Moving Storage Negotiating Committee

MOVING STORAGE NEGOTIATING COMMITTEE, ETC . 387 Upon the basis of the foregoing findings of fact, and upon the entire ,record in the case, I make the following: CONCLUSIONS OF LAW 1. Local Union No. 156, Upholsterers' International Union of North America, AFL-CIO, is a labor organization within the meaning of the Act. 2. By interrogation of employees, by telling employees that it knew who the adherents of the Union were , by threatening a plant shutdown and loss of jobs if the Union were successful in organizing the employees , by holding out to the em- ployees a reasonable expectation of a raise and paid lunch periods and holidays if the Union were unsuccessful , and by informing an employee that difficult work had been assigned and would be assigned to an employee because of her support of the Union, the Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 4. The Respondent did not commit an unfair labor practice within the meaning of Section 8(a) (5) of the Act. [Recommendations omitted from publication.] Moving Storage Negotiating Committee and its Employer Mem- bers and Van & Storage Drivers Union, Local 389, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehouse- men & Helpers of America, Ind.; General Truck Drivers, Chauffeurs & Helpers Union, Local 692, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind.; General Truck Drivers, Warehousemen & Help- ers Union, Local 235, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind.; and General Teamsters, Sales Drivers, Food Processors, Ware- housemen & Helpers Union, Local 871, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind. Case No. 21-CA-3891. January 22, 1962 DECISION AND ORDER On August 31, 1960, Trial Examiner Howard Myers 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report together with a supporting brief, and the Gen- eral Counsel filed a brief in support of the Intermediate Report. 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 Interme- diate Report, the exceptions and briefs, and the entire record in the 135 NLRB No. 54. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, and finds merit in certain exceptions to the Intermediate Report for the reasons discussed below. Pursuant to a charge filed on February 10, 1960, by the four Team- ster Locals.herein, a complaint was issued on April 8, 1960,1 against the Respondent, Moving Storage Negotiating Committee, alleging that it had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. Affirma- tively, the complaint alleges that the Committee has unlawfully re- fused to bargain on behalf of its employer-members with the locals concerning the terms of certain equipment lease agreements. The Respondent Committee, on its own behalf, and not in behalf of any of the employers it represents, admitted the filing of the charge and service upon it, but denied all other allegations of the complaint- It also alleged a number of matters as affirmative defenses. The Respondent Committee is comprised of four or five individuals who lneet periodically to negotiate bargaining contracts for approxi- mately 57 trucking companies based in the Los Angeles area, each of which has given the Committee a written power of attorney to repre- sent it in all matters of collective bargaining. The four locals herein are the exclusive bargaining representatives of the employees of the companies, and since at least 1956 have bar- gained with the Committee on behalf of the individual employers who, delegated authority to the Committee to bargain for them. The indi- vidual powers of attorney to the Committee are worded in broad terms, to represent the particular employer "in all matters of collec- tive bargaining." However, for some years there has been an under- standing between Lyon (one of the trucking concerns ) and the Com- mittee that the Committee was not to negotiate with the Unions con- cerning equipment leases, and, as a matter of practice, all contracts negotiated by the Committee are subject to final approval by each of the employer-members before they are signed. At the hearing, testimony was introduced concerning the terms of certain leases of equipment by one employer, Lyon Van Lines,' and its operations under the leases. No evidence was presented concern- ing lease operations of any other employer in the multiemployer unit, although at the time the Unions made their demand for bargaining at least three or four other employers represented by the Committee had similar operations,' and utilized equipment leased from owner- Amended on April 22, 1960. Lyon Van Lines, engaged in interstate hauling, is the wholly owned subsidiary of Lyon Van and Storage Company. 3 The Trial Examiner in his Intermediate Report, section III, 3 , a, sketches the history of the bargaining demands. During the 1956 negotiations the Unions proposed that the contract contain a provision concerning lease operations . The Committee refused to dis- cuss the matter, maintaining that it lacked authority to negotiate such a provision , since- only a "few companies" then had lease operations . The Unions thereupon inserted a clause on this subject in each of the contracts with five companies The companies struck the clause and returned the contract to the Unions . In January 1960, the Seventh MOVING STORAGE NEGOTIATING COMMITTEE, ETC. 389 ,operators, and there is nothing in the record to show that circum- stances have changed. The Trial Examiner found that the owner-operators under the lease agreements with Lyon Van Lines were not independent con- tractors, ,and, notwithstanding the limited nature of evidence adduced and the absence of process on the individual employers, he also found that the Committee and each individual employer bargaining through the Committee had violated Section 8(a) (5) and (1) of the Act by failing to bargain with respect to terms of equipment leases. He ac-, 'cordingly recommended that they be ordered to bargain and to cease .giving effect to any lease agreements extant. The Respondent Committee contends that the Trial Examiner erred in a number of respects. Specifically it asserts that the complaint should have been dismissed because : (1) the individual employers were necessary parties respondent; (2) the evidence was insufficient to establish the Committee's obligation to bargain on a multiemployer basis with respect to minimal terms of leases of equipment; (3) the demand for bargaining was ill-defined and was for an inappropriate unit; (4) the Committee had no authority to, and therefore was not obligated to, bargain on minimal terms of a lease of equipment; (5) owner-operators of leased equipment are not employees, but inde- pendent contractors; and (6) the terms of a lease of equipment are not ,a mandatory subject of bargaining. The General Counsel, on the other hand, although conceding that the individual employers were not served, nonetheless contends that since the Board has jurisdiction over the Committee, which is the bar- gaining agent for the employers, an effective remedy can be achieved by an order directed solely against the Committee. Assuming that the subject matter of the lease agreements was a bar- gainable matter, we are nonetheless of the opinion that the complaint herein should be dismissed. Contrary to the General Counsel's con- tention, we believe that no proper order can be entered in this proceed- ing determining the Committee's authority to bargain on terms of lease agreements, or the status of owner-operators as employees, without affording affected individual employers an opportunity to appear and 'defend their interests.' This was not done. The General Counsel thus concedes that no order can be entered here finding that the individual Circuit Court of Appeals ( 273 F. 2d 402 ) denied enforcement of the Board's Order of May 25, 1959, which was based on bargaining demands as to National Van Lines by Local 389 . Thereafter Local 389 made demands for bargaining to Lyon, which, as the Board subsequently determined, did not constitute a demand for bargaining in the appro- priate unit. In September 1959, Local 389 made demands to the Committee for bargain- Ing on behalf of Lyon , Republic, and Columbia Van Lines The Committee replied through its representative that the demand , among other things, did not request bargain- Ing with "all the companies involved " On November 30, 1959, the four locals joined in demands embracing the Committee 's "member firms." This was renewed in January 1960. ' Cf. Consolidated Edi8on Co of New York, Inc . v. N L.R B , 305 U.S. 197, 233. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employers violated the Act, since they were not brought in as parties- respondent.' Moreover, we are of the opinion that another serious impediment exists to the entry of an order finding that the Committee refused to bargain in violation of the Act. It is clear that the Unions demanded that the Committee bargain on behalf of all employers with lease arrangements who were part of the multiemployer unit. It is undis- puted that there are at least four of five employers who have lease agreements with owner-operators. However, the only evidence con- cerning the status of owner-operators was with respect to those owner- operators under agreements with Lyon Van Lines. We cannot assume that the same lease arrangements exist for the other employers, and that all owner-operators are employees and none are independent con- tractors. It follows, therefore, that the evidence is insufficient to es- tablish that the Committee has refused to bargain on terms of lease agreements in a multiemployer unit appropriate for such bargaining. Accordingly, we shall dismiss the complaint herein 6 [The Board dismissed the complaint.] CHAIRMAN MCCULLOCH and MEMBER FANNING, dissenting: We agree with the majority that the evidence concerning the lease arrangements of only one of the employers was insufficient to warrant a finding as to the lessor-drivers of all such employers bargaining through the Committee. We would accordingly remand the case for further hearing to receive such additional evidence and to afford the affected individual employers an opportunity to appear and defend their interests. It is over 5 years since the Charging Parties commenced their efforts to bargain with one or more of these employers over the truck-leasing arrangements. The demand to the Committee for such bargaining for all its "member firms" on which this action is based was made over 2 years ago. On remand the obvious procedural and evidential defiencies can be cured without remitting the parties to the hazards of possible new legal impediments that could attend the filing of new charges after the dismissal ordered by the majority. A remand would therefore appear the preferable and more expeditious way, after these years, to bring before the Board for a decision the substantive issues in the case on which the charging parties have sought a ruling. Cascade Employers Association, Inc, 126 NLRB 1014. In dismissing the complaint herein , we are not passing on the merits of the sub- stantive issues in the case, nor does our Order preclude the Charging Parties from filing new charges. MOVING STORAGE NEGOTIATING COMMITTEE, ETC. INTERMEDIATE REPORT AND ,RECOMMENDED ORDER 391 STATEMENT OF THE CASE Upon a charge duly filed on February 10, 1960, by Van & Storage Drivers Union, Local 389, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind.; General Truck Drivers, Chauffeurs & Helpers Union, Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind.; General Truck Drivers, Warehousemen & Helpers Union, Local 235, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind.; and General Teamsters, Sales Drivers, Food Processors, Warehousemen & Helpers Union, Local 871, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Ind., herein called the Unions, ,the General Counsel of the National Labor Relations Board, herein respec- tively called the General Counsel 1 and the Board, through the Regional Director for the Twenty-first Region (Los Angeles, California), issued a complaint, dated April 8, 1960,2 against 'Moving Storage Negotiating Committee 3 and its Employer Members, herein called Respondents, alleging that Respondents had engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, amendment to complaint, and notice of hearing thereon were duly served upon Respondents and copies of the complaint, amendment to complaint, and notice of hearing thereon were duly served upon the Unions. Specifically, the complaint, as amended, alleged that (1) since July 30, 1956, the Unions have been the collective-bargaining representatives of the employees of the Committee's employer-members in a certain appropriate unit; and (2) since Febru- ary 2, 1960, Respondents although requested to do so on the previous January 27, refused to bargain with the Unions with respect to minimal conditions under which certain persons in the appropriate unit leased equipment to their respective employers. On April 21, 1960, Respondents duly filed an answer, on the following May 3 duly filed an amended answer, and on May 10 duly filed a second amended answer. Each of the aforesaid documents, besides setting forth certain affirmative defenses, denied the commission of the unfair labor practices -alleged. Pursuant to due notice, a hearing was held at Los Angeles, California, from June 7 through 10, 1960, before the duly designated Trial Examiner. The General Counsel, Respondents, and the Unions were represented by counsel and participated in the hearing. Full opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, to introduce pertinent evidence, to argue orally at the conclusion of the taking of the evidence, and to file briefs on or before July 11, 1960.4 Briefs have been received from each party which have been carefully considered. On July 20, 1960, the General Counsel filed a motion to correct certain inaccu- racies appearing in the stenographic report of the hearing. The motion is hereby granted and the motion papers are received in evidence as Trial Examiner's Exhibit No. 1. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OPERATIONS OF THE COMMITTEE'S MEMBERS The employer-members of the Committee are, and at all times material were, engaged in, among other things, moving household goods, merchandise, and the like, between Los Angeles, California, and points located within and without the State of California. During the 12-month period immediately prior to the issuance of the complaint herein the out-of-State services rendered by the Committee's employer-members exceeded $50,000. 1 This term specifically includes counsel for the General Counsel appearing at the hearing a Under date of May 2, 1960, an amendment to complaint was served upon the parties. 'Referred to herein as the Committee. - '4At the request of Respondents' counsel the time to file briefs was extended to and including August 1, 1960. ' 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing facts, the Trial Examiner finds, in line with established Board authority, that Respondents are engaged in, and during all times material were engaged in, business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that their operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Unions are labor organizations admitting to membership employees of the members of the Committee. III. THE UNFAIR LABOR PRACTICES The Refusal To Bargain Collectively With the Unions 1. The appropriate unit The complaint, as amended, alleged that all truckdrivers, packers, craters, order fillers, checkers, warehousemen, loaders, helpers, and working foremen employed by the Committee's members and within the jurisdiction of the Unions constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Respondents' second amended answer denied the aforesaid allegation. Upon the entire record in the case, especially when consideration is given to the past collective-bargaining history of the parties to the various contracts since 1951, the Trial Examiner is of the opinion, and find, that all truckdrivers, packers, craters, order fillers, checkers, warehousemen, loaders, helpers, and working foremen, excluding all other personnel during all times material, constituted, and now consti- tute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9,(b) of the Act, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. The Trial Examiner further finds that said unit insures to said employees the full benefits of their right to self-organization, to collective bargaining, and otherwise effectuates the policies of the Act. 2. The Unions' majority status in the appropriate unit Since 1951, the collective-bargaining contracts covering the employees in the appropriate unit have contained a union-security clause and at all times since 1956, the Unions and the Committee's members have, with the possible exception of those firms employing less than 10 persons out of about 1,150 in the appropriate unit, exe- cuted union-security contracts, or have been giving full force and effect to said union- security contracts although not actually executing them. Under the circumstances, the Trial Examiner finds that during all times material the Unions were, and still are, the duly selected and designated representatives of the majority of the employees in the appropriate unit, and that, by virtue of Section 9(a) of the Act, were at all times material, and still are, the exclusive representatives of all the employees in said unit for the purposes of collective bargaining with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain a. The pertinent facts For almost a decade Local 389 and Local 692 5 have negotiated contracts with the metropolitan Los Angeles area van and storage industry. Since 1953, the indus- trywide negotiations were carried on by the Committee, composed of four employees of the companies and a permanent chairman, Ernest Dalany.6 The companies have always executed identical powers of attorney specifically authorizing the Committee to act on their behalf in collective-bargaining matters with the Unions representing the persons in the appropriate unit.? Negotiations are opened when the Unions send a letter regarding the renewal, termination, or reopening to individual companies with whom they have collective- bargaining contracts with copies of said letters thereof to Dalany. Thereafter, s In 195'7 the geographical jurisdictions of Local 389 and of Local 692 In and around 'Pomona, California, and Orange County were given to Local 871 and Local 235, respectively. e The personnel of the members of the Committee have changed from time to time. 7 The power of attorney of National Van Lines, Inc., is slightly different. MOVING STORAGE NEGOTIATING COMMITTEE, ETC. 393 negotiations are held and once they have been concluded, both negotiating groups agree to recommend the acceptance of the agreed-to-terms to their respective groups. Once approved by the groups, the proposals are reduced to writing. The Unions then have the contract printed and send the printed copies thereof to Dalany who, in turn, distributes them to the companies for which the Committee holds powers of attorney. Each company then signs a printed copy of the agreement and returns it to the Unions directly. An agreement was negotiated by the Unions and the Committee in 1951, and supplements thereto were negotiated by said parties in 1954 and 1955. A new agree- ment was negotiated in 1956, by and between the Unions and the Committee and a supplement thereto was negotiated by them in 1959. The same negotiation pro- cedure has been substantially used since 1953; that is, after agreement has been reached by the Unions and the Committee, the Unions print the contract, send the printed contracts to Dalany, Dalany then sends a copy of the printed contract to each company for which the Committee holds powers of attorney, the company then signs the printed copy and returns it to the Unions. In addition to the Committee's negotiation activities with the Unions, the Com- mittee has met occasionally to discuss industry problems. In 1956, when the Unions threatened strike action during negotiations, the Committee informed the Unions that, in the event any economic action was taken against one employer, the other employers might be compelled to make "no work available" to members of the Unions. Apart from occasional meetings of the Committee to discuss industry problems, the day-to-day administration of the contracts concerning questions of industrywide nature has always been handled by Dalany as chairman of the Committee. For these activities, Dalany receives a yearly retainer from many of the Committee's members. In addition to these industrywide problems, Dalany handles the industrial relations problems of individual members of the Committee on an individual basis for which Dalany bills each of such companies separately on an hourly basis. All but two employers giving powers of attorney to the Committee and doing business within the geographical jurisdiction of the Unions have executed or are giving effect to the current union-security contract and the supplement thereto. The exceptions are employers having 7 employees between them whereas the other em- ployers have about 1,150 persons in their employ. In 1953, and thereafter, the Unions requested bargaining as to lease-drivers agree- ments, but the request was "shuffled somewhere in the back." During the 1956 negotiations the Unions again proposed that the contract contain a provision that leased operations should be permitted only when approved by the Unions. The Committee refused to discuss the matter maintaining that it lacked the necessary authority to negotiate such a provision, since only a few companies then had lease operations. The Committee suggested that the Unions take the matter up with the individual companies having such operations. Acting upon the Committee's aforesaid suggestion, the Unions proposed to the companies having leased equipment 8 that the new bargaining contract contain a clause to "provide leased operations to employees be permitted only when approved by the Unions." The aforesaid five companies signed the 1956 contracts negotiated by the Committee but deleted therefrom all reference to the above-quoted clause. The Unions then inserted section 3 under article XIV in each of the contracts with the five named companies which section reads as follows: Any Company signatory to this Agreement who utilized 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. The said companies either refused to sign the contract unless the aforesaid section 3 was eliminated or struck said section from the contract and returned the contracts to the Union. Local 389 has refused to sign a contract with four companies involved, but Local 692 subsequently executed a contract with Dean Van Lines without section 3 being a part thereof. However, all five companies are giving full force and effect to all of the provisions of the 1956-61 master collective-bargaining contract and the 1959 supplement thereto. 8 Namely, Columbia Van Lines, Inc. Lyon Van & Storage Company, Republic Van & Storage Company, National Van Lines, Inc, and Dean Van Lines. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In 1956, Local 389 filed a petition for certification with the Board's Twenty-first Region requesting certification as the collective-bargaining representative of National Van Lines, Inc.'s leased drivers. Local 389 won the Board-conducted election but National refused to bargain with it concerning leased drivers. Hereafter an unfair labor practice charge was filed against National. On May 25, 1959, the Board (123 NLRB 1272) directed National to bargain with Local 389. On January 5, 1960, the Seventh Circuit (273 F. 2d 402), denied enforcement of the Board's Order of May 25, 1959. The Unions then sought to bargain with Lyon with respect to questions arising under the equipment-leased agreements. Lyon refused to do so maintaining that while it treated the lease drivers as its employees it maintained that any question which might arise concerning said agreement was not bargainable. In short, Lyon refused the Unions' request to bargain regarding its lease drivers or with respect to any provision of the lease agreements. Because of Lyon's aforesaid position, Local 389 filed a refusal to bargain charge with the Board's Twenty-first Region. The Board (123 NLRB 734) in sustaining the Trial Examiner's recommendation that the complaint be dismissed in its entirety stated: "In affirming the Trial Examiner's finding that Respondent did not violate Section 8(a)(5) of the Act, we do so only on the ground that assuming that the subject matter of the lease agreements are 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 dispo- sition 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." Under date of September 4, 1959, Ray W. Frankowski, secretary-treasurer of Local 389, wrote Dalany as follows: You will recall my letter to you dated June 5, 1959 concerning the question of bargaining for the owner-driver employees of several companies who conduct their labor relations through your Association. In order to alleviate any mis- understanding that may have arisen from that letter, I wish at this time to clarify our position. At this time VAN & STORAGE DRIVERS, PACKERS & HELPERS UNION, LOCAL NO. 389 requests that your Association commence negotia- tions as to the wages, hours and other conditions of employment of the owner- driver employees at the following companies: LYON VAN LINES, INC., RE- PUBLIC VAN & STORAGE COMPANY and COLUMBIA VAN LINES. INC. Furthermore, we request that your Association negotiate with this Local Union as to the owner-driver employees of the above named companies as a single unit, as distinguished from separate bargaining as to the owner-driver employees of each of the three companies. In this regard, it is our position that the owner-driver employees of the above three named companies constitute an appropriate bargaining unit and any negotiations entered into between this Local Union and your Association should cover that classification of employees of the three companies. We specifically exclude the owner-driver employees of NATIONAL VAN LINES since they were certified as a separate bargaining unit, and the National Labor Relations Board in the present 98(x)(5) pro- ceedings has consistently treated those drivers as a separate unit. We can assure you that the owner-driver employees of the above three com- -panes are members in good standing of this Local Union and have authorized this union to negotiate all terms and conditions of their employment, including the substantive terms of the individual lease agreements. We would be, of .,course, willing to prove the fact of our majority support by making available to you the membership cards we held from these employees, at such time and place as is convenient for you. If we do not receive any response from you within ten days from receipt of this letter, we will deem this a refusal on your -part to negotiate as to the above classification of employees. -Under date of September 16, Dalany replied as follows: This is in reply to your letter dated September 4, 1959. As I informed you in my letter dated June 11, 1959 which was in reply to your letter dated June 5, 1959, I have no association and neither myself nor any negotiating committee of employers that I represent have any Power-of-Attorney or authorization to deal with you concerning Owner-Drivers that have any relationship with any of the companies named in your letter. The Negotiating Committee which did negotiate with you for certain employers did so under a tabor relations Power-of-Attorney executed individually by such employers with MOVING STORAGE NEGOTIATING COMMITTEE, ETC. 395 the authority to act on matters involving collective bargaining with the author- ized representatives of the employees of such employers who are within the .classifications embodied in the Agreement with Local No. 389 and/or Local No. 692. Furthermore, the status of such Owner-Drivers is that of independent con- tractors and not as employees. Furthermore, the request for negotiations is not for employees in an appropri- ate collective bargaining unit. The unit you propose contains less than all- the companies involved. In addition, as you know, bargaining has historically been not only with your Local No. 389 but also with Local No. 692 and recently with two more Locals which were formerly a part of 389 and 692, and the bargaining has been on be- half of the employees of all companies under the jurisdiction of those Locals. Therefore, your request to commence negotiations must be declined. Under date of November 30, Irving Helbling, an economist associated with the Unions' Counsel's law firm, wrote Dalany as follows: It appears that the previous correspondence has been fruitless in promoting an agreement concerning our desire for further negotiations. You will recall that at the conclusion of the 1956 negotiations the parties expressly left un- settled, and subject to further negotiations, the question of the Union's right to represent employee drivers as to the conditions under which such drivers lease equipment to the companies. To clarify any misunderstanding you may have, please be advised that VAN .& STORAGE DRIVERS UNION, LOCAL 389; GENERAL TRUCK DRIVERS, CHAUFFEURS, & HELPERS UNION, LOCAL 692; GENERAL TRUCK DRIVERS, WAREHOUSEMEN & HELPERS UNION, LOCAL 235; .and GENERAL TEAMSTERS, SALES DRIVERS, FOOD PROCESSORS, WAREHOUSEMEN & HELPERS UNION, LOCAL 871 request that your Association resume negotiations in behalf of your member firms in regard to the minimum conditions under which employee-drivers lease equipment to their employers, or may do so in the future. Any such conditions negotiated would govern the minimum conditions between your member firms and owner-driver employees who are presently, or who may in the future, lease equipment to the companies. It is our objective, through such negotiations, to protect the negotiated wage scale against the possible undermining through diminution of the owner-drivers' wages for driving which might result from a rental which does not cover his operating costs. If you have any question that our request to negotiate does not relate to a bargainable issue, we refer you to the decision of the Supreme Court of the United States in the matter of Local 24, Teamsters vs. Revel-Oliver, Vol. 3, L. Ed. 2d 312 (1959). If we do not hear from you or your authorized representative withii ter} (10) days from receipt of this letter, we will deem it a refusal oil yQyr part tg negotiate as to the matters mentioned above. Dalany replied to Helbling under date of December 10, as follows: The previous correspondence referred to in your letter dated November 30, 1959, concerns the same subject matter as that contained in your present letter and that correspondence sets forth the many reasons why your present request for negotiations must once again be denied. Nevertheless, I want to again call to your, attention the fact that I have no association and no authorization to deal with you concerning Owner-Drivers insofar as any leases or contracts concerning equipment which they might have with any employers. Such Owner-Drivers are independent contractors, not employees. Furthermore, your request for negotiations is not for employees in an ap- propriate bargaining unit. For one thing, it apparently includes National Van Lines, Inc. and as you know, that case is currently pending before the United States Court of Appeals. In no way do we admit the validity of any of your self-serving statements or other allegations contained in your letter, nor do we acknowledge that there has been a misunderstanding to the clear language expressed in your prior corre- spondence. Contrary to your present statements, that correspondence makes it clear that you aren't interested solely, in neeotiatine "minimum conditions," regardless of your now averred objective. In any event, your request must be declined for the various reasons stated. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nothing in the Revel Oliver case leads us to believe anything contrary to the statements we have already made. Under date of December 14, Helbling sent the following letter to Dalany: Thank you for your letter of December 10, 1959. While we did not ex- clude the employees of National Van Lines, Inc. from the group covered by our request of November 30, 1959, I am sure you realize that it is not possible at this time to negotiate for the employees of that company in view of the pending litigation. As I believe we made clear in our letter of November 30, 1959, we would like to conclude the negotiations, for employees of the company so that the contracts can be completed and signed. As it appears to be your position that the Association will not bargain in regard to the minimum conditions under which employee drivers lease equipment to the members of the Association, we must seek a resolution of this question by filing a charge with the National Labor Relations Board alleging that the Association refused to bargain on an issue which we think is clearly one that is a subject of mandatory collective bargaining. Under date of January 27, 1960, Helbling wrote Dalany as follows: As you know we have withdrawn the charge filed by us with the National Labor Relations Board so that we could have time to review the decision of the 7th Circuit in the National Van Lines Co. case. After having reviewed that decision we wish to advise you that Van & Storage Drivers Union, Local 389, General Truck Drivers, Chauffeurs, & tHelpers Union, Local 692; General Truck Drivers, Warehousemen & Helpers Union, Local 235; and General Teamsters, Sales Drivers, Food Processors, Warehousemen & Helpers Union, Local 871 request that your association re- sume negotiations in behalf of your member firms in regard to the minimum conditions under which employees of the member firms lease equipment to their employers, or may do so in the future. Any such conditions negotiated would govern the minimum conditions between your member firms and em- ployees classified as truck drivers, packers, craters, order fillers, checkers, ware- housemen, loaders, helpers, and working foremen who presently, or may in the future, lease equipment to the companies. We are making this request in order to protect the negotiated wage scale of these employees. If we do not hear from you or your authorized representative within five days from receipt of this letter, we will deem it a refusal on your part to negotiate as to the matters mentioned herein. Under date of February 2, Edwin H. Franzen, Esq., the Committee's counsel, wrote Helbling as follows: This is in response to your letter, dated January 27, 1960, directed to Mr. Ernest Dalany. Your demand for bargaining is essentially the same as contained in your prior demand, dated November 30, 1959, and the correspondence referred to therein, and for that reason we refer to and incorporate herein Mr. Dalany's replies to those demands, including his letter to you, dated December 10, 1959. For all of the reasons set forth in those replies, we hereby deny your request. Furthermore, the "association" to which you refer never has engaged in bargaining for the purposes requested in your letter, and, therefore, it would he impossible for such "association" to "resume" negotiations. On February 10, the Unions filed a refusal to bargain charge which gave rise to the instant proceeding. Lyon has executed a power of attorney to the Committee. Its wholly owned subsidiary, Lyon Van Lines, Inc., has since about 1948 leased tractor and trailer equipment under agreement with the owners of such equipment. From the begin- ning of such lease operations until June 1, 1960, the substantive terms of the leases respecting the equipment have been the same, varying only as to the amount of remuneration received under the lease. By the expressed terms of Lyon's lease agreements in effect prior to June 1, 1960, Lyon had: "exclusive possession, control and use" of the equipment when it was be&ng operated by or for Lyon; the "right to sub-lease [the equipmentl to car- riers with whom it has negotiated interline agreements" where the equipment was in the "exclusive possession, control and use of the sub-leasing carrier"; the right to require the lease driver to devote his equipment "exclusively to the service of [Lyon] in its transportation of goods, wares and merchandise, loading and un- MOVING STORAGE NEGOTIATING COMMITTEE, ETC. 397 loading the same and delivering to destination, in accordance with the shipping con- tracts or bills entered into by [Lyon] with its consignors or consignees and in con- nection therewith, comply with all rules and regulations and instructions of [Lyon]." Further, under the terms of the agreement the lease driver was to hire any labor required incident to pick up loading and delivering of the shipments at his own expense and such labor was in Lyon's "employ and under its direction and control." The lease driver, furthermore, was to personally drive his equipment exclusively unless unforeseen circumstances required substitute drivers, in which event Lyon was to be notified and "its approval obtained in advance of employment of any such substitute driver." The lease driver and all substitute drivers and helpers were "in [Lyon's] employ under its direction and control." In addition, the lease driver was to load, unload, and set up all furniture "in accordance with the tariffs, rules and regulations" of Lyon; was to receive from Lyon in full payment "for all services furnished by himself and employees under his supervision, and his motor vehicle equipment," 49 percent of transportation charges for tractor only, 54 percent of transportation charges for tractor plus semi- trailer, and 75 percent and 15 percent, respectively, of the applicable tariff rates for packing and unpacking. The lease was subject to cancellation at anytime upon the request of the lease driver or upon written notice of cancellation by Lyon. Moreover, the lease agreement provided that: Lyon would furnish at its own expense public liability and property damage insurance, while the lease driver would furnish fire. theft. and collision insurance in the amounts which Lyon specified: Lyon might charge the lease driver, at Lyon's discretion, $50 for claims for loss or damage to shipments; the lease driver, at his own expense, would keep his equip- ment in good condition and maintain it; and the lease driver would pay the cost of operation of the equipment, including property tax, fuel tax, excise and use tax, and vehicle tax as required by the States of California and Arizona, while Lyon would pay for all permits, certificates or franchises when necessary, including State licenses other than the vehicle licenses required by California and Arizona. While leasing equipment from these drivers, Lyon has considered and presently considers them as employees for the purposes of the collective bargaining agreement with the Unions, requiring the lease drivers to belong to the Unions under the union- security clause, paying them wages and daily subsistence at the rate called for by the collective-bargaming agreement, although charging these wages to the lease drivers' the share of the revenue earned under the lease agreement, paying social security taxes on the wages, making security fund payments and pension plan payments required for employees under the collective-bargaining agreement, making with- holding tax deductions on the wages paid the lease drivers, and treating the lease drivers in the same manner as it treats its hourly paid nonlease drivers, insofar as seniority, the company long-line dispatch system, and the company pension plan are concerned. Effective June 1, 1960, without notification or consultation with the Unions, Lyon presented its lease drivers with a new lease agreement different in some detail from its predecessor.9 The new agreement referred to Lyon as carrier and the lease driver as contractor, rather than referring to them as lessee and lessor as had been the case in the prior agreement. Furthermore, Lyon added a provision, to the effect that the parties intended to create by the new contract the relationship of carrier and independent contractor and not an employer-employee relationship, and that neither the con- tractor nor his employees are tc. be considered the employees of the carrier, insofar as the subject matter of this "contract is considered." The new agreement also provides: that Lyon "shall have such exclusive possession, control and use of [the lease-operator equipment] and shall assume such responsibility in respect thereto to the extent required by the rules and regulations in the Interstate Commerce Commission"; that Lyon "shall have the right to subcontract said equipment to other carriers with whom it has negotiated interline agreements"; that the lease operator "will devote said equipment to the service of [Lyon] in its transportation of goods, wares, and merchandise, loading and unloading the same and delivering to destina- tion in accordance with the shipping contracts or bills entered into by [Lyon] with its consignors or consignees; in connection therewith comply with all rules and regu- lations and instructions of [Lyon]"; that the lease operator "will be responsible for any labor required incident to pick-up loading and delivery of shipments. Such labor shall be in the [lease driver's] employ, under its direction and control and U It Is Lyon's contention that this new lease agreement was initiated to clarify the relationship between it and its lease drivers and also to reflect the long-standing practice between them. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at its own expense"; that in performing the lease the lease driver "shall direct the operation of its equipment in all respects and shall determine the method, means and manner of performing the contract, including such matters as choice as any law- ful routes, the number of drivers and helpers per unit of equipment, points of service of equipment, rest stops, etc."; that the lease driver "shall be solely re- sponsible for the direction and control of its drivers and helpers including their conforming to all rules and regulations of the Interstate Commerce Commission and all other regulatory bodies"; and that the lease drivers will be responsible for loading and unloading and setting up all furniture taken apart for shipping purposes "in accordance with the tariffs, rules and regulations." With respect to remuneration the new lease provides that the lease driver shall receive from Lyon, in full payment for "the services furnished by the driver, the contractor's employees and his motor vehicle equipment" an amount in accordance with a percent of revenue provisions contained in the old lease agreement. In addition to providing for its termination upon 30 days' written notice by the parties, the new lease generally requires: that Lyon will furnish, at its own expense, public liability and property damage insurance and cargo insurance while the lease driver will furnish fire, theft, collision, and other insurance; that Lyon may charge the lease driver up to $50 for any claim of loss or damage to shipments; that the lease driver will, at his own expense, maintain his equipment and pay daily operating costs, including property, fuel, highway use tax, resident vehicle tax and licenses, vehicle licenses required by the States of California and Arizona, whereas Lyon will obtain all California and Arizona permits, certificates, and franchises necessary to; the operation of the leased equipment. b. Concluding 'findings Upon the basis of the credited evidence, as epitomized above, and upon the record as a whole, the Trial Examiner is convinced, and finds, that the Committee and each employer member thereof who had given the committee a power of attorney to bargain collectively on its behalf with the Unions violated Section 8(a)(5) and (1) of the Act, by refusing to bargain collectively with the Unions respecting minimal' conditions under which the employees of the van and storage companies here in- volved lease equipment to said companies.10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Committee and its employer members set forth in section III, above, occurring in connection with the business operations of employer members of the Committee described in section I, above, have a- close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and, such, of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Committee and its employer-members have engaged in certain unfair labor practices, it will ,be recommended that they be ordered to cease and desist therefrom and take certain affirmative action . designed to effectuate the policies of the Act. - In the opinion of the Trial Examiner it is appropriate that the Committee and its employer-members be required to bargain with the Unions as the exclusive bargaining representatives of the employees in the appropriate unit with respect to, minimal conditions under which employees lease equipment to the Committee's employer-members. The Trial Examiner is further of the opinion that individual agreements between certain of the Committee's employer-members and certain lease drivers, dealing with terms and conditions of employment , and a collective- bargaining contract between those employers and the Unions as exclusive bargaining 'representatives, are mutually inconsistent conceptions. The individual contracts- "obviously must yield or the Act would be reduced to a futility ." 11 As a con- sequence , it is necessary that the Committee and its employer-members be ordered to cease giving effect to the individual lease agreements. 10 Smith's Van & Transport Company, Inc, and Smith's Transfer and Storage Company,. Inc, 126 NLRB 1059 -- 11 J. I. Case Company v. N L R.B., 321 U.S. 322, 337. BEISER AVIATION CORPORATION 399 CONCLUSIONS OF LAW 1. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 2. All truckdrivers, packers, craters, order fillers, checkers, warehousemen, loaders, helpers, and working foremen employed by the employer-members of the Committee and within the jurisdiction of the Unions, excluding all other personnel constitute, and at all times material constituted , a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 3. At all times material since July 30, 1956, the Unions have been the exclusive bargaining representatives of all employees in the aforesaid unit within the meaning, of Section 9(a) of the Act. 4. By failing to bargain collectively with the Unions as the exclusive bargaining representatives of the employees in the appropriate unit and by entering into indi- vidual contracts with the lease drivers, the Committee and its employer-members have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Beiser Aviation Corporation and Millwright and Machinery Erectors Local Union No. 2219 , of the United Brotherhood of Carpenters and Joiners of America , AFL-CIO and Moore Air Base Independent Employees Association, Party to the Contract. Case No. 23-CA-970. January 23, 1962 DECISION AND ORDER On August 24, 1960, Trial Examiner Vincent M. Rotolo. 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 Intermediate Report attached hereto. Thereafter, the General Counsel and the. Respondent filed exceptions to the Intermediate Report. The Gen- eral Counsel filed a brief in support of his exceptions and partly in support of the Intermediate Report and Respondent filed a brief in support of its exceptions. Pursuant to the provisions of Section 3(b) of the Act,, the Board has delegated its powers in connection with this case to a three member panel [Members Leedom, Fanning, and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner with the following additions and modifications. 135 NLRB No. 33.