Contractor Members of the Asson., Contractors of California, Inc.

T:'"!CTnITC n(i n ATl'%iTT A TI AUIrD D I AT'l'lQN RInAARn 686 LOSiO OIA I Associated General Contractors of California, Inc.; and Engineering and Grading Contractors Associa- tion of California, Inc. and Associated Independent Owner Operators, Inc. and Teamsters Local Union Nos. 94, 137, et al., IBT, and Heavy, Highway, Building and Construction Teamsters Committee for Northern California, Parties to the Contract Associated General Contractors of California, Inc.; and Engineering and Grading Contractors Associa- tion of California, Inc. and California Dump Truck Owners Association and Teamsters Local Union Nos. 94, 137, et al., IBT, and Heavy, Highway, Building and Construction Teamsters Committee for Northern California, Parties to the Contract. Associated General Contractors of California, Inc.; the Building Industry Association of California, Inc.; and Engineering and Grading Contractors As- sociation, Inc. and Associated Independent Owners Association and California Dump Truck Owners Association and Joint Council of Teamsters No. 42; Teamsters, Chauffeurs, Warehousemen and Helpers Local 87; et al., Parties to the Contract Contractor Members of the Associated General Con- tractors of California, Inc. and A. R. Kramer, Peti- tioner and Teamsters Local Union Nos. 94, 137, et al., International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Contractor Members of the Associated General Con- tractors of California, Inc.; the Building Industry Association of California, Inc.; and Engineering and Grading Contractors Association and Neal, Hecker and James E. Bays, Petitioners and Teamsters Lo- cal Union Nos. 42, 87, et al., International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 20-CA-9442, 20-CA- 9565, 20-CA-9810, 20-CA-9811, 20-RD-721, and 21-RD-1008 December 8, 1978 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 23, 1975, the National Labor Rela- tions Board issued its Decision and Order in the above-entitled unfair labor practice proceeding, 1 220 NLRB 540. For purposes of this Decision, we hereby consolidate Cases 20-RD-721 and 21 RD-1008 with the instant proceeding. The origi- finding, in agreement with the Administrative Law Judge, with a minor modification,2 that the Em- ployers had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(a)(2) and (1) of the National Labor Relations Act, as amended, and ordering them to cease and desist therefrom and take certain affirmative action de- signed to effectuate the purposes of the Act. In sum, the Board, by adopting the Administrative Law Judge's Decision, found that the northern Cali- fornia Employers and the southern California Em- ployers had violated Section 8(a)(2) and (1) of the Act by entering into, maintaining, and enforcing the 1974 contracts with the northern and southern Cali- fornia Unions, respectively, while there existed a real question concerning representation. In so finding, the Administrative Law Judge con- cluded, contrary to the contentions of the Employers and the Unions, that the showings of interest sup- porting the petitions were strictly an administrative matter with the Board and were not subject to attack in an unfair labor practice case. The Administrative Law Judge also found, in accordance with the Board's determination in the representation cases, that those drivers operating as owner-operators were employees within the meaning of the Act rather than independent contractors. Upon a petition for enforcement and a cross-peti- tion for review, the Court of Appeals for the Ninth Circuit denied enforcement of the Board's Order be- cause it found, contrary to the Board, that the owner- operators were independent contractors who were not properly a part of the unit. Accordingly, the court remanded the case to the Board for further proceedings consistent with its decision.' For purposes of administrative consistency, we have consolidated the representation cases with the unfair labor practice proceeding and in light of the court's opinion shall dismiss the complaint and the underlying petitions. Accordingly, and pursuant to the law of the case, having accepted the remand, we conclude that the owner-operators who drive the trucks herein are independent contractors and not employees. Because of this conclusion, we find that the unit herein is substantially different from that originally petitioned for and thus no real question concerning representation is thereby raised. nal Decision and Order in the representation cases is reported at 201 NLRB 311 (1973), and the separate Supplemental Decisions and Directions of Elections at 209 NLRB 363 and 209 NLRB 366 (1974). 2 In that Decision, the panel of Chairman Murphy and Members Fanning and Jenkins disavowed the Administrative Law Judge's opinion of when Sec. 8(aX2) is applicable to an 8(f) contract. 3 564 F.2d 271 (1977). L SLADV\R Are I IVIsiX YVrIY ASSOCIATED GENERAL CONTRACTORS OF CALIF. INC. 687 ORDER IT IS FURTHER ORDERED that our Decisions in Cases 20-RD-721 and 21-RD-1008, reported at 201 It is hereby ordered that the complaint be, and it NLRB 311. 209 NLRB 363, and 209 NLRB 366 be hereby is, dismissed. vacated and that the petitions be, and they hereby are, dismissed.