a per- centage of the I.C.C. tariffs as rent for the equipment. B. The controversy It is undisputed that for many years the Unions, in the course of the industrywide bargaining, sought to bargain upon the terms of the owner-driver agreement, and that the industry negotiators invariably refused to negotiate upon that subject. Usually, according to the testimony of Frankowski, a union representative at the bargaining conferences, the representatives of both parties permitted the question to escape from the negotiations in their joint efforts to establish wages, hours, and working'condi- tions for all the employees of all the companies in the Los Angeles-Long Beach area. Tt is likewise undisputed that in the negotiations which resulted in the current contract, the Unions again sought to bargain with the industry committee on the subject of the terms of the owner-driver agreement, and that again the industry representatives resisted these efforts of the Unions. At this point, the issues may be stated clearly. 3 General Counsel's Exhibit No. 2. LYON 1AN & STORAGE CO. AND LYON VAN LINES, INC. 737 C. The issues It is the contention of the General Counsel, and Local 389, that in the negotiations of 1956, the Unions again sought to bargain with the industry committee on the terms of the owner-driver agreement , and that the committee instructed the Unions to negotiate on that subject with the five additional companies who had owner- drivers in their employ; and that when Local 389 sought to bargain with the Com- pany on that subject, the Company refused to bargain with Local 389 upon either (1) the general terms of the owner-driver agreement or (2) upon certain grievances under that agreement which Local 389 had received from the owner-drivers. In addition, the General Counsel and Local 389 contend that the Company, without consulting Local 389, changed the terms of the owner-driver agreement by negotiat- ing changes with individual owner-drivers, and that because of this conduct the Company is guilty of the unfair labor practices alleged in the complaint. The Company contends that the complaint must be dismissed for several reasons. First, the Company contends that the subject matter of the owner-driver agreement is a lease of individually owned personal property, and that the Act does not require the Company to bargain with Local 389 on that subject which is beyond the purview and outside the scope of the Act. The Company claims that the owner-operators have a dual relationship to the Company; (I) as employees, in which their relation- ship is subject to the labor management agreement and (2) as independent con- tractors in which the owner-drivers have an unrestricted right to deal with their own personal property as each sees fit, and in which they stand in the relationship of lessor-lessee to the Company. Second, the Company contends that the complaint should be dismissed because it is directed against it, as a single employer, whereas bargaining has always been conducted on an industrywide, multiemployer, multiunion basis, in a bargaining unit composed of all employees of the 35 to 40 companies represented by the industry negotiating committee of the Los Angeles-Long Beach area. Third, that the leases between the owner-operators and the Company are not subject to bargaining between the Company and the Unions, because bargaining on that subject and any agreement based thereon would be a violation of the anti- trust laws. Fourth, in any event, Local 389 has waived any alleged right it might have had to bargain on the subject matter by certain conduct in, and subsequent to, the 1956 negotiations. D. Findings as to the owner-driver agreement; its operation At the hearing a specimen of one type of "Owner-Driver Agreement" was admitted in evidence.4 Also, the General Counsel called Norman Stranne, manager of operations, and the Company called Charles G. Long, its vice president, to give additional testimony as to actual operations pursuant to the owner-driver agreement. The testimony of these men, and the terms of the agreement are not in conflict. I have credited the testimony of these witnesses. From an analysis of the agree- ment, and the testimony of the witnesses, certain significant features of the contractual obligation of the Company and its owner-drivers emerge, and certain practices of those parties under the contracts are established. The findings on these points are set forth in the summary which follows. It is undisputed that the equipment, which is the subject of the lease, is of con- siderable value. The cost of a tractor of the type used in transcontinental moving operations is between $9,000 to $14,000, depending upon the type that the owner- driver chooses. The cost of the conventional long-line trailer varies between $7,000 to $8,000. The tractors which the owner-drivers generally operate weigh between 41/2 and 7 tons, and the long-line trailer pulled by the tractor averages between 10,000 and 12,000 pounds unladen. The owner-driver chooses and purchases his own equipment, and if necessary he finances it, without any assistance from the Company. The equipment is not made according to any company specifications, and the owner-driver selects any make of equipment which he thinks will be suitable for the type of work. The owner-driver is either the owner of the equipment or is the conditional buyer of the equipment with legal title in the seller under the conditional sales contract until the price of the equipment is fully paid. The owner-driver may own either the tractor alone, or both the tractor and the trailer, and according to the evidence, there are some owner-drivers who own and operate more than one tractor and trailer. 4 General Counsel 's Exhibit No. 10. 508889-60-vol. 123-4-8 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company maintains offices at Dallas, Texas , Indianapolis, Indiana, and Chicago, Illinois. On its own I.C.C. certificates it operates long-line trucking as far east as Michigan, Ohio, Louisiana, Arkansas, and Texas. The plain drivers, of which there are 37, operate within this area, using approximately 50 tractors and trailers owned by the Company. Beyond the points set forth above, the Company operates almost exclusively by means of owner-drivers, of which there are 37, and has only 1 piece of company- owned equipment, and 1 plain driver, engaged in this work. The gross revenue of an owner-driver under the lease agreement varies between $20,000 to $24,000 per year. A plain driver, by comparison, engaged in long-line operations earns approxi- mately $7,000 to $7,500 a year, and a local plain driver would have an average income of approximately $6,000 per year. All long-line drivers operate under a rotating system of dispatch. The names of the drivers, without regard to whether they are owner-drivers or plain drivers, are placed on the same dispatch list and they are assigned runs in the order of their names. However, if an owner-driver does not care to take a particular transaction or trip for any reason, he has the privilege of refusing the job, in which case his name is placed at the bottom of the dispatch list. Plain drivers, however, must take any trip which the Company assigns to them. Since the inception of the owner-driver system at sometime prior to 1948, some owner-drivers have discontinued their leasing agreements with the Company and taken positions with other companies, or taken positions as plain drivers with the Company, disposing of their equipment in any manner which they saw fit. All owner-drivers under the system of seniority maintained, which is the same for both plain drivers and owner-drivers, have the right to dispose of their equipment and become plain drivers for the Company at any time they wish. The owner- driver purchases licenses for his equipment in California and Arizona, but the Com- pany purchases any licenses for other States which he may need. The owner-driver is responsible for all costs incident to his ownership of the vehicles, and he is solely and personally responsible for the maintenance and repair of that equipment, and for any loss resulting from its operation. The owner-driver makes the payments on the equipment, and it is he and the seller who determine the amount of payment and the length of time covered by the payments at the time he buys the equipment. The Company has nothing whatsoever to do with such financing. At any time that the agreement between the Company and the owner-driver is terminated, the owner-driver takes the equipment and disposes of it as he sees fit. When the equipment is not being operated for the business of the Company, the owner-driver has exclusive possession and control and use of the equipment, and at all times he is responsible for its garaging and protection. In the course of its operations the Company often interchanges equipment with other interline operators, but the equipment of an owner-driver cannot be interchanged without his consent and is effected only by mutual agreement between the Company and the owner-driver. The owner-driver has the right and the responsibility to hire his own helpers and when his equipment is driven by another driver, the owner-driver is responsible for the payments to those employees. In connection with his jobs the owner-driver must provide the material necessary to all packing and transport of goods and their unpacking at the destination. Packing and unpacking are performed by helpers, hired by the owner-driver , and the payment of these men is the responsibility of the owner-driver. The materials used in packing and unpacking belong to, and are the property of, the owner-driver. All helpers are members of the Unions. Sometimes the owner-drivers trade employees or helpers with each other. The helpers are under the control of the owner -drivers, and in practice, the Company does not know how many helpers the owner-driver has hired, who they are, how much they are paid or how much work they do; that is the sole concern of the owner-driver. In the matter of time off, the plain drivers must take such time off as is allotted to them by the Company. However, since owner-drivers may refuse jobs as they please, they may regulate their own time off by taking such trips as they choose, or taking such time off as they desire. The Company provides bookkeeping in order to keep a record of expense and the cost of certain operations, as a convenience to the owner-drivers, if they submit such information to the Company, but the Com- pany does not pay any wages to helpers or treat such wanes for social security pur- poses, that being the sole responsibility of the owner-driver. In operations, the owner-driver selects the route he will follow in making de- livery; he stops where he chooses , and starts at whatever time he chooses ; and buys all items of gasoline, oil, and repairs as he chooses , and without any direction or con- LYON VAN & STORAGE CO. AND LYON VAN LINES, INC. 739 trol by the Company. The Company requires that plain drivers wear company uni- forms, but owner-drivers are not required to wear uniforms . Both the plain drivers and the owner-drivers maintain daily logs of their activities pursuant to a regulation of the I.C.C. In settlement of an account for a run the Company pays the owner-drivers two types of compensation; one is computed , for the payment for labor, pursuant to the collective-bargaining agreement between the Company and the Union . These pay- ments are subject to withholding and social security taxes. The other figure in settlement is computed pursuant to the terms of the owner-driver 'agreement, and is not subject to withholding and social security taxes. The Company keeps separate records of the owner -driver's wages, under the collective-bargaining contract, and of his income under the owner-driver agreement . The figures are totaled on a sheet called the settlement sheet when the Company and the owner -driver settle their accounts at the end of each run , or as agreed upon. The owner-driver has an op- portunity to control his own income and profit, aside from the wages paid to him under the labor contract , since he may increase his income if he has particular ability to load his trailer to maximum weight, to select the fastest and best routes to travel, and to use his equipment so that maintenance and repair are held to a minimum. The owner-driver contract is cancellable at any time upon written notice of cancellation by the Company , or a written request of cancellaiton by the owner- driver. In the event the owner-driver does not drive the equipment himself, the driver so employed must be approved by the Company. The Company provides the public liability insurance and some of the licenses under which the equipment is operated . The equipment must be painted with the name and emblem of the Company. The remuneration schedule of the agreement includes payment for packing and unpacking, which is retained by the owner -driver when he performs those tasks himself. E. The 1956 negotiations The negotiations of the current contract were begun by the negotiating com- mittees representing the parties on February 27, 1956. The final meeting at which the Unions accepted the terms of the contract was on April 25. Most of the negotiating conferences were held at the office of Ernest Delaney, who is the labor relations consultant to the van and storage industry, and is chairman of the in- dustry negotiating committee. Delaney was assisted in the negotiations by Howard Adams, director of public and industrial relations for the Company, and by Lloyd Erxleben, Paul Freudi, and Ralph Rolapp, not identified further. The Unions were represented by a group of business agents, headed by Ray W. Frankowski, secretary- treasurer of Local 389, and including Business Agents Naccarato, Copelan, and Merrill. At the hearing, Frankowski, Delaney, and Adams testified, in agreement on some points, and in conflict on others, as to what was said by the parties in the course of the negotiations. It is undisputed that prior to the negotiations the Unions submitted to the em- ployers under date of February 24, 1956, a document entitled "Suggested Proposals Van and Storage Agreement." 5 This document listed, among proposed changes in the contract, a "New Section 23: Provide that leased operations of employees shall be permitted only when approved by the Union." Frankowski testified that the representatives of the parties in due course discussed the above proposal, the Union suggesting that the committees negotiate the terms of the owner-driver agreement. The industry representatives would not agree to the proposal, and at the meeting of March 14, Delaney and the industry committee said that the committee did not have authority to negotiate on that subject because only five companies in the industry had lease arrangements with owner-drivers.6 The industry committee then suggested that the Unions negotiate the terms of the owner- driver agreements, individually, with the five companies who had such type of operation. Ernest Delaney testified that new section 23 was among the Unions' proposals and that the subject was discussed at the third or fourth bargaining session. According to Delaney, when the subject was proposed for bargaining, as it had been proposed in prior years, the industry representatives took the same position which they had taken in prior years, to the effect that the subject of the terms of the owner-driver agreement was "an unsuitable proposal" and that it was "an improper subject for Union's Exhibit No. 2. These companies were Lyon, Republic, Dean, National, and Columbia Van Lines. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD industry-union negotiations." Delaney categorically denied that he said that the subject matter should be submitted to and negotiated with the individual companies who used owner-drivers. He also said that his committee's authority was general, to negotiate on all subjects covered by the Act, on behalf of all the employers. Delaney testified that in negotiations in prior years, the Unions and industry representatives had discussed the independent contractor relationship of the owner- drivers, and the industry representatives had uniformly taken the position that the subject matter of owner-driver agreements was unsuitable for the negotiations. Ac- cording to Delaney, in the 1956 negotiations, at one point Frankowski said that the question of the owner-drivers would have to be resolved before the Unions would sign a contract with the five companies who had owner-drivers. Later, Frankowski, in agreeing to leave the subject of the owner-driver agreement said, "If I can't bargain with you, I reserve the right to pursue it with the other companies who have that type of arrangement." The industry representatives made no comment to this. Adams testified that when the new section 23 was proposed by the Unions, that the industry representatives stated that "In accordance with the traditional pattern the committee felt or was convinced that that proposal had no 'proper place in our negotiations and that it was not a proposal for negotiation under the terms of the contract we were negotiating." This brought a response from the Unions that no contract would be signed with those companies having owner-drivers "until that question was disposed of." On cross-examination Adams testified that in the Company's view, "the union was not entitled to negotiate and be recognized on the subject of the owner-operators agreements," and that it would be improper for the Company to negotiate such agree- ments. He testified that the Company was willing to adjust any complaints which any owner-driver had with the man himself, or his representative, but the Company was convinced that it had no duty to recognize Local 389, or to negotiate with it on grievances arising under the owner-driver agreement; that the authority of Local 389, under the Act, was limited to those subjects covered by the labor agreement. F. The correspondence subsequent to negotiations Ultimately the parties agreed on the terms of the current contract, as now written, without any "New Section 23." However, in the copies of the contracts transmitted by Frankowski, for the five companies who employed owner-drivers, he inserted the following provision at the end of the agreement, in article X1V-term of agree- ment: Section 3: Any Company signatory to this Agreement who utilizes the services of lease, sub-lease or owner operators hereby agrees to negotiate with the Union all the terms and conditions of service rendered by said operators, upon demand by the Union for such negotiations. In the event such negotiations do not result in an agreement covering services of such operators, the Union may, at its option, terminate this entire Agreement by giving thirty (30) days registered mail notice to the Company. When these five contracts were received by Delaney, he immediately noticed that the new section 3, set forth above, had been inserted in the contracts. He notified the companies that the provision had been inserted without the agreement of the industry's committee, and he lined out the provision from the contracts. They were signed and returned to the Unions, with the new section 3 deleted. On July 30. 1956. in transmitting the contract to the Unions, Adams, director of public and industrial relations for the Company sent the following letter 7 to Fran- kowski, secretary-treasurer of Local 389: DEAR RAY: Enclosed to you herewith, in duplicate, is Agreement effective April 1, 1956 between this Company and Local 389. Both copies have been signed by President Frank A. Payne for the Company and by you for the Union. The typewritten paragraph identified as Section 3 of Article XIV has been deleted and the deletion has been initialed on both copies by Mr. Payne. The provisions of this paragraph were not a part of the settlement reached in be- half of this Company between the Moving & Storage Industry Negotiating Com- mittee and the Committee representing Locals 389 and 689 [sic]. It is re- quested that you initial the deleted portion of one copy of the Agreement and return it to the Company in care of the undersigned. Yours very truly, 7 General Counsel's Exhibit No. 3. LYON VAN & STORAGE CO. AND LYON VAN LINES, INC. 741 On August 6, 1956, Frankowski replied to Adams,8 as follows: DEAR MR. ADAMS: Received both copies of the Master Agreement with your certified letter dated July 30, 1956 stating that the company deleted the type- written paragraph identified as Section 3 of Article XIV. ,We,will agree with you that this portion of the negotiations was -not a settle- ment reached with the Moving and Storage industry Negotiating Committee and the committee representing Locals 389 and 692, but if your company will request the Moving and Storage Industries Negotiating Committee to check the original proposals of the union and the minutes of the committee meeting with the Local Unions on March 14, 1956 in Mr. Delaney's office, you will find: In regards to Section 23 of the union proposal Mr. Delaney and his com- mittee felt and agreed that Section 23 was not a proposal for the entire committee to discuss. Mr. Delaney stated that as the companies sign individual contracts, this should be submitted and negotiated with the companies who hire lease operators. We took the liberty of inserting this in your contract in order to be able to sit down and negotiate this portion with your company. At your earliest convenience we will meet with your representatives for the purpose of negotiating this portion. Very truly yours, Frankowski testified that though he requested a meeting with representatives of the Company to negotiate on the terms of the owner-driver agreement, in the above letter, that the Company did not comply with his request. It appears that the representatives of the parties had little or no discussion on the subject thereafter until August 23, 1957. On that date Charles K. Hackler, attorney for Local 389, wrote the following letter 9 to Lyon Van Lines, Inc., attention Norman E. Stranne: GENTLEMEN: As attorneys for Teamsters Local No. 389, we have received a number of complaints from owner-driver members of this organization with respect to the handling of their compensation, advances and method of payment. More specifically, drivers have complained to the Local Union that your com- pany is charging five percent interest on advances made to the drivers, despite the fact that you do not pay the lease driver his percentage of the haul at the end of each trip. Apparently your company is charging against these drivers the cost of certain permits and use taxes other than the ordinary vehicle license taxes required by the states of California and Arizona. Paragraph 12 of the Owner-Driver Agreement provides that the driver is responsible only for the last two mentioned license fees. Furthermore, complaint has been made of your practice of deducting from semi-monthly paychecks any amount you see fit or completely holding up these checks, based upon running obligations of the driver. The Owner-Driver Agreement does not provide for some of these practices and others are violative of this agreement. Before advising the Local Union what action to take to correct this situation I will appreciate a reply stating any justification you may claim for such prac- tices and also your disposition with respect to correcting the same. Yours very truly, On September 9, 1957, Adams, director of public and industrial relations for the Company, replied to Hackler, as follows: 10 GENTLEMEN: Your letter of August 23rd, addressed to Lyon Van Lines, Inc., attention Mr. Norman E. Stranne, their Manager of Operations, and acknowl- edged by him August 26th was forwarded to this office for necessary action. This was necessarily delayed until the writer returned from vacation. The owner-drivers you refer to, as you may have been informed, work for Lyon as employees and are treated as employees in every respect including our recognition of the labor agreement we have with Teamsters Local No. 389 for them in their employee status. In addition to their status as employees, there isalso in effect between the Company and each of these drivers an Owner-Driver Agreement. This agreement covers certain arrangements for the use of the General Counsel's Exhibit No. 4. o General Counsel 's Exhibit No. 5. 10 General Counsel 's Exhibit No. 6. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD services and the equipment of the individual. This separate arrangement in no way interferes with or infringes upon the employee status of the driver. As is our practice, we are always ready and willing to meet with representa- tives of the Union on any matters that may arise upon the labor agreement. However, the matters contained in your letter pertain to the Owner-Driver Agreement and not to the labor agreement, therefore are not proper subject for discussion under the labor agreement. Thank you for your interest. May we suggest, if you care to do so, that you refer to us any owner-driver who may believe he has a complaint. We can assure you that any complaints will be thoroughly investigated and if we find we have been at fault, or if there are any misunderstandings to be clarified, we will take immediate steps to correct such variations. We regard our drivers as good valuable employees and we want the owner-driver arrangements we have with some of them to be satisfactory to both parties. Mr. Ray Frankowski, Secretary-Treasurer of Local 389, recently expressed interest in the contents of your letter and for that reason, copy of this letter is being mailed to him. Sincerely yours, At that point the matter came to rest, but only temporarily. G. The changes in the owner-driver agreement Norman Stranne, manager of operations of the Company, testified without con- tradiction that in December 1957, the Company decided to make certain changes in the owner-driver agreement for economic and competitive reasons. It sought to revise the Lessor's Remuneration Schedule by reducing tractor rates by 1 percent, from 50 to 49 percent, and the semitrailer rates from 55 to 54 percent. The Com- pany had also decided that it was forced into a practice engaged in by its competitors, of charging the long-line operators the costs of local pickups which had been made previously by the Company as its own expense. Pursuant to management's decision, Stranne awaited the return of each owner- driver to the Los Angeles terminal. When each arrived, he explained the situation to the owner-driver and gave him a copy of a notice of cancellation of the old agree- ment and a copy of the new proposed contract. He requested the owner-driver to study it, and let him know if it was satisfactory. In the course of approximately 1 month all the owner-drivers signed the new contracts which differed from the old contracts only in the particulars noted above. I credit this undisputed testimony of Stranne. H. The demand for bargaining by Local 389 The negotiation of the new owner-driver agreement occasioned a formal demand by Local 389 for bargaining on the subject. On March 31, 1958, Frankowski, secretary-treasurer of Local 389, brought the matter to a head by the following letter to Adams of the Company: 11 DEAR SIR: Van and Storage Drivers Local Union No. 389, by this letter, makes formal demand upon Lyon Van and Storage Company for recognition as collective bargaining agent for the purpose of negotiating pay and conditions covering the furnishing of tractors, trailers or other equipment by employee- drivers for the service and usage of the company. It has recently come to the attention of the union that the company is offering its employee-drivers new individual contracts which reduce the percentage of line haul revenue payable to the drivers for their services and the use of their tractors. Before the com- pany requires the drivers to execute any new so-called individual contracts reducing the drivers share of line haul revenue, the union herewith demands negotiations upon this subject. In the 1956 negotiations between the union and the Moving and Storage Industry Negotiating Committee, the union requested negotitaions on an indus- try basis of the terms and conditions under which drivers leased or otherwise made available equipment to the companies represented by the committee. At that time the industry committee informed the union that it should negotiate such matters directly with the particular companies who were hiring leased operators since some of the employers represented by the committee did not operate in this fashion. In line with this suggestion, your records will show that the union included a clause in the 1956 Agreement submitted to your 11 General Counsel's Exhibit No. 7. LYON VAN & STORAGE CO. AND LYON VAN LINES, INC. 743 company which provided for recognition and bargaining , upon demand, with respect to the equipment furnishing arrangements with your drivers. Upon your rejection of such a commitment , the union on August 6, 1956 requested further negotiations on this subject. The matter was allowed to rest until last fall, at which time the union at- tempted to process member grievances which had arisen in the administration and interpretation of the so-called individual contracts of the members covering their services and use of their equipment. At this time your company took the position that it would not recognize the union as having any interest in such matters. Again the union allowed the matter to remain at rest. On March 19, in my meeting with Mr. Adams, he indicated that the com- pany was unwilling at that time to discuss the changes which the company is now attempting to make in the individual agreements. During all of the times mentioned above, the union has consistently taken the position that it is entitled to bargain upon the subject matter of the equip- ment lease arrangements of the employees whom it represents and has disagreed with the company's position that these matters were not a proper subject of collective bargaining . In the interest of harmonious relations , the union has not filed proceedings with the National Labor Relations Board to secure a legal determination of the issue, particularly in view of the fact that the company had not attempted to change the terms of the individual agreements which were in effect at the time other provisions of the collective bargaining agree- ment were negotiated with the industry. However, the projected unilateral changes in the drivers' lease arrangements leave the union no alternative except to bring the matter to a head at this time. Accordingly, we desire your prompt response to this letter stating whether the company will recognize the union and enter into negotiations on the subject matter mentioned above and, upon the failure or refusal of the company to agree to recognize and immediately negotiate, the union is prepared to file refusal to bargain charges with the Na- tional Labor Relations Board. Very truly yours, [Emphasis supplied.] On April 17, 1958, Adams replied to Frankowski stating that they were giving his letter careful consideration and would reply to him in the very near future. On May 1, 1958, Adams replied to Frankowski, as follows: 12 DEAR SIR: This is in reply to your letter of March 31, 1958, receipt of which was acknowledged by letter April 17, 1958. In line with our previously stated and oft repeated willingness to discuss with your union any matters in which you express an interest , our company has carefully considered your demand. We need not dwell on the background of your demand as you outline it in your letter nor as brought out in our exchange of letters with Stevenson & Hackler last summer. For reasons previously stated, we must decline your demand for recognition of your union as collective bargaining agent for individuals who are parties to Owner-Driver Agreements with Lyon Van Lines, Inc. We do recognize your union as the 'bargaining agent for those individuals who are members of Local 389 insofar as terms and conditions of the labor agreement between Lyon Van & Storage Co. and Local 389 are concerned. Very truly yours, On May 23, 1958, Local 389 filed the charge herein. Concluding Findings It is the contention of the General Counsel and Local 389 that the principal question involved in the proceeding is relatively simple, is the Company required by the Act to bargain on the subject matter of the owner-driver agreements? In their view, these contracts constitute the terms under which an "employee" furnishes a "tool " or an "automobile" in connection with the employee's performance of his job. The General Counsel and Local 389 contend that the owner-drivers here are in the same position as a carpenter who brings his tools to the job site, or a salesman who uses his automobile in calling on his employer 's customers . They contend that the Board's decision in National Van Lines, 117 NLRB 1213, and similar cases, is dispositive of this issue . I do not agree, for the reasons hereafter set forth. v^ General Counsel's Exhibit No. 9. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. On many occasions the Board and the courts have been called upon to decide whether certain workmen were "employees" or "independent contractors" within 'the meaning of the Act. The decision of highest authority on the subject is that of the Supreme Court in Harrison v. Grey van Lines, Inc. 13 In that case, the Supreme Court had before it the question of whether certain unloaders of coal , under an arrangement with a retail dealer , whereby they were paid an agreed price per ton, furnishing their own picks and shovels, and the driver-owners of coal delivery trucks, who were paid by the coal dealer a certain sum per ton and furnishing all equip- ment to the trucking operation , were employees or independent contractors under the Social Security and Unemployment Compensation Acts. Also involved were the driver-owners of Greyvan Lines, which, like the Company here, is an interstate mover of household goods. Of the Court's opinion, written by Mr. Justice Reed, the following is especially pertinent: Probably it is quite impossible to extract from the statute a rule of thumb to define the limits of the employer-employee relationship . The Social Security Agency and the courts will find that degrees of control , opportunities for profit or loss, investment in facilities , permanency of relation and skill required in the claimed independent operation are important for decision . No one is controlling nor is the list complete. These unloaders and truckers and their assistants are from one standpoint an integral part of the businesses of retailing coal or transportation . Their energy, care and judgment may conserve their equipment or increase their earnings , but Greyvan and Silk are . the directors of their businesses . On the other hand, the truckmen hire their own assistants, own their trucks, pay their own expenses, with minor exceptions , and depend upon their own initiative, judgment and energy for a large part of their success. Giving full consideration to the concurrence of the two lower courts in a contrary result, we cannot agree that the unloaders in the Silk case were inde- pendent contractors . They provided only picks and shovels . They had no opportunity to gain or lose except from the work of their hands and these simple tools . That the unloaders did not work regularly is not significant. They did work in the course of the employer's trade or business . This brings them under the coverage of the Act... . There are cases, too, where driver-owners of trucks or wagons have been held employees in accident suits at tort or under workmen 's compensation laws. But we agree in the decisions below with Silk and Greyvan that where the arrangements leave the driver-owners so much responsibility for investment and management as here, they must be held to be independent contractors. [Citing cases.] These driver-owners are small business men. They own their own trucks . They hire their own helpers . In one instance they haul for a single business, in the other for any customer . The distinction , though impor- tant, is not controlling. It is the total situation, including the risk undertaken, the control exercised , the opportunity for profit from sound management, that marks these driver-owners as independent contractors. The Board accepted the criteria for determining the status of individuals laid down by the Court, and for many years has applied them in similar circumstances. Applying the criteria of the Court and the Board to the undisputed facts of the contractual relationship of the owner-drivers to the Company here, I cannot agree that these owner-drivers , who supply equipment of the approximate value of $15,000 each, are in the same category as the unloaders of coal who provided picks and shovels to the job and who gained their livelihood exclusively "from the work of their hands and these simple tools ." On the contrary it seems crystal clear to the Trial Examiner that the owner-drivers in the instant case are similar to the owner- drivers in the Silk and Greyvan cases, and that they must be held to be independent contractors. 14 However, there is another facet to the total situation , for many years the Unions and the companies composing the industry have treated and dealt with each other on the premise that the owner -drivers had a dual capacity , being employees as to the Ia Combined with U.S. v. Silk, in decision , and reported under that name at 331 U.S. 704. 14 Malone Freight Lines, Inc., 107 NLRB 501 and 106 NLRB 1107; Eldon Miller, Inc., 103 NLRB 1627, 107 NLRB 557. LYON VAN & STORAGE CO. AND LYON VAN LINES, INC. 745 tasks they performed personally, and being independent contractors as to the lease of the equipment which each furnished. This finding is inescapable, in view of the undisputed evidence that for many years the owner-drivers, the companies in the industry, and the two locals gave effect to two contracts, which at all times ran parallel, and concurrently, and which treated the owner-drivers as employees in one, and as independent contractors in the other. In considering this feature, it must be noted that the lease arrangement does not infringe upon the terms of the labor agreement, and that the former by its terms is separate and distinct from the latter. This dual capacity of these owner-drivers is not the result of the point of view which one takes of the total contractual arrangements of the parties, as an abstract proposition of law, but is the fact, undisputed and established by the con- duct of the parties over a long period of years. Now, Local 389 claims that under the Act it has a legitimate concern or interest, as a labor organization, in the subject matter of the lease arrangements. I cannot perceive that legitimate concern or interest. The evidence establishes that for many years the parties on an industrywide basis have negotiated all the terms of the labor agreements. These agreements have a union-security clause, and all the owner-drivers belong to, and pay dues to, the Unions. The Unions are, and have been, the exclusive bargaining agent for all the owner-drivers, and, in pursuance of their duty as bargaining agent, have negotiated contracts which establish wages, hours, and conditions of employment for all drivers, including owner-drivers, in the industry. There is no complaint here that the owner- driver agreements vary, change, or nullify any term of the labor agreement or deprive any owner-driver of any benefit to which he is entitled by the terms of the labor agreement. Here, the grievance of Local 389 is that the lease arrangement is not being administered to its satisfaction.15 As long as the terms of its labor agreement are faithfully performed, I cannot see how the administration of the owner-driver agreement is any legitimate concern of Local 389. Local 389 appears to base its argument on the broad ground that under the owner- driver agreement the take-home pay of the owner-drivers may be lessened. The argument is not valid. The take-home pay, so called, is computed in accordance with the labor agreement. The Unions have full rights which they exercise in that computation; and they have no complaint on that score. What Local 389 complains of is that some owner-drivers, having been paid their full take-home pay according to the labor agreement, may stand a chance of losing some of it in their independent contractor operations. To that, the obvious answer is that the owner-drivers take that hazard and engage in those operations because they hope for a profit, like all businessmen, and since they have engaged in the business for many years, it would appear that the chance of profit must be better than the chance of loss. Upon the undisputed evidence, I find that the Unions and the companies in the industry, including Lyon, have fulfilled their duties under the Act, and negotiated a labor agreement on wages, hours, and conditions of employment which is now being fully performed by the parties. I find further that the Company is not required under the Act to bargain with Local 389 as to the terms of the owner-driver agree- ments. The latter are contracts between the owner-drivers, as independent con- tractors, and the Company as to the lease of the owner-drivers' personal property, and as such are outside the purview and scope of the Act. As I view the total situation, the relationship of the owner-drivers with the companies herein is similar to that of the owner-drivers in Hoster Supply Company, 109 NLRB 466. In that case the Board said: 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 independent businessmen, but as drivers of those trucks they are no different than any other driver-employees. [Emphasis supplied.] Therefore, d find that the owner-drivers herein stand in a dual relationship to the Company, and that the Unions have the right, which they have exercised, to bargain on an industrywide basis as to the wages, hours, and working conditions of the owner-drivers in their employee capacity, but the Unions have no right to bargain on the subject matter or to administer the owner-driver agreements which the owner-drivers have made with the Company in their capacity as independent businessmen. 2. Counsel for Lyon also urges that the complaint herein must be dismissed because it is directed against only one employer, whereas the appropriate bargaining In this connection, General Counsel's Exhibit No. 7, Frankowski's formal demand for bargaining, is highly significant. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit of years' standing is a multiemployer unit. This contention brings up for dis- position the conflict of testimony between Frankowski, representative of Local 389, on one side, and that of Delaney and Adams of the industry committee on the other. In the light of all the evidence, I am persuaded that Delaney and Adams have furnished the correct version of the manner in which the question of owner- driver contracts were handled in the 1956 negotiations. The evidence establishes that the question of the right of the Unions to bargain on the subject of the owner- driver agreements had been raised prior to the 1956 negotiations, and that the position of the industry representatives had been that the Unions were not entitled to bargain on that subject. In the light of that background, I am not persuaded that the industry negotiators in the 1956 conferences rejected the Unions' proposal on the narrow ground that the subject should be negotiated with the individual com- panies. According to Delaney, Frankowski said, in dropping that subject, that he reserved the right to take the matter up with the individual companies concerned. However, according to the testimony of Delaney and Adams, there was no acquies- cence to that statement by the industry negotiators. Such a statement by the Unions' representative was ineffective to create a right in Local 389 to proceed against one employer of the multiemployer unit. Especially is that true when, as here, it is admitted that five members of the multiemployer unit have owner-drivers. There might be some basis for arguing that this question should be resolved by negotiation with the five companies involved, but in no event can Lyon be singled out of the multiemployer unit as the target for a demand for bargaining, in a unit composed only of Lyon's employees. In Joslin Dry Goods Company, 118 NLRB 555, the Board wrote as follows in a similar situation: In our opinion the Union's failure to request bargaining in the proper unit is fatal to the General Counsel's Section 8(a)(5) allegations against the Re- spondent. "[A] prior appropriate request for bargaining is a condition prece- dent to any finding of a refusal to bargain." (Citing Barlow-Maney Labora- tories, Inc., 65 NLRB 928, 943; The C. L. Bailey Grocery Company, 100 NLRB 576, 579.) While the existence of "minor variations" between the unit originally proposed by the Union and the unit which the Board ultimately finds appropriate, will not, in and of itself, preclude the Board from sustaining a refusal to bargain allegation, we note that here the proposed unit is virtually twice as large as the unit which we would normally find appropriate, and includes categories which are not properly in the unit. Accordingly, in the face of this substantial variation between the proposed unit and the appropriate unit, we shall dismiss the complaint herein, insofar as it alleges that the Re- spondent violated Section 8(a) (5) of the Act. [Emphasis in original.] Upon the undisputed evidence as to the history of bargaining in the multiemployer unit, I find such a unit to be appropriate, and I find that the request of Local 389 for bargaining, addressed to Lyon alone, for Lyon's employees only, was not a proper request for bargaining in the appropriate unit. I find further, that this variation between the existing appropriate unit, and the proposed unit, is substantial, and warrants dismissal of the complaint. 3. The third contention of the Company is that the Unions have waived any rights they might have had to bargain on this subject. This contention is based on the following circumstances: (1) that the Unions raised this question in the 1956 negotiations and sought to bargain thereon, and that the industry negotiators re- fused to bargain on the subject; (2) that thereafter the Unions signed a new contract with the industry which contained no provision relating to the subject; (3) that Local 389 waited approximately 1 year thereafter before it demanded bargaining with Lyon on the subject. Upon all the evidence, I find that if the Unions have any right to bargain on the subject, which is contrary to the findings above, they have not waived them by their conduct in, and subsequent to, the 1956 negotiations. The situation in this respect appears to be clear. The question had been raised in prior negotiations, and allowed to escape from the negotiations as the representatives of the parties attempted to arrive at an industrywide contract. In the 1956 negotiations the same result was reached, but the Unions made it manifest that they were not satisfied with the situation, and would pursue the matter further, exerting such rights in the premises as they had. The demand for bargaining by Local 389, directed to Lyon, is ap- parently the first effort made by Local 389 to effectuate that purpose. Under those circumstances, d can perceive no conduct which would constitute a waiver. I find that no such waiver was effected. 4. Counsel for the Company also contends that the leases between the owner- drivers and the Company are not subject to bargaining between the Company and THE GREAT ATLANTIC & PACIFIC TEA COMPANY 747 Local 389 because bargaining on that subject, and any agreement based thereon, would be a violation of the antitrust laws of California and the United States. In this connection counsel cites the case of Local No. 24 International Brotherhood of Teamsters,,etc. v. Revel Oliver, et al., 78 S. Ct. 1007, in which Oliver v. All States Freight Inc., reported at 42 LRRM 4024, is subject for review. In the latter named case, the Ohio Court of Appeals found a carrier-union contract which fixes prices for the lease of equipment to be a violation of the antitrust laws of Ohio. He urges the rationale of the Ohio decision here. The argument, and the citation on which it is based, is noted here for the benefit of the Board. However, I deem such considerations to be outside the province of the Trial Examiner. For all of the reasons set forth above, it is recommended that the complaint be dismissed in its entirety. The Great Atlantic & Pacific Tea Company and Meat Cutters, Packinghouse and Allied Food Workers Union, Local No. 433, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 12-CA-341. April 15, 1959 DECISION AND ORDER On December 29, 1958, Trial Examiner Sydney S. Asher, Jr., 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board l has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, as modified herein 2 1Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 2 Because the Trial Examiner found that the natter was not covered in the complaint and was not "fully litigated," he did not pass upon whether Smith, the Respondent's meat department manager at its Herschel store, unlawfully interrogated his assistant, Chapman. As no exceptions were filed, we also need not determine whether Chapman was illegally interrogated. However, we do not adopt the Trial Examiner's test as to whether or not this issue was fully litigated. The complaint, as amended at the hearing, alleged that the Respondent engaged in unlawful interrogation during a meeting between employee Harriett and a group of man- agement officials, which included the Respondent's counsel. This meeting was requested by Harriett and was held less than a week prior to the hearing. As Harriett voluntarily related his own union activities and an isolated question was interjected by the Respond- ent concerning Harriett's knowledge of the union activities of other employees, assuming that such interrogation was made, we agree with the Trial Examiner that under the special circumstances herein, the interrogation was not violative of the Act. 123 NLRB No. 96.