Manpower, Inc.

MANPOWER, INC. 287 Manpower, Inc., of Shelby County and Armour Grocery Products Co., Division of Armour and Company and General Drivers, Salesmen and Warehousemen's Local Union No. 984, an affiliate of The International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Petioner. Case 26-RC-2796. May 2,1967 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Kay Fisher of the National Labor Relations Board. After the closing of the hearing, the Regional Director, in conformity with National Labor Relations Board's Rules and Regulations, Series 8, as amended, elected to transfer the case to the Board for decision. The Hearing Officer's rulings are free from prejudicial error and are hereby affirmed. The Employers and the Petitioner filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the entire record in this case, the Board finds: 1. Manpower, Inc., of Shelby County, herein referred to as Manpower, is a Tennessee corporation, engaged in the business of supplying temporary help and business services to business firms. The parties stipulated that during the preceding 12 months, in the course and conduct of its business, Manpower supplied services to business firms in the State of Tennessee in the value of more than $50,000, which business firms, during the same period, shipped from Tennessee to points outside of Tennessee, goods and products in excess of $50,000. Armour and Company is a Delaware corporation engaged in meatpacking, industrial, agricultural, chemical, and other manufacturing activities throughout the United States. Armour Grocery Products Company, a Division of Armour and Company, herein referred to as Armour, the only plant involved in this proceeding, is engaged in the manufacture of floor wax and cleaner. The parties stipulated that during the preceding 12-month period, Armour shipped from this plant into States other than Tennessee, goods and products in excess of $50,000. Both Manpower and Armour stipulated that they are engaged in interstate commerce and subject to the Board's jurisdiction, and we so find. Pursuant to an oral agreement, Manpower has supplied truckdrivers to Armour since March 1966. Petitioner seeks a unit of over-the-road truckdrivers which it contends are employed jointly by Manpower and Armour. Both Manpower and Armour claim that these drivers are employed solely by Manpower and that Manpower has not declined to recognize Petitioner. In November 1965, Armour acquired the plant in question from E. L. Bruce and Company, herein known as Bruce. Bruce had several drivers on its own payroll and also used drivers supplied by Manpower. Upon initial operation of the plant, Armour employed one truckdriver who had been employed by Bruce. The driver ultimately went into the warehouse when the one piece of trucking equipment also acquired from Bruce had been disposed of. Until about March 1966, Armour's distribution of products was accomplished primarily by common carrier. Since that date until the time of the hearing, Manpower had supplied about 15 drivers to Armour, approximately 7 of whom had worked steadily for Armour since the first few months that Manpower and Armour operated under their oral agreement. Approximately three of these drivers had previously been assigned to Bruce by Manpower. All of the over-the-road drivers working at Armour are paid by Manpower. As mentioned above, Manpower supplies these truckdrivers to Armour pursuant to an oral agreement which is terminable at will by either party.' Armour pays Manpower an agreed contract rate based on the number of miles driven by the drivers. The drivers themselves are compensated by Manpower based on a slip containing the total mileage driven plus any miscellaneous expenses, and signed by the driver and a representative of Armour. Manpower has sole discretion as to the rates of the drivers. Manpower deducts income taxes and social security and provides workmen's compensation for the drivers. Manpower advances money to its drivers before trips taken for Armour for out-of-pocket expenses and if additional money is needed the drivers wire Manpower. Although only Manpower can hire and fire the drivers, Armour can request certain drivers, a request which will be accommodated if possible, and can refuse • to accept the driver referred to it by Manpower. Armour gives a test run to the drivers in order to determine their qualifications and furnishes them with a safety manual. Armour also conducted two safety meetings.' Armour's dispatcher informs the drivers of their reporting time, assigns them their runs, and prepares a manifest giving the drivers ' This agreement has been reduced to writing, although it has another company were in attendance , at the second meeting, only not been executed 2 At the first meeting two Manpower drivers working for drivers working for Armour were present 164 NLRB No. 37 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their time of departure, approximate time of arrival, stops, pickups, and deliveries, and approximate day of return; in addition, Armour's dispatcher receives drivers complaints and has disciplined a driver. Drivers report to Manpower only to get paid, usually at the end of a run. Of the seven drivers who have consistently been driving for Armour, only one had made a trip for another company and then only on one occasion. All paperwork completed by the drivers bears Armour's name; the drivers have a bulletin board at the Armour plant; and they regard Armour's vice president for traffic as their "big boss." The above evidence indicates that both Manpower and Armour take part in determining matters governing essential terms and conditions of employment of these drivers. Manpower hires and fires the drivers, determines their rates of pay, and makes contributions and deductions for them as required by law. Armour's use of the drivers indicates that it has control over these employees consistent with its status as an employer along with Manpower.3 Armour tests the drivers referred to them to determine their qualifications and has the right to refuse any driver supplied by Manpower. Armour gives the drivers safety instruction, provides them with a safety manual , establishes the work schedule, assigns the drivers to given runs, generally supervises the drivers in the course of their employment, and in effect holds itself out to the drivers as their employer. In addition, Armour signs the slip containing the mileage driven which the drivers then present to Manpower for payment. In view of the foregoing, we find that Manpower and Armour are joint employers of the drivers supplied by Manpower to Armour. 2. The labor organization involved claims to represent certain employees of the Employer. 3. Armour contends that if the drivers are found to be its employees, that the collective- bargaining agreement in effect between Armour and Local 3148, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Local 3148, is a bar to the proceeding and the petition must be dismissed. The collective-bargaining agreement in question covers the production, maintenance, and warehouse employees of Armour. Prior to the acquisition by Armour, the employees of Bruce, including the drivers directly employed by it, were covered by a master agreement with the Carpenters Union. The drivers of Manpower's payroll that were supplied to Bruce were not covered by that contract. When Armour took over from Bruce, it employed one driver to operate the single piece of trucking equipment it purchased from 3 See The Greyhound Corporation, 153 NLRB 1488. 4 Sterling Faucet Company, 119 N LR B 1225 Bruce. This driver was covered by the contract with Local 3148 and has since moved into the warehouse. Sometime after Manpower began supplying drivers to Armour in March 1966, Local 3148 made a claim to represent these drivers under its agreement with Armour which commenced in December 1965. Armour's position in response to this demand was that the drivers were not its employees and there was no basis for discussion concerning representation. While it is true that the fact that a new category or operation has not been specifically named in the recognition clause of the contract asserted as a bar is not controlling,4 the Board has consistently held that to serve as a bar, a contract must clearly by its terms encompass the employees sought.5 There is no evidence in the record or in the terms of the contract with Local 3148 to indicate that the parties intended to include the over-the-road drivers under the agreement. When the contract was executed, Armour's driving was done by common carrier and it had only one driver on its payroll who soon moved into the warehouse. Manpower drivers did not begin working for Armour until 3 months after the execution of the contract. Armour's answer to Local 3148 that the drivers are not its employees and there was no basis for discussing representation would be inconsistent with a finding that it intended to include them under the contract. The only past history of bargaining shows that the drivers supplied by Manpower to Bruce were not covered under Bruce's master agreement with the Carpenters Union. Armour employs no other drivers and there is very little contact between the drivers and Armour's other employees. Thus, neither the terms of the contract, the past bargaining history, nor Armour's present bargaining relationship with Local 3148 evidence an intent to include the drivers under the contract. We therefore find that Armour's contract with Local 3148 is not a bar to the election. Accordingly, we find that a question affecting commerce exists concerning the representation of the employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. Petitioner seeks a unit of over-the-road drivers employed jointly by Armour and Manpower. Manpower's position is that it would recognize and bargain with Petitioner for the unit requested in the petition. Armour's contentions that it is not an employer of these drivers, and, in the alternative, that if the Board determines that it is an employer of the drivers its contract with Local 3148 acts as a bar, have been disposed of. Accordingly, we find that the following employees of the Joint Employers, Armour and Manpower, constitute an appropriate 5 RCA Communications, Inc., 154 NLRB 34 MANPOWER, INC. 289 unit for the purposes of collective bargaining within watchmen, guards, and supervisors as defined in the the meaning of Section 9(b) of the Act: Act. 6 All over-the-road drivers employed jointly by Manpower and Armour, excluding all production [Text of Direction of Election omitted from and maintenance employees, clerical employees, publication.7] 6 The unit appears as amended at the hearing . No extension of time to file this list shall be granted by the 7 An election eligibility list, containing the names and Regional Director except in extraordinary circumstances Failure addresses of all the eligible voters, must be filed by the Employer to comply with this requirement shall be grounds for setting aside with the Regional Director for Region 26 within 7 days after the the election whenever proper objections are filed . Excelsior date of this Decision and Direction of Election The Regional Underwear Inc , 156 NLRB 1236 Director shall make the list available to all parties to the election.