Reisch Trucking and Transportation Co., Inc.

REISCH TRUCKING AND TRANSPORTATION CO., INC. 953 Reisch Trucking and Transportation Co., Inc.' and Freight Drivers and Helpers Union No. 557, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner.' Case No. 5-RC-4137. July 30, 1963 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before William M. Ashmore, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Rodgers, Leedom, and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit of over-the-road drivers composed of two owner-operator tractor drivers, Harry Edwards and Herman Burnick, and a driver named Leonard Willard, who is retained, by Theodor Schell, owner of a third tractor, at the Employer's Baltimore, Maryland, terminal, excluding office clerical employees, guards, watch- men, and supervisors as defined in the Act. The Employer, engaged in the interstate transportation of materials,' contends that the over-the- road drivers are independent contractors and moves the Board to dis- miss the petition. The over-the-road drivers sought operate three tractors to haul company-owned or company-controlled trailers from the Baltimore terminal to the Company's Pennsauken, New Jersey, terminal and in turn haul trailers back to Baltimore from there. These trips are made at night. The trailers are sealed and the drivers do not engage in any pickup or delivery of goods and have no contact with the Company's Hereinafter referred to as Employer and/or Company. 2 Hereinafter referred to as Petitioner and/or Union. 3 The Employer is a motortruck common carrier with terminals in New York, New Jersey, Pennsylvania, and Maryland The terminal in question is located at 913 North Point Road, Baltimore At present there is in effect a contract, with the Petitioner herein, on a multiemployer basis , which covers 15 drivers , at the Baltimore terminal , engaged strictly in local cartage work in the Baltimore-Washington area. These city drivers are not the object of the petition. The Employer conceded that they are employees within the mean- ing of the Act. 143 NLRB No. 104. 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD customers. The tractor owners are responsible for any damage to the company-owned or company-controlled trailers. The drivers receive a trip slip and manifest for each trailer hauled and must maintain a log on each trip. Under Interstate Commerce Commission regulations, the tractors are leased to the Employer for his exclusive use. The relation between the Company and owners of the tractors is covered by a "Standard Lease" which has been in use since 1956. The lease is for a period of 30 days and is automatically renewed fora like period of time unless terminated on 30 days notice by either party.' Under the terms of the lease the owner of the tractor undertakes to provide such vehicle as the Company requires it, together with a competent driver, to perform such carriage as is required. The owner is responsible for setting and paying the wages of any driver, who it is understood is to remain an employee of the owner and not the Company. The owner is responsible for keeping the vehicle in good operating condition and agrees to furnish all materials necessary for that purpose; the Company is re- lieved of all liability to the owner for any damage caused to the tractor while the tractor is operated, by the owner or his designated driver. The Company pays for the public liability and property-damage in- surance on the tractor, but this does not extend to "bob tailing" (travel- ing without a trailer except when requested by the Company), but the owners are responsible to the Company for causing deliberate or reck- less damage to the trailers. All taxes of any nature whatsoever, and all license and fines that may be assessed against the tractor while same is being used by the Company, where such fines are caused through improper equipment and/or operation of the tractor, are paid by the Company. The Company is responsible for compliance with all safety regulations of the Interstate Commerce Commission, and must properly and correctly identify the vehicle under the requirements of the Interstate Commerce Commission regulations. Unlike the city drivers, the owner-drivers do not participate in any safety program, nor are they subject to the company rules which apply to the Company's other drivers; they are governed solely by the Inter- state Commerce Commission Rules and Regulations. The lease is further augmented by the practices and understandings of the parties. These are as follows : The owner purchases and pays for the entire cost of the tractor, and the Company in no way partici- pates therein. The owner pays for the cost of license in Maryland but the Company pays for the licenses in other jurisdictions. The owner pays for collision, fire, and, theft insurance; the Company pays for cargo insurance. The owner pays the driver, purchases gasoline and oil, and pays for all maintenance and replacement of parts on its trac- tor. Neither the company shop nor its mechanics make repairs or There is evidence that a number of owners have terminated such leases. REISCH TRUCKING AND TRANSPORTATION CO., INC. 955 replace parts on the tractors. However, the Company does conduct periodic inspection of the tractors. The maintenance on the tractors is performed where the owner desires. Generally, when not in use, the owners park their vehicles at an independent garage.' The Company in no manner curtails the owner's freedom to use the tractor as col- lateral or security. The compensation paid owners for the use of their vehicles and services is a matter left to negotiations of the parties. At present the tractor owner receives $50 plus tolls, per round trip between Balti- more and the Pennsauken terminal. The Employer records the trip and pays the owner once a week. However, it appears that in 1956, the Company and owners agreed that the Company would pay $50 for the Pennsauken run, but at that time the owners then were assuming the tolls, and other incidental road expenses. These terms have been. amended several times so that the Company now pays for all bridge tolls and for the New Jersey Turnpike only when the Company specifically asks the owner to use it. In addition, the Company now pays $2 per hour whenever the equipment is held in Pennsauken for longer than 2 hours." Occasionally, the tractor driver is requested to make city deliveries or pickup of trailers which they do. For this they receive $2 per drop and $5 a load pickup, and an additional 22¢ per mile off the regular route. However, the owner-drivers are free to refuse these jobs as they are free to refuse the Pennsauken runs, and on several occasions have rejected such runs without reprisal or threat thereof. Owner-drivers may request, and obtain, delays in dispatch time; switch dispatch times with one another, and regularly appoint substitutes for themselves. It is the practice of the Company's central dispatch office in Penn- sauken, New Jersey, to instruct the Baltimore terminal when and which trailers are to move and to have the dispatcher at the Baltimore terminal call the owner-drivers on an "equipment priority" basis ap- proximately an hour before the trailer is scheduled to leave. If the owner of the tractor is not to drive, the dispatcher on instructions from the owner will call the driver designated by the owner. The Company has no responsibility to, and does not, provide drivers for the owners. The drivers normally take U.S. Routes 40 and 130 to Pennsauken unless directed to take the New Jersey Turnpike. If they take the Turnpike on their own, which they frequently do to save time, they pay the tolls; however, if asked by the Company, then the Company pays. All other tolls are paid by the Company. The trip between Baltimore s At the urging of the Union's president, one owner is permitted to park his vehicle on the Company's lot. 9 For a period of time the tractors were used in the daytime and driven by the Em- ployer's city drivers. This was discontinued at the insistence of the tractor owners be- cause of the execessive maintenance and repair costs to the owners caused by the city drivers. For that service the owners had received $14 per day and they paid for all the fuel and maintenance. 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Pennsauken is approximately 3 hours each way depending upon traffic and road conditions. While the Company wishes the trip to be made as quickly as possible, it has not taken any disciplinary action or reprimanded the driver where there have been delays. The drivers are free to stop when or where they wish for fuel and food. The Company exercises no disciplinary authority over drivers and has no authority to hire or fire any driver which a tractor owner may employ. If it finds a particular driver's conduct objectionable, it may lodge a complaint with the owner of the vehicle, but it is the owner who decides what disciplinary action, if any, is to be taken. All pay and conditions of employment of drivers is a matter of agreement between the tractor owner and the driver he employs. The Company does not withhold any State or Federal income tax, or social security tax from the sums paid owners or their drivers, nor does it cover them for workman's compensation. Owners and their drivers receive no vacation or holiday pay from the Company and do not participate in welfare plans or other company benefits enjoyed by its employees. As the Board has frequently held? the determination of whether an individual is an independent contractor or an employee under the amended Act requires the application of the common law "right of control" test. Under this test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end. The resolution of this question de- pends on the facts of each case and no one factor is determinative.' On the entire record in this case, we are of the opinion that the owner- drivers of leased tractors are independent contractors, rather than employees of the Company. We note particularly the bona fide and absolute ownership of the trucks by the owners. Such ownership of the facilities to be used gives rise to an inference of control over the manner of performance which is associated with the status of an independent contractor. Also significant in demonstrating the entrepreneurial nature of the owners is the fact that owners determine whether to drive the tractors them- selves or to employ others to do so. Indeed, the Company does not assign a driver to the tractor in the absence of the owner. Moreover, the owners can control in part their profit or loss not only by deter- mining whether or not to drive themselves, but also by such matters as their diligence and efficiency in the repair and maintenance of trucks, which are solely their responsibility and which can be per- formed by persons of their own choosing. ' Hugh Major Truck Service, 124 NLRB 1387, 1389; Oklahoma Trailer Convoy, Inc. 99 NLRB 1019, 1022. 6 Ibid. GRANADA MILLS, INC. 957 The control exercised by the Company over the work of owners and drivers is for the purpose of complying with the rules and regulations of the Interstate Commerce Commission and is not inconsistent with the independent contractor relationship. That the owners retain substantial independence in their operations is clearly revealed by their virtual freedom in deciding when or whether they will take an assignment, in selecting routes of travel, in fixing the time of delivery and return, in determining whether they or others will drive their vehicles, and by their freedom to select their own maintenance facilities. Moreover, the parties herein expressly indicated their intent that the owners and drivers of leased tractors were not to be employees of the Company. Thus, the Company does not withhold income or social security taxes, or pay for workman's compensation for the drivers of the leased tractors, or provide the employment benefits of its own employees to the owners and their drivers, nor are its rules and regulations given to or applied to the over-the-road drivers. If bonds are required to be posted, the owners usually must furnish them as they must furnish the license plates of their home State. In view of the foregoing and the entire record as a whole we find that the owner-drivers of the leased tractors are independent con- tractors rather than employees and that the Donowner- drivers are employees of the independent contractors and not the Company. Ac- cordingly, as there are no employees of the Employer in the unit requested, we shall grant the Employer's motion and dismiss the peti- tion herein. [The Board dismissed the petition]. Granada Mills, Inc. and International Ladies Garment Workers Union, Local 600, AFL-CIO. Case No. 24-C.4-1712. July 31, 1963 DECISION AND ORDER On May 16, 1963, Trial Examiner Lee J. Best issued his Inter- mediate 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. 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 [Chairman McCulloch and Members Rodgers and Fanning]. 143 NLRB No. 102.