Steel City Transport, Inc.

STEEL CITY TRANSPORT Steel City Transport, Inc. and General Teamsters, Chauffeurs and Helpers Local 249, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 6--CA-3710 June 30, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND Z AGORIA On April 26, 1967, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding. finding that the Respondent had en- gaged 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 Trial Examiner 's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the General Counsel filed cross-excep- tions and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 en- tire record in this proceeding, including the Trial Examiner's Decision, and the exceptions and briefs, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Steel City Transport, Inc., Pittsburgh , Pennsylvania. its offic ers , agents, successors, and assigns , shall take the action set forth in the Trial Examiner 's Recommended Order, as herein modified: 1. Designate the cease-and-desist paragraph of the Trial Examiner's Recommended Order as l (a) and add the following as paragraph 1(b): "(b) In any manner interfering with the efforts of the said Union to bargain collectively concerning rates of pay, wages , hours of employment, as the exclusive representative of its employees in the bar- gaining unit found appropriate herein." 2. Insert the following as the first and second in- dented paragraphs of the notice: 685 WE WILL NOT refuse to bargain collectively with General Teamsters, Chauffeurs and Hel- pers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargain- ing representative of our employees in the bar- gaining unit described below. WE WILL NOT in any manner interfere with the efforts of the said Union to bargain collec- tively with us. i The following Conclusion of Law should be added to those set forth in the Trial Examiner's Decision and designated (1), the remaining Con- clusions to be renumbered accordingly: The Union, on and at all times since June 27, 1966, has been and is the exclusive representative of the employees in the appropriate bargaining unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. In addition, the Conclusion of Law to be designated (2) should be amended to read as fol- lows By refusing on August 8, 1966, to bargain with the Union concern- ing wages , rates of pay, hours, and other terms and conditions of employ- ment, the Respondent violated Section 8(a)(5) and (1) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon a charge filed August 17, 1966, by General Teamsters, Chauffeurs and Helpers, Local 249, herein the Union, against Steel City Transport, Inc.. herein the Respondent , the General Counsel issued complaint alleging Respondent refused to bargain in good faith with the Union in violation of Sec- tion 8(a)(5) and (1) of the Act. Respondent denied the commission of any unfair labor practices. This proceeding, with the General Counsel and the Respondent represented was heard at Pittsburgh, Pennsylvania, on February 6, 13, 14, 15, and 17, 1967. At the conclusion of the hearing the parties were given leave to submit briefs, and exceptionally able briefs were received from the General Counsel and Respondent on April 3.1 Upon the entire record in this case and from my obser- vation of the witnesses while testifying, I make the fol- lowing: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a Pennsylvania corporation having its principal place of business at Pittsburgh where it is en- gaged as a motor carrier in the States of Pennsylvania and Ohio in the transportation of goods. During the 12-month period preceding the issuance of complaint it received in excess of $50,000 for services in transporting goods across State lines to and from the Commonwealth of Pennsylvania. Respondent is engaged in commerce within the meaning of the Act. At the time of the submission of his brief the General Counsel moved to amend the record in certain particulars . No opposition to the motion having been received , the motion is granted and the record amended ac- cordingly. 166NLRBN .54 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union is a labor organization within the meaning of the Act li THE ALLEGED UNFAIR LABOR PRACTICES A The Facts 1. The demand and refusal Respondent's employees had never been represented by a labor organization In October or November of 1965 Clyde Slayter, an owner-operator, contacted John Reed, business agent of the Union, and Reed sent him cards for application for membership in the Union. While the record is not clear on this, it appears that Slayter and another owner-operator named Thomas Morgan2 solicited signatures to the cards from other drivers until June 1966. The first union meetings of employees were held on June 10 and June 18 and at the latter meeting Slayter turned over to Reed some 50 application cards.-; At the June 18 meeting Mor- gan was designated steward and it was suggested that Reed approach Respondent's president, Paul Brandt, to seek recognition.4 After unsuccessful attempts Reed finally reached Brandt by telephone, explained that Respondent's drivers wanted to be represented by the Union and it was arranged that Brandt and Reed meet at McSorley's Restaurant on June 27. Reed was accom- panied by another business agent, Victor Nicotra, and Brandt was accompanied by George Husk. Respondent's general manager. Discussion ensued while the parties had luncheon and Reed told Brandt that the Union desired to represent Respondent's "drivers" (the term was never defined) and told Brandt he had cards from approximately 50 of the 76 drivers. He suggested their authenticity could be determined by an impartial card check Brandt's reply was that he did not doubt the Union had a majority of cards. Reed told Brandt that if he doubted the signa- tures on the cards he could compare them with the em- ployment application forms and also offered to show him the cards He also suggested that the Union could "take it through the National Labor Relations Board for recog- nition." Reed then discussed the Respondent's percent- age rates with Brandt and gave him a copy of the Union's over-the-road agreement and a "Steel Addendum " (G C. Exhs. 3-A and B ) Brandt's version is that most of their time was spend on small talk and that Reed made a "sales pitch" to him to get him to agree to a contract. Brandt's response was that the Respondent took the position that its drivers were in- dependent contractors and should have the opportunity to express their desires by a secret election Brandt in- formed Reed that he had no experience in collective bar- gaining and that he was there only to seek information to take back and report to his Board of Directors As to the cards, Brandt testified that he did not know what a card was and that he did not think they meant a thing. He did not agree that Reed offered to show him the cards or have them checked. He accepted the agreement and addendum to satisfy his curiosity.5 The next meeting between the parties was held on July 15, attended by Reed, Husk, and Brandt and held at Brandt's office. Its purpose was to enable Reed to answer certain questions with respect to the proposed contract. Brandt interrogated Reed respecting terms of the contract and Reed answered questions concerning tools, licenses, and the bunkroom facilities The meeting was a friendly one, there was no discussion of the cards and it was agreed to hold a later meeting. Reed testified that at the next meeting held on July 27,6 Brandt spoke for 5 or 10 minutes and told him he was going to take the results of the meeting to the Directors and report at a later date whether the Respondent would negotiate or go to the Labor Board. When Reed asked him why they would go to the Labor Board if the Union already represented a majority, Brandt told him that "there was a possibility that some of the people who had signed application cards to join 249 (the Union) had changed their minds " Ac- cording to Reed there was discussion concerning dispatch procedures and garage rules. The meeting ended with Brandt's statement that he would take it back to his Board of Directors to decide whether to negotiate further with Reed or go to a Board election. Following this meeting Respondent held a meeting of its Board of Directors, who voted unanimously to proceed to a Board election on the grounds that the drivers were not employees but indepen- dent contractors. (What Brandt presumably meant by this testimony is that the Respondent wanted a Board deter- mination of this issue.) Brandt testified that at this meet- ing of the directors there was no discussion of the cards because the directors did not know who had signed and who had not Under all the circumstances the directors determined that the best and fairest thing to do was to hold an election On August 8, the day Reed returned from his vacation, Brandt notified him of the decision and Reed said he would file a petition immediately The petition (G.C. Exh. 4) was filed on August 9. When Reed was later informed by a Board agent that Respondent would not consent to an election since it was taking the position that its drivers were independent contractors the Union withdrew its petition and filed the charge herein 2. The appropriate unit At the first meeting held June 27 Reed demanded recognition from Respondent in a unit consisting of "all drivers " He made no specific exclusion of the mul- tiequipment owners nor does any distinction appear to have been made among the three classifications of drivers operating vehicles for Respondent. These classifications were (1) drivers who owned and operated their own ' Stayter testified that two other driver-owner Keller and "Smitty" (presumably Donald Smith) also assisted Due to a constant turnover in personnel it was difficult for the Union to determine precisely how many employees were in the unit at a particu- lar time and how many of the cards represented currently employed drivers Reed did testify that the cards were reviewed on it least two occa- sions and the cards deemed no longer valid were disc.aided The Union, according to Reed. at all times had a firm base of SO valid cards ' Brandt was suggested as the best contact by the employees, according to Reed, because he was considered a "square shooter ' Both Reed and Brandt were exceptionally credible witnesses and such discrepancies as appear in their testimony are not substantial and are only normal where two witnesses each recalling situations from a different point of view testify as to conversations which occurred some time in the past This meeting was held at the Teamsters Hall Morgan, shop steward, Donald Smith and Thomas Keifer. representing the drivers, were present together with Reed, on behalf of the Union Brandt. Gates, a partner in Brandt 's law firm, Ed Carroll manager of operations. and Jack Murray, dispatcher represented the Respondent STEEL CITY TRANSPORT equipment;? (2) drivers who drove vehicles owned by multiequipment owners; and (3) multiequipment owners who drove one of their own vehicles. (Some owners did not drive at all.) All owners operated under leasing agree- ments with Respondent." In its petition filed on August 9 the Union asked for an election in the following unit: Included: All truckdrivers at the Employer's Pitts- burgh, Pa., location. Excluded: All other employees, office clerical em- ployees and guards, professional employees and su- pervisors as defined by the Act. The General Counsel in his complaint dated December 21, 1966, has, with the benefit of some 5 months hind- sight since the date of the original demand, revised the unit to conform to Board decisions so that it is now set forth (paragraph 5) as: All single owner-operators and non-owner drivers of permanently leased equipment, excluding multi- equipment owner-operators, the mechanic, dispatchers, office clerical employees, and guards, professional employees and supervisors as defined in the Act. 3. The Union' s majority status In computing the eligibility of employees with the unit he deems appropriate the General Counsel has worked from a list (G C. Exh. 22) prepared and submitted by Respondent of all nonowner drivers employed during calendar 1966. The critical period for eligibility was taken as Ji:ne 27 through August 8. (The date when the first de- mand was made and the date on which it was rejected.)9 Eighty-nine persons were so listed. Of this number the General Counsel contends that 49 should be eliminated, either because they quit before June 27 or were not em- ployed until after August 8 1 agree. He would exclude nine other employees on the ground that they were casual employees. These employees and the days they worked were: Name Dates worked G. Bader June 7, 8, 16, 23, 28. R. Ludlum June 16, 18; July 28; August 2, 3, and 10. H. Allen Feb. - 8 days; March - 3 days; D. Snodgrass April - 6 days; May - 2 days; June-2 days; July-1 day. June 16, 18; July 13, 27. J. Huey Jan.- 1 day; June-4 days; July-5 days; August-2 days. C. Hall June 13; July 7, 12, 14, 16, 21. 7 Some drivers purchased their equipment from Respondent under a conditional sales agreement s Copies of the leasing agreements were received as G.C. Exh 7-a, b I agree with the General Counsel that the evidence establishes that the Union's demand was a continuing one during this period. 10 See Piggly Wiggly El Dorado Co., 154 NLRB 445,450-451 11 See John P. Serpa, Inc., 155 NLRB 99, reversed and remanded sub nom Retail Clerks Union , Local 1179 Retail Clerks International As- sociation, AFL-CIO v. N L.R.B., 376 F.2d 186 (C.A. 9). (In its reversal the court did not disagree with the Board's position that the General Counsel must sustain the burden of establishinng a bad-faith refusal on the part of a respondent confronted with evidence that a majority of its em- 687 Name Dates worked G. Rhodes April 18, June 11, July 12, August 23, 25. J. Hurles July 14, 15, 18, 19, 22, August 1, 2, 4, and 5. R. Clark August 2, 6, 10. I agree that the employment records of these drivers establishes that their employment was both too sporadic and casual to warrant inclusion in the unit.10 From the list of single-owner operators the General Counsel contends that 37 should be eliminated as having terminated before June 27 or started operating after Au- gust 8. (See G.C. Exhs. 23-A through 23-JJ.) I agree. Respondent submitted a list (G.C. Exh. 22-b) of 21 al- leged multiequipment owner-operators, whom the General Counsel would exclude as supervisors. There is, however, dispute as to certain individuals so cater- gorized. The General Counsel contends that on June 27 John Parks, Robert Istenes, Donald Smith, and Nicholas Bursick were single-equipment operators driving their own tractors and should be included in the unit. The record substantiates his position. As to the other exclu- sions, there appears to be no dispute except as to the Murrey brothers. The testimony indicates that the Mur- rey brothers were multiequipment owners and should be excluded. In agreement with the General Counsel I find that there were 67 drivers in the unit alleged to be ap- propriate by the General Counsel of whom 40 had signed valid cards designating the Union as their bargaining representative. The status of these drivers vis-a-vis Respondent will be discussed infra. B. Conclusions The Respondent stands before the Board in a posture of candor and honesty. At no time did Respondent take the position (or use the magic words) that it entertained a good-faith doubt of the Union's majority status. Had it done so, since it committed no unfair labor practices and at no time indicated that it rejected the principle of collec- tive bargaining, the complaint would fail." There is testimony by Brandt 12 that Respondent did not un- derstand the meaning of the application cards13 but there is nowhere to be found in his testimony a direct assertion of a good-faith doubt of majority status. Rather Respon- dent's rejection of the Union's demand for recognition was based on its contention that its drivers were indepen- dent contractors and not employees. This is a defense which may not be asserted in a context of good-faith doubt of majority status of the Union, for where the defense relies on a mistaken view of the law the good faith of such a view does not save a respondent. Old King ployees had signed cards It held that bad faith was established by Respondent's delay in answering the demand until after two employees had signified a change of mind, a change which destroyed the Union's majority) See also Aaron Brothers Co, 158 NLRB 1077; H & W Con- struction Company, Inc, 161 NLRB 852, Mace Food Stores, Inc, 162 NLRB 1605. Cf United Mine Workers of America v Arkansas Oak Flooring, 351 U.S. 62, N.L.R B v Tnmfit of California, 211 F.2d 206 Brandt, a highly reputable attorney, was unversed in labor law i a Respondent's contention that the application cards did not serve to designate the Union as bargaining agent is rejected. Sunshine Mining Co , 7 NLRB 1252 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cole, Inc. v. N.L.R.B., 260 F.2d 530, 532 (C.A. 6); United Aircraft Corporation v. N.L R.B, 333 F.2d 819 (C.A. 2), N.L.R.B. v. Keystone Floors, Inc., 306 F.2d 560. If the rule seems harsh there is the other side of the coin to consider . In Tom Thumb Stores, Inc., 123 N LRB 833, the Union 's bargaining demand had been rejected on the ground that wrappers should be excluded from a unit of meat department employees . Finding that a unit of all meat department employees was traditionally appropriate and that the Respondent had unlawfully refused to bar- gain, the Board , pages 834-835, stated: We cannot agree that the Respondent could evade its obligation by rejection of the unit. We have imposed considerable risk upon a union which seeks to en- force its rights under Section 8(a)(5) It must establish that it has been designated by an uncoerced majority of the employees , that the unit is ap- propriate , and that there has been both a demand and refusal . If there is failure of proof in any one of these conditions its resort to the Board will have been in vain. It seems both equitable and in conformity with the statute to impose the same risk upon the em- ployer who denies his obligation Having found Respondent could not raise the good- faith doubt issue" we turn to the unit question . Respond- ent relies on two factors, ( 1) the independent-contractor status of the drivers and (2 ) the variance between the unit demanded by the Union and that found appropriate. The facts with respect to the manner in which the drivers per- formed services are fully set forth in the briefs of the parties, the testimony , and the lease agreements . There is no substantial dispute concerning the facts , only to the conclusions to be drawn therefrom . They are summarized in the General Counsel 's brief as follows The relationship between Respondent and the owner-operators is established and governed by identical lease agreements which cover the leasing of a particular piece of equipment The leases, which state that the parties intend to create a carrier-inde- pendent contractor relationship , are for an indefinite period until breached by either party or terminated by either party after 30-day written notice. Para- graph 3 of the lease provides that any failure to furnish equipment by the owner or any use of the equipment by the owner for any other person other than the carrier (Respondent) is tantamount to a breach , and no written notice will be required in such circumstances . The leases provide that the Respond- ent shall have exclusive possession, control, use and responsibility of the leased equipment. Under the terms of the leases , and in actual prac- tice , the equipment owners are responsible for pay- ing all costs of operation which include maintenance, repairs, fuel, wages of other drivers, insurance coverage for collision , fire and theft , workmen's compensation , unemployment insurance and social security . While the equipment owner is also obligated to make all payroll , tax or other deductions required by law , and is responsible for the payment of licenses , registration fees, toll charges, gasoline taxes and fines arising out of the use of such equip- ment , the record discloses that Respondent deducts from the equipment owner 's checks road taxes required by the States of West Virginia and Ohio. Further, the State of West Virginia requires permits which must be obtained by Respondent. The Respondent also is required to purchase and main- tain adequate public liability, property damage and cargo insurance on the equipment while in the ser- vice of the Respondent , and must keep and maintain such insurance coverage in amounts required by ap- plicable laws and regulations. Although the leases provide that the equipment owners shall furnish their own drivers for their equip- ment , the Respondent requires that all drivers, whether they are to drive their own or the equipment of others, complete a 4-page employment application form. Such form provides for the driver to fill out a detailed description of his physical condition, moral fitness, education, former employment , amount of in- surance the applicant carves, past driving record, type of equipment and references . The application also notes that the applicant , if hired , shall be subject to a 30-day probationary period , and that misrepresentations will constitute grounds for im- mediate discharge . In addition to the above require- ment , the applicant must pass a physical examination before he can begin hauling for Respondent. The prospective driver is supplied with forms by Respond- ent which his physician is to complete , and after being employed , the driver must carry on his person a doctor's certificant to comply with ICC regula- tions. Also pursuant to ICC rules, the Respondent requires that the driver pass a physical examination every three years. Another requirement of Respondent at the time of hiring is that the equipment be inspected . Respond- ent's maintenance supervisor performs such inspec- tion and determines if it is in safe and efficient operating condition The mechanic places a cer- tificate of inspection on the back of the lease agree- ment. Thereafter, at intervals of three months, each equipment owner must have his equipment inspected by Respondent 's mechanic . The mechanic certifies on a form containing the Respondent's name that the equipment complies with ICC regulations. The owner-operator also is required to sign such a form. The record shows that if the equipment fails to pass inspection , Respondent' s dispatcher will not assign any loads to the driver of the equipment until it meets ICC standards. All drivers are further required to submit daily log sheets to the dispatcher. If the drivers are remiss in maintaining current log reports, Respondent denies them further loads and refuses to pay them for their past hauls. Under the terms of the lease, the equipment owner agrees to permit the Respondent to identify the equipment . Thus, the tractors must bear Respond- ent's decal and ICC and State Certificate numbers. Also placed on the equipment by Respondent is a Markell Road sticker The equipment owners are paid a percentage of the gross revenue . Those individuals leasing a full piece of equipment (tractor and trailer) presently receive " At the third meeting between the parties Brandt gave as a reason for rejecting the Union's demand , the fact that some of the drivers might have changed their minds I do not believe this statement sufficient to establish rejection was bounded on a good-faith doubt Cf See the court 's decision in Serpa, above, fn I i STEEL CITY TRANSPORT 689 79% on so-called long hauls west of Cleveland and 74% on short hauls. On the other hand, tractor owner-operators using a company-owned trailer receive 64% and 59%, respectively. It is not disputed that these rates were unilaterally established by Respondent and are not a matter of negotiation. The Respondent also has reduced the percentage rate by one percent in 1963 without consultation with the equipment owners. At such time, Respondent ex- plained that the reduction in rate was attributable to a rise in insurance costs. In addition, the Respondent every six months gives a cash bonus to drivers who meet a safety stan- dard established on a point system. The drivers also have been provided with jackets by Respondent and are presented with gifts at Christmas. The record further shows that the equipment owners play no role in the prices that Respondent charges its customers. Thus, Respondent has sub- stantially reduced its rates charged to a customer without notifying the owner-operator of the change. Obviously, such change can radically affect the com- pensation an equipment owner receives for a haul. Respondent, upon request, frequently gives cash advances to the drivers at the time they are dispatched in order to pay for their trip expenses. In addition, Respondent will occasionally make ad- vances to cover repair bills or assist in the purchase of equipment. The Respondent has fuel facilities at the terminal for the benefit of the drivers, and furnishes fuel on a credit basis, deducting the amount thereof from the pay check which is normally issued on the day the trip is completed. If the advance is a large amount, the driver is permitted to pay on an in- stallment basis. The non-owner drivers are paid by the equipment owner a percentage of the gross amount received by the owner. In order to obtain payment for a haul, Respondent requires the equip- ment owners to present a shipping order signed by a customer at the delivery point. 3. Dispatch of Equipment Owner-operators are given their assignments at the terminal by the Respondent's dispatcher who notifies them as to location, destination and type of commodity to be handled. On occasion, the dispatcher will also specify the time for pick-up and delivery. The drivers have been instructed by Respondent's officials to contact the dispatcher by telephone for further assignments upon completion of a delivery and they in fact place such calls. The drivers are permitted to telephone collect when seek- ing additional assignments. The shipments are generally assigned in the order in which the various pieces of equipment become available. While Respondent does not usually prohibit the driver from selecting his own route of travel, it does place some restrictions on the drivers in this respect. Thus, Respondent has instructed drivers that they must "gateway" (return) through the Pittsburgh commer- cial zone following a pick-up or delivery at seven designated points outside the commercial zone. The drivers normally can and at times do refuse loads as- signed them. However, owner-operator Smith testified that the dispatcher had forced him to take a load Smith did not desire with the warning, "It was either Columbus or nothing." President Brandt admits that Respondent attempts to comply with and enforce the ICC requirement that the equipment must be exclusively leased to the car- rier. Brandt testified that occasionally the owner- operator will permanently lease the same piece of equipment to another carrier. When such occur- rences come to the attention of Respondent, it will terminate the lease of the offending owner-operator or else have the other carrier terminate its lease. In contrast to the permanent leasing, infrequently a driver will obtain a load from another employer which is destined for the driver's home area. When such trip leasing takes place, the Respondent must grant its approval to the arrangement and receives the check for the trip from the other carrier. Respond- ent will then endorse the check over to the equip- ment owner without taking any percentage for the haul unless a company-owned trailer was used. 5. Other Factors The Respondent maintains a terminal parking lot which it allows the drivers to use. In the event an owner-operator who uses a company-owned trailer fails to report for several days, he has been instructed by Respondent to return the trailer to the terminal so as to prevent theft. Respondent has posted a notice to the effect that drivers must report illnesses or mechanical difficulties, and owner-operators Morgan and Smith testified that they notify the Respondent when they are ill or have an equipment breakdown. Pursuant to ICC regulations, Respondent makes cer- tain that the drivers do not haul a prohibitive number of hours and that they report accidents to the carrier. A bunkroom facility is provided by Respondent at the terminal which accomodates 12 drivers. The drivers are provided sheets and a janitress to clean the area. The Respondent has a contract with Markell Safety Patrol Service. This firm has employees who check the drivers on the road to determine if they are meeting safety requirements and ICC regulations by checking equipment, licenses and log books. Markell then sends reports on each driver to Respondent. When a negative report is received, Respondent's operations manager brings this to the attention of the offender and instructs the driver to take the necessa- ry corrective steps. The record further discloses that Respondent ex- ercises the power to discipline drivers by discharging them. Thus, owner-operator Robert Amos was fired for insubordination and a nonowner driver was also terminated after being involved in three accidents. As Respondent candidly admits in his brief15 recent Board decisions are adverse to his contention that the drivers are independent contractors. Respondent asserts that while the Board has emphasized the "right-to-con- 15 The brief excellently summarizes the common law on independent contractors 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trol" test as its criterion it asserts that in its zeal to extend the benefits of the Act to the greatest number of people, it has done violence to the intent of the law and to the realities of the situation. This is however , not an argu- ment which may be addressed to a Trial Examiner 's since the latest cases support the General Counsel 's position with respect to the appropriateness of the unit . (Cement Transport, Inc., 162 NLRB 1261; Indiana Refrigerator Lines, 157 NLRB 1539; National Freight, Inc., 153 NLRB 1536.) 1 agree with the Respondent that these decision are in apparent conflict with Reisch Trucking and Transportation Co., Inc., 143 NLRB 953, but they are subsequent and therefore superior in authority. Fluc- tuations in Board decisions are to be expected for a variety of reasons so close scrutiny is required to find the current state of the market. The Board's position, it might be noted, has found support in the courts." It is therefore found that the Respondent's drivers, except for multi- equipment owners who drive, are employees of Respond- ent and constitute an appropriate unit. In agreement with the General Counsel I find the multiequipment owners, whether drivers or nondrivers, are supervisors employed by Respondent." The next question presented is whether the Union's de- mand for recognition was sufficiently specific as to the unit in which it claimed bargaining status. Reed's demand on June 27 referred only to "all drivers." It is quite clear that such a demand would include the multiequipment owners who also drove and who are excluded from the unit described by the General Counsel and found ap- propriate herein. The petition filed August 9 includes all drivers but excludes all other employees and supervisors. It must be admitted that Respondent, who had three separate classifications of drivers working for it at the time, would undoubtedly be unaware that by excluding "supervisors" the Union intended to exclude the mul- tiequipment owner-drivers. It is equally doubtful that the Union , at the time of either demand , intended to exclude them or that it was aware that , under the semantics of the law, these drivers were "supervisors " But the question is to be determined no by the lack of specificity respecting these owners but whether there is sufficient variance between the unit requested and the unit found to be ap- propriate to warrant dismissal In Barlow-Manev Labora- tories, Inc., 65 NLRB 928, a Board majority dismissed the refusal to bargain allegation of the complaint on the ground that the Union never represented a majority in either unit requested by it regardless of its appropriate- ness. The Trial Examiner, however, revised the unit to conform to Board decisions and then found that the Union represented a majority in such unit The Board's dismissal was based on the fact that no demand had been made for representation in the Examiner ' s unit. In so doing it added that its decision did not mean that the Board might not "sustain an allegation based on Section 8(5) and yet make minor variations in the unit originally proposed by the charging labor organization " In Washington Coca-Cola Bottling Works, Inc., 117 NLRB 1163, the Board dismissed the 8 (a)(5) allegation of the complaint on the ground that the unit requested by the Union consisted of all drivers and driver-salesmen and that this unit definition substantially differed from the unit described by the General Counsel at the hearing. (The unit requested by the Union was the same in which two prior consent elections had been held .) At the hearing the General Counsel provided a response to a bill of par- ticulars requested by the employer in which he described the unit as composed of driver-salesmen , full service drivers, cup route drivers, and salesmen-trainees. The three latter classifications were held to be additions to the prior consent election units and the unit requested by the Union. The Board found this variance substantial and the bargaining demand , as alleged in the complaint , improper. The Board stated, pages 1166-67: We do not intend , of course, hereby to require that a labor organization shall always precisely define the unit it seeks to represent . Our holding does not, in our opinion , place an undue or improper burden upon the Union , for when in an instance where it has not secured the benefit of the Board 's determination of its representative status it seeks to enforce its de- mand for bargaining through the Board 's unfair labor practice procedure , it must of necessity be prepared to meet the requirements of proof of all the elements essential to a finding that an unfair labor practice has been committed, including not only its majority status, but also the fact of a proper demand for bar- gaining and its refusal. If the parties are in dispute, or if any doubt exists , as to the appropriate composition of the unit, the law has provided a ready recourse in the Board 's representation procedures. Here, although the Respondent had insisted upon a Board election, the Union did not avail itself of this method, but chose to demand recognition in a specific unit and thereafter to engage in a recognition strike, fol- lowing which we are now called upon to find that a refusal to bargain occurred in a substantially dif- ferent unit . Not only do we believe that the require- ments for establishing the commission of an unfair labor practice have not been met in this case, but we are of the further opinion that it would not promote or encourage the processes of peaceful collective bargaining to require the Respondent to recognize and bargain with the Union for a unit proposed for the first time in this unfair labor practice proceeding and substantially different from the Union's original request In Joshn Dry Goods Company, 118 NLRB 555, the Board found the Union 's demand for a unit which in- cluded television and appliance repairmen within a unit of warehousemen and drivers inappropriate It noted that the unit was nearly twice as large as that which the Board would have found appropriate , i.e., a unit of warehousemen and drivers , and therefore found the vari- ance substantial. In American Rubber Products Corp., 106 NLRB 73, the Board held that the fact that the unit demand included two watchmen (found to be guards) did not preclude the finding of an 8(a)(5) violation . This result was based on the Board's finding that Respondent had not informed the Union that it based its refusal on the inclusion of the watchmen ; the inclusion or exclusion did not affect the 1b See Insurance Agents' International Union, AFL-CIO (Prudential Life Insurance Co ), 119 N LRB 768, 773 "Minnesota Milk Co v N L R B, 314 F 2d 761 (( A 8), enfg 133 NLRB 1314 The court there held that common law or statutory concepts of employer-employee relationships yield in effectuating the policies of the Act Cf National Van Lines v N L R B 273 F 2d 402 is Deaton Truck Line, inc , 143 N LRB 1372, petition for review denied 337 F 2d 697 (C A 5) STEEL CITY TRANSPORT Union's majority status; and the exclusion did not essen- tially alter the production and maintenance unit requested. (There were approximately 152 employees in the unit.)'" On the authority of these more recent cases I find that there was no such substantial variance between the unit requested by the Union in its oral demand , its petition and that set forth in the compliant as to warrant dismissal.20 It is true that Respondent was confronted with an original demand admittedly ambiguous and it is likewise true that Respondent had a reasonable doubt as to what unit, if any, was appropriate. Respondent, again on the authority of the cases cited, acted at its peril in rejecting the de- mand on the unit issue for, once that question is decided adversely, Respondent was guilty of an unfair labor prac- tice. The fact that Respondent at all times acted in complete good faith (it made no effort to dissuade any em- ployee from union adherence) does not serve to condone its conduct. One last contention of Respondent remains for disposi- tion. There is testimony by Slayter that he, Morgan, Keffer, and "Smitty" solicited applications "all together."21 In his testimony relating to the admission of the cards Slayter stated that they were solicited and received either by him or jointly by Morgan and him. No mention was made of Keffer and "Smith." Keffer was a multiequipment owner and therefore a supervisor. As such he was excluded from the unit and his card has not been computed in establishing the majority . He was a member of the Union's bargaining committee as were Smith and Morgan but there is no evidence that he so- licited cards. He appeared as a witness in the proceeding. Donald Smith was a multiequipment owner from January 1966 until May 1966, according to his own testimony. His card was signed on November 22, 1965, and he was a single-owner operator on the dates of the demand. Again, there is not testimony that he solicited the card of any employee during the period in which he was a super- visor. I do not find the foregoing sufficient to taint the cards as improperly solicited. III. THE REMEDY Having found the Respondent engaged in and is engag- ing in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirm- ative action necessary to effectuate the policies of the Act. Upon the foregoing findings and conclusions and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. By refusing on August 8 to bargain with the Union concerning wages, rates of pay, hours, and other terms and conditions of employment the Respondent violated Section 8(a)(5) of the Act. 2. The following unit is appropriate for the purposes of collective bargaining: All single owner-operators and nonowner drivers of leased equipment, excluding mul- tiequipment owner-operators, the mechanic, dispatchers, office clerical employees, guards, professional em- ployees, and supervisors as defined in the Act. 3. The aforesaid unfair labor practice set forth in para- graph 1 of this section is an unfair labor practice withinn the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER 691 It is hereby recommended that Respondent Steel City Transport, Inc., its officers, agents, successors, and as- signs, shall: 1. Cease and desist from refusing to bargain collec- tively with General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the unit found appropriate herein. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Upon request, bargain collectively with the above- named Union as the exclusive bargaining representative of its employees in the unit found appropriate herein with respect to wages, rates of pay, hours and other terms and conditions of employment and, if agreement is reached, embody such understanding in a written agreement. (b) Post at its terminal at Pittsburgh, Pennsylvania, co- pies of the notice attached hereto and marked "Appen- dix."22 Copies of said notice to be furnished by the Re- gional Director for Region 6, after being duly signed by Respondent's representative, shall be posted for 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the receipt of this Decision what steps the Respondent has taken to comply therewith.23 IT IS FURTHER RECOMMENDED that paragraphs 9 and 10 of the complaint be dismissed. 11 See also United Butchers Abattoir, Inc, 123 NLRB 946, 956, hold- ing that the elimination of one night watchman and two maintenance em- ployees from a unit of 25 production employees did not constitute a sub- stantial variance; Hamilton Plastic Molding Company, 135 N LRB 371, where the failure to exclude supervisors and office clerical employees was held not fatally defective, American Manufacturing Company of Texas, 139 NLRB 815, where variance between the unit set forth in the letter de- manding recognition and the unit set forth in the complaint (the letter in- cluded city drivers with over-the-road drivers while the complaint ex- cluded them) was held insubstantial. 20 I believe , in view of the fact that the leases were terminable at will that the word "permanently" should be striken from the unit description contained in the complaint , a change not affecting the substance in any way. 21 There is substantial evidence from which it may be concluded that "Smitty" was Donald Smith. 22 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals enforcing an Order" shall be substituted for the words "a Decision and Order." 23 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in 692 DECISIONS OF NATIONAL order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL, upon request, bargain collectively, with General Teamsters, Chauffeurs and Helpers Local 249, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the bargaining agent of our employees in the following unit with respect to wages, rates of pay, hours and other terms and conditions of employment and, if agreement is reached, sign a written contract covering such agreement. The employees in the ap- propriate unit are: All single owner-operators and nonowner drivers of leased equipment, excluding mul- tiequipment owner-operators, the mechanic, dispatchers, office clerical employees, profes- LABOR RELATIONS BOARD sional employees and supervisors as defined by the Act. STEEL CITY TRANSPORT, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644-2977.