National Freight, Inc.

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Freight, Inc. and Local Union No. 445, International Brotherhood of Teamsters , Chauffeurs,- Warehousemen and Helpers of America, Petitioner. Vase No. P-RC-12626. Febru- - ary 26, 1964 DECISION ON REVIEW AND DIRECTION OF ELECTION' On May 31, 1963, the Regional Director for -the Second Region is- sued a Decision and Order in the above-entitled proceeding dismissing the petition on the ground, that the, proposed unit of owner-drivers and nonowner-drivers was inapp`ropria`te' in"that all the individuals involved therein were either independent contractors or employees of independent contractors. Thereafter, the Petitioner, in accordance with Section 102.67 of the Board's--Rules an&Regulations, Series 8, as amended, filed with the Board a request for review of, such De- cision and Order. The Employer, filed a statement in opposition to the request for review. The Board by telegraphic order dated July 19, 1963, granted the request for review. Thereafter,, the Employer and the Petitioner filed briefs. - The Board has considered the entire record in this case, and makes the following findings : - - At the Orangeburg terminal the Employer, National Freight, Inc., is engaged exclusively in hauling for the Glenshaw Glass Company with which it has the relationship of common carrier and shipper. The Employer has its own trailers, but the entire fleet of tractors used at its Orangeburg operation are leased from nine individual' lessors, herein called "Owners," who own one or more of these vehicles. The drivers of- the Orangeburg fleet consists of (1) owner-drivers, who own a single tractor which they drive-and lease to the Employer; (2) multiple owner-drivers who own more than 1 tractor- leased to the Employer, 1 of which they drive; and (3) 50 to 60 nonowner-drivers who drive tractors leased to the Employer. All work is assigned by the Employer's dispatcher who notifies the Owners in the evening what their loads will be for the following day. In turn, Owners with multiple equipment issue appropriate instruc- tions to'the drivers of their respective tractors. All drivers are re- quired to pick up their loads at a time and place designated by the dispatcher. Upon completion of a delivery, they are required to tele- phone the Employer's nearest terminal for additional instructions. Although they may refuse an assignment, such refusal is an exception rather than general practice. No directions are given regarding roads or routes, and drivers are permitted to park their tractors when not in 146 NLRB No. 17. - NATIONAL FREIGHT, INC. 145 use wherever they choose. However, they are not permitted to solicit outside work and leased tractors are for the exclusive use of the Em- ployer. All drivers are required to furnish daily "log sheets" and equipment reports to the Employer. When they begin work each driver is given, an identification card which lists his employer as National Freight, Inc., and a packet of instructions detailing pro- cedures to be followed in the event of an accident. All Owners are compensated for the use of their equipment at a trip rate unilaterally established by the Employer in accordance with a predetermined rate schedule. Although, Owners theoretically have an option of buying their own insurance, they are all in fact covered by a master policy maintained by the Employer with the premiums deducted by, the Employer from gross. earnings at ,the rate of 5 percent per week. Owners are free to choose where to buy gasoline, oil, and tires, and to have repairs made, but repair work is generally done at the Employer's Vineland repair shop. The Employer pro- vides a maintenance escrow for each Owner which is funded by a weekly deduction of 3 percent from gross earnings. This is done with- out any written authorization by the Owner. The Employer also ad- vances sums not exceeding $275 for maintenance purposes. At the time the Owners sign leases, they fill out the Employer's standard application for employment forms and are required to take certain road and vision tests. The nonowner-drivers are required to do likewise. The Employer checks all references and has the right to reject drivers. All personnel and payroll records are maintained at the Employer's main office. Although there is no training program for drivers or a requirement to wear uniforms,, about a year ago the Employer instituted a program of giving parts of uniforms to all drivers for timely deliveries and for careful handling of freight. The nonowner-drivers are hired by the respective Owners although, as noted above, the Employer has a right to reject drivers. The drivers negotiate their wages with the Owners who make deductions for social security and income tax, and provide for fringe,benefits if any. The Employer can require the Owner to use helpers, depending on the nature of the trip or load. Although the Employer can discipline drivers by suspension for late deliveries and other improper conduct, the Owners have the power to discharge, assign, and trans- fer drivers from one tractor to another without the approval of the Employer. At various times, when they are not driving, the dis- patcher has requested both the Owners and nonowner-drivers to move trailers in and out of the loading docks. Whether. or not the owner-drivers and the nonowner-drivers here sought are employees of the Employer involves the application of the 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD common law "right of control" test.' If the'recipient of the services in question has a right to control not only the end to be achieved but also the means to be used in reaching such result, an employer relationship exists as a matter of law; otherwise there exists an inde- pendent contractor relationship. The application of this principle is not a mechanical one in any case, but requires a careful balancing of all factors bearing on the relationship. While certain factors in the instant case suggest in isolation that the Owners are independent contractors, the record as a whole con- vinces us that the Employer in fact retains sufficient control over their activities to warrant a finding of the existence of the employee- employer relationship. We note particularly the following circum- stances: (1) The Employer assigns loads with detailed instructions as to delivery and requires the furnishing of daily log sheets and frequent equipment reports; (2) on return trips Owners are not per- mitted to solicit or obtain return loads without the approval of the Employer; (3) the lease is in fact terminable at the will of the Em- ployer; (4) drivers are given Employer identification cards and de- tailed instructions of procedure in the event of an ,accident; (5) .as in the case of admitted -employees and drivers for other terminals, all Orangeburg drivers are required to fill out application for employ- ment forms and take the Employer's qualifying driving tests; (6) the Employer may reject any drivers selected by Owners; (7) com- pensation for the Owner is unilaterally determined by the Employer on the basis of a predetermined rate schedule which is generally ac- cepted by the Owner without question; (8) Owners are in fact covered by the Employer's master insurance policy;' (9) the Employer with- out written' authorization withholds a portion of the Owners' gross earnings to insure payment of the latter's operating and maintenance expenses and makes limited advances to Owners for maintenance pur- poses; (10) an incentive plan is maintained by the Employer to en- courage safe driving and timely deliveries, and (11) the Employer's dispatcher has the authority to request drivers to move trailers in and out of the loading docks. In view of the foregoing and on the basis of the entire record, we find that the owner-drivers and nonowner-drivers are employees of the Employer within the meaning of the Act. Although we are satis- fied that the multiple owner-drivers are not independent contractors under the common law test, an issue arises as to whether they are supervisors or employees within the meaning of the Act. The record 1 See, e.g., Bowman Transportation, Inc., 142 NLRB 1093 ; Reisch Trucking and Trans- portation Go, Inc., 143 NLRB 953 ; Western Nebraska Transport Service, Division of Consolidated Freightways, 144 NLRB 301; and Chemical Leaman Tank Lames, Inc, 146 NLRB 148, issued on the same day as the instant case. NATIONAL FREIGHT, INC. 147 shows that these individuals have and exercise the power to hire drivers subject to the approval of the Employer and to discharge them. It also appears that the multiple owner-drivers assign, trans- fer, and responsibly direct drivers. We are satisfied that the fore- going supervisory authority is exercised not only for the purpose of protecting the equipment involved, but also as an integral part of the Employer's business operations. In these circumstances and especi- ally as the multiple owner-driver has effective authority with respect to the tenure of nonowner-drivers whom we have found to be em- ployees of the Employer, we find that the multiple owner-drivers are supervisors within the meaning of the Act. Accordingly, we shall exclude them from the Unit .2 Accordingly, we find that the following employees at the Em- ployer's Orangeburg, New York, station constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All owner-drivers and nonowner-drivers operating under a lease agreement, but excluding the dispatcher,' the multiple owner-drivers, all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEnoM, dissenting : Unlike my colleagues, I would sustain the Regional Director's find- ing that the owner-drivers who lease trucks to National Freight, Inc., are independent contractors, and not employees of the lessee, and that the nonowner-drivers of these leased vehicles are the employees of the lessors. The facts in this case are similar in all material respects to those in Chemical Leaman Tank Lines, Inc., 146 NLRB 148, issued to- day, in which I also dissented. I attach no controlling significance to the fact that the owner-drivers in this case are compensated on the 2 See Deaton Truck Lines , Inc., 143 NLRB 1372, and Chemical Leaman Tank Lines, Inc, supra. Member Leedom would find, for the reasons set forth in his dissent herein, that the owners are independent contractors and that the, nonowner-drivers are their em- ployees As such , he would exclude them from any unit found appropriate. Member Brown agrees that the owner-drivers and nonowner-drivers are employees but disagrees that the multiple owner-drivers are supervisors. He finds that the record clearly Indicates that the multiple owner-drivers are subject to the same degree and manner of control over the means as well as the result of the work as nonowner -drivers and that they share the same community of interests and working conditions. In his opinion, the direction and authority they exercise over drivers of leased equipment are for the protection of their leased property and are not in the interest of the Employer. s We find that the dispatcher responsibly directs the work of the drivers and in addition, because of the nature of his work, has little community of interest with employees in- eluded In the unit. We therefore exclude him. See Overnite Transportation Company, 128 NLRB 723, 724. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis of a trip rate determined by the lessee's rate schedule, as com- pared to a percentage of the gross realized on each haul, in that case. I am satisfied that because the owner-drivers here make the same 'investment, pay virtually the same costs, and take similar risks, their opportunities for increasing their profits by the use of their own judgment are not significantly diminished by their method of compensation. Moreover, the owner-drivers' relationship to their drivers is virtually identical to that in the Chemical Leaman Tank Lines case. As I would therefore find, for the reasons given in my dissent in that case, that the owner-drivers are independent contrac- tors and that the nonowner-drivers are their employees, it follows that the individuals in both groups are not employees of the Employer in this proceeding, and the Regional Director properly dismissed the petition. MEMBER JENKINB took no part in the consideration of the' above Decision on Review and Direction of Election. Chemical Leaman Tank Lines, Inc. and Truck Drivers Local No. 348, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Peti- tioner. Case No. 8-RC,-5019. February 26, 196. DECISION ON REVIEW AND DIRECTION OF ELECTION On April 8, 1963, the Regional Director for the Eighth Region issued a Decision and Order in the above-entitled proceeding finding that all the drivers sought by the Petitioner, except three, were either independent contractors or the employees of independent contractors and therefore not employees of the Employer. With respect to the three individuals mentioned above, he found that two were tem- porary employees and that all parties agreed that the third was an employee. On the basis of these findings, the Regional Director concluded that since there existed only a one-man unit, no question of representation was presented. Accordingly, he dismissed the petition. Thereafter, the Petitioner, in accordance with Section 102.67 of the Rules and Regulations, Series 8, as amended, filed with the Board a request for review of such Decision and Order. The Em- ployer filed a statement in opposition to the request for review. The Board by telegraphic order dated May 2, 1963, granted the request for review. The Employer filed a motion to present its views in oral argument as to why the Petitioner's request should be denied. 146 NLRB No. 18.