L. C. Sinor and Standard Industries, Inc.

L. C. SINOR & STANDARD INSUSTRIES 467 L. C. Sinor, An Individual d/b/a L . C. Sinor and Standard Industries , Inc. (Joint Venture),' and Oklahoma State Subcommittee of National Joint Heavy and Highway Committee, Petitioner. Case 16-RC-4613 November 27,1967 DECISION AND DIRECTION OF ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Paul Frank Cleveland of the National Labor Relations Board. Petitioner and Employer have filed briefs, which have been duly considered. 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 Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. 2. The labor organization2 involved claims to represent certain employees of the Employer. 3. A question affecting commerce exists con- cerning the representation of employees of the Em- ployer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner requests a unit consisting of all truckdrivers hauling aggregate, asphalt materials, and sand from Standard Industries, Inc., aggregate quarry operations and sand plant operations at the Tulsa, Oklahoma, operation, and including truckdrivers working for Sneed and Terry under the L. C. Sinor contract.3 In support of its requested unit, the Petitioner contends that Sinor and Stan- dard are engaged in a joint venture and that both should be regarded as the Employer of the truckdrivers. In reply, Employer Sinor argues that approximately 40 of the drivers are independent contractors and therefore not his employees and that he is not engaged in a joint venture with Stan- dard. Standard agrees with Sinor that ii is not en- gaged in a joint venture and further contends that it has no truckdrivers. The Employer, Standard, is a Delaware corpora- tion with its principal office and plant in Tulsa, Oklahoma. It is engaged in general construction and the sale of building materials. The Employer, Sinor, is an individual engaged in truck hauling with his principal office at Pryor, Oklahoma. There is no in- terlocking ownership between the two Employers, nor do they share in each other's profits. Sinor owns four tandem-type trucks which are operated by his employees. The owner-drivers, about 40 in number, operate "bobtails." The owner- drivers and Sinor's employees do not compete for loads. Sinor's operations insofar as they affect the owner-drivers are as follows. Sinor maintains a list of the owner-drivers. When Standard requires the service of a truck, it notifies Sinor's dispatching office. Sinor then dispatches the owner-driver at the top of the list to Standard's quarries to pick up the material to be hauled. If the owner-driver at the top of the list is not available, his name is dropped to the bottom of the list and the next owner-driver is dispatched to the quarries. At the quarries, Standard has a scaleman who loads the material and gives the owner-driver its destination. The owner-driver then delivers the material using whatever route he chooses. Owner-drivers testified that they could report for work when they wished and could leave when they wished. They also testified that they could, and did, haul for others. The record also shows that the owner-drivers purchase and maintain their own trucks without assistance from Sinor, obtain their own hauling per- mit from the Oklahoma Corporation Commission, and have their own names on their trucks. If the owner-drivers hire other drivers, they pay the driver themselves and make all other deductions and payments normally required of an employer. Sinor has no power to discharge the owner-drivers, but may discontinue their services. Sinor has discontinued one owner-driver because he refused to sign a hauling contract. Owner-drivers pay for- their own insurance and are required to furnish Sinor with a certificate that insurance has been ob- tained. The owner-drivers also pay for their own gasoline, oil, and other supplies necessary for the operation and maintenance of their trucks. One owner-driver, Leonard, testified that he was told by Sinor's dispatcher that he would have to buy his gasoline from Sinor "or else." Leonard also testified that Sinor had required him to purchase a tarp to cover the loads in his truck. Other owner- The name of the Employer appears in the caption as corrected at the hearing L The Employer refused to stipulate that the Petitioner is a labor or- ganization However, the record shows that the Petitioner is an organiza- tion existing for the purpose of representing employees of various em- ployers concerning wages, hours, and conditions of employment, and that 168 NLRB No. 67 it has contractual relations with a number of employers Accordingly, we find that the Petitioner is a labor organization within the meaning of Sec- tion 2(5) of the Act Pervel Industries, Inc , 163 NLRB 1037 1 The record shows that Sneed and Terry is a wholly owned subsidiary of Standard Industries and has no truckdrivers working under Smor's con- tract 336-845 0 - 70 - 31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arivers testified, however, that they were free to buy their gasoline and other supplies wherever they wished. The contract between Sinor and Standard covers the hauling of all of Standard's material to jobs which require 2,000 tons of material or less. It further provides, however, that Standard may sell material to purchasers who pick it up in their trucks at Standard's plants and quarries. It also provides that Sinor shall haul to destinations designated by Standard and in accordance with Standard's delivery schedule. It also provides that all person- nel doing this work shall be "under Contractor's ex- clusive control, orders and directions and shall be employed and paid by the Contractor and for all purposes shall be the employees of Contractor and not Standard." It also provides that if any employee of Sinor should fail to cooperate or should interfere with the work of other contractors, subcontractors, or owners, Standard could require Sinor to remove the employee from hauling to or working with such contractor, subcontractor, or owner. Sinor also had written contracts with each of the owner-drivers. This contract refers to the owner- drivers as "independent contractors." The evidence set forth above is insufficient to establish a joint venture or joint relationship between Sinor and Standard. There is no common ownership or control of the two enterprises by an individual or group of individuals, and the only evidence that Standard exercises any control over the wages, hours, or working conditions of the owner-drivers is its supplying of the destination to which loads are to be hauled. The provisions of the contract between Sinor and Standard do not confer any control over the owner-drivers and, in fact, leaves to Sinor the task of excerising control over the drivers. We therefore find that Sinor and Stan- dard are not engaged in a joint venture and are not joint employers of the owner-drivers. a As noted above, the testimony of one owner-drivel, denied by Smor, that he was required to buy gasoline from Smor, is not supported by the testimony of other owner-drivers An election eligibility list , containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 16 within 7 days after the date of this Decision and We further find that the record will not support a finding that the owner-drivers are employees of Sinor. The owner-drivers are free to work or not work for Sinor as they see fit, free to perform the hauling for which they are hired in the manner they deem best, and are free to, and do, haul for other en- terprises. The owner-drivers are completely responsible for the purchase, maintenance, and repair of their trucks,' for the purchase of supplies necessary to operate the truck, for obtaining permits to allow their truck to be used for hauling, for the payment of taxes incidental to their hauling operations, and for the fixing and payment of the wages of any drivers they may choose to hire. It is clear to us that, under these circumstances, Sinor has little control over the means by which the owner-drivers are to accomplish the hauling of material and thus does not satisfy the common law "right of control" test we have utilized in determin- ing the status of indivuals who are alleged to be em- ployees rather than independent contractors. We shall, therefore, not include the owner-drivers in the appropriate unit. At the hearing the Petitioner stated that if the Board did not find the owner-drivers to be em- ployees, it would accept a unit consisting of the four employees driving the tandem trucks owned by Sinor. Accordingly, we find that the following em- ployees constitute an appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act: All tandem truckdrivers employed by L. C. Sinor engaged in hauling for Standard Industries, Inc., at its operations in Tulsa, Oklahoma; excluding office personnel , guards, watchmen, and supervisors, as defined in the Act. [Direction of Election 5 omitted from publica- tion.] Direction of Election The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed Excelsior Underwear Inc, 156 NLRB 1236