General Transfer & Storage

30 DECISIONS OF NATIONAL General Transfer, Inc., d/b/a General Transfer & Storage; National Van Lines, Inc.' and Teamsters, Chauffeurs, Warehousemen & Helpers, Local No. 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case 21-RC-10137 October 31, 1967 DECISION AND ORDER DISMISSING PETITION BY MEMBERS BROWN, JENKINS, AND ZAGORIA On July 11, 1966, Teamsters, Chauffeurs, Warehousemen & Helpers, Local No. 542, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner herein, filed a petition pursuant to Section 9 of the National Labor Relations Act, as amended, seeking to represent a unit consisting of all "drivers, helpers and warehousemen" employed by General Transfer, Inc., d/b/a Transfer & Storage, General herein. On September 8, 1966, the petition was adminis- tratively dismissed by the Regional Director upon a finding that under existing jurisdictional standards the Board would not assert jurisdiction over the em- ployer named therein. Upon appeal by the Peti- tioner, the Regional Director revoked the order of dismissal and thereafter, on December 28, 1966, a hearing was held before Hearing Officer Barton W. Robertson, at the conclusion of which, National Van Lines, Inc., National herein, was named a joint employer with General. At the same time the case was transferred to the National Labor Relations Board. On March 17, 1967, National, which was not served with notice of the hearing and therefore did not participate therein, filed a motion and brief in the form of special appearance, seeking dismissal of National as a party in interest to the proceedings and alleging that, in any event, National could not be found to be a joint employer with General. Thereafter, the Board ordered the record reopened and remanded the proceedings to the Regional Director for further hearings on the issues raised in National's motion. On June 8, 1967, a hearing was held, again before Barton W. Robertson, Hearing Officer. National and the Petitioner have filed briefs with the Board. No brief was filed by General. 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 name of the Employer appears as amended at the hearing ' It was stipulated that General receives approximately $2,000 per LABOR RELATIONS BOARD The Board has reviewed the Hearing Officer's rulings made at both hearings and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board finds: General is a California corporation engaged in the transportation and storage of household articles and similar commodities primarily within the State of California. For the first 8 months of calendar year 1966, its gross revenues amounted to approxi- mately $67,000. Projecting this figure to the end of the year, it was estimated that its gross revenues for 1966 would total roughly $75,000 or something under $100,000, of which an estimated $20,000 to $25,000 would be derived from commissions earned on interstate shipments carried by General as a contract agent for National.2 National is a corporation with its principal office at Broadview, Illinois, and is engaged in the trans- portation by motor vehicle of household goods and related articles throughout the United States under a certificate of convenience and necessity issued by the Interstate Commerce Commission. Approxi- mately 90 percent of its annual gross revenues is derived through some 320 local commission agents, including General, who operate under identical sales, service, and hauling agreements in which they agree to perform such services "as an independent contractor, as circumstances may require or permit, for the performance of which the Agent will engage experienced and qualified personnel." In contending that General and National are a single employer, the Petitioner relies heavily upon the agency agreement which governs the relation- ship between General and National in the handling of interstate shipments. That agreement, however, makes no reference to General's local operations, to its management policies and practices, or to its hiring practices or employee relationships, other than the requirement that in performing the services called for in the agreement, the agent will employ "experienced and qualified personnel." It gives Na- tional no voice whatever in the corporate or busi- ness affairs of General, and in no way invades the right of General to act as it sees fit in discharging its contractual obligations to National, other than requiring compliance with the regulations of the In- terstate Commerce Commission regarding the qualifications of its interstate drivers, the proper identification of vehicles used for interstate ship- ments, and applicable licensing, insurance, and safety regulations imposed by State or Federal regulations with respect to such interstate ship- ments. We find nothing in this agreement, or in the record as a whole, that remotely suggests such a degree of integration of the respective business af- month in revenue from National for its line hauls, local booking, and local storage services 168 NLRB No. 8 GENERAL TRANSFER & STORAGE 31 fairs of National and General as to make them a joint or single employer of General's drivers, help- ers, and warehousemen, as contended by the Petitioner.3 The uncontroverted evidence herein shows that the only connection between National and General is that the latter performs a service for the former for which it is paid a commission, and that such ser- vice must be performed in accordance with certain operative requirements imposed by law. These requirements give the appearance of conferring upon National a right of control over a portion of General's operations. Actually, National demands no more of its agents, including General, than that the legal requirements governing the hauling of goods in interstate commerce, by certified common carriers, be fully observed. This explains, for exam- ple, why the trucks or vans carrying interstate ship- ments, must bear the name of the certified carrier, in this case, National, why the drivers of those vehi- cles must be cleared by such carrier as to their physical fitness and driving competence, why such drivers must file periodic trip logs or reports, and why such carriers maintain certain personnel records with respect to such drivers. National does not hire these drivers nor does it have anything to do with their employment other than to implement the legal requirements governing their fitness to do the job. They are employed by National's agents, are paid by them, and receive their instructions from them. They may, if they choose, while on the road, call a National dispatcher, or coordinator, to report available space, any difficulties in locating the consignee of a shipment, or for any of several similar reasons. They may or may not wear National driver's uniforms. It is not required. They may also attend National's school for drivers but their employment does not hinge on this. In these circumstances, therefore, it cannot be said that National exercises the necessary economic control over the drivers as to make them National employees or point to com- mon labor policy between National and General. The buildings housing General's operations are not shared by National. A large General sign is dis- played thereon with a small National emblem in close proximity. General is listed in the local telephone directory as a National agent along with two other National agents in the same vicinity. Although National issues bulletins to its agents from time to time, they are in no way related to agency operations or business policies, but cover only such matters as tariff changes and certain operating techniques with respect to interstate ship- ments. The agents, including General, obtain and pay for all necessary licenses, permits, and in- surance, and maintain close contact with the nearest National dispatching or coordination office merely for the purpose of obtaining interstate ship- ments. The record is replete with other similar details of the operating relationship between National and General, none of which permit any conclusion other than that National and General are not a single or joint employer, but completely separate and au- tonomous business entities operating as principal and agent in transporting goods in interstate com- merce. But even if we were to find that National ex- ercises significant control over hauling by General on National's behalf, we would not find a joint em- ployer relationship to exist on the particular facts of this case. Thus, the record shows that General em- ploys a single driver in connection with services performed for National. It follows, therefore, that National's influence in connection with the job per- formance of that driver is too insignificant with respect to the overall unit sought to warrant a find- ing that General and National constitute joint em- ployers for jurisdictional purposes. This being so, the Petitioner cannot, for jurisdictional purposes, rely upon National's volume of business to bring General within the Board's jurisdiction and, since it is abundantly clear from the record that General does not meet the Board's minimal nonretail ju- risdictional standards, the petition will be dismissed. ORDER IT IS HEREBY ORDERED that the Petition for Cer- tification of Representatives filed by the Petitioner herein be , and it hereby is, dismissed. ' Pmb Plaza Amusement Company, 124 NLRB 428, Drivers, Chauf- fears and Helpers Local No 639, et al (Poole's Warehousing Inc ), 158 NLRB 1281