Troupe Leasing Co.

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Troupe Leasing Co. and Chemical Leaman Tank Lines, Inc.' and Automotive '& Petroleum Employees Local Union No. 103, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Case 9-RC-7526 January 23, 1969 DECISION ON REVIEW BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING, BROWN, AND ZAGORIA On February 29, 1968, the Acting Regional Director for Region 9 issued a Decision and Direction of Election in the instant proceeding in which he found, inter alia, contrary to the Petitioner's contention, that Troupe and Chemical Leaman were not joint employers of the requested unit of over-the-road drivers and that Troupe alone was their employer. Thereafter, in accordance With Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a request for review of the Acting Regional Director's Decision on the ground that substantial questions of law were raised by his aforementioned findings. The National Labor Relations Board, by telegraphic Order dated April 3, 1968, granted the request for review and stayed the election pending its decision on review. The Petitioner and Chemical Leaman subsequently filed briefs on review. The Board has considered the entire record in this case with respect to the issues under review, including the briefs on review, and makes the following findings: The Petitioner seeks to represent a unit of over-the-road drivers who drive tractors leased by Troupe to Chemical Leaman pursuant to a long term equipment lease agreement, for use in hauling the latter's tank trailers. Chemical Leaman, a Delaware Corporation, is an ICC certificated motor carrier engaged in the transportation of bulk freight over irregular routes in several states. It operates a number of freight terminals, one of which is at Ross, Ohio. At the Ross terminal it employs about 27 over-the-road drivers, mechanics and/or cleaners who are currently represented by Drivers, Mechanics, and Cleaners Independent Union No. 40 which intervened herein solely to protect its existing contract unit. Troupe, an Ohio corporation, operates a terminal at Hamilton, Ohio, about 10 miles distant from Ross, where it employs the 17 'Referred to herein as Troupe and Chemical Leaman, respectively For the reasons discussed below, the Acting Regional Director's ruling, granting chemical Leaman's motion to strike its name from the petition, is hereby reversed, accordingly, the caption has been amended to include Chemical Leaman as a point employer with Troupe, of the employers involved over-the-road drivers herein sought and a number of mechanics. 2 The Acting Regional Director found that Troupe, as a corporate entity, is an independent contractor rather than an agent of Chemical Leaman and rejected the Petitioner's alternative contention that Troupe and Chemical Leaman are joint employers of the requested drivers. The Petitioner asserts that the principles of Cement Transport3 and Manpower 4 are controlling herein and that a joint employer finding is warranted by the record facts. We agree. Chemical Leaman, in order to qualify as an ICC certificated interstate motor vehicle common carrier, must show at all times that it is fit, willing, and able properly to perform its services in conformity with the law. The ICC regulations contain extensive provisions relating to the qualifications of drivers, driving of motor vehicles, parts, and accessories necessary for safe operations, reporting of accidents, hours of service of drivers, and inspection and maintenance of equipment. The regulations further impose responsibility on the carrier to make certain that the regulations are observed by its drivers. Under the regulations, a carrier is permitted to augment its equipment by means of leases. However, the regulations require the carrier to have "full direction and control of such [leased] vehicles" and to be "fully responsible for the operation thereof, in accordance with applicable law and regulations, as if the carrier was the owner of such vehicles." The lease agreement between Troupe and Chemical Leaman was executed April 27, 1964, effective for at least 30 days and terminable thereafter on written notice. Attached to the agreement is a schedule of the rental rates for the leased equipment and,drivers supplied by Troupe in terms of percentages of revenue, the percentages varying with the type of load being hauled. - A formula for computing the percentages paid for return loads (back hauls) is also detailed. The agreement, by express provision, does not require the assignment of any particular load, run, or trip to any described vehicle nor commit Chemical Leaman to use any or all of the equipment leased. As to inspection, paragraph 6 of the agreement states that Troupe warrants that all equipment leased is in good, safe, and efficient condition and in full compliance with ICC rules and regulations and shall be maintained by it. Troupe agrees to submit the equipment to Chemical Leaman's inspection on request and to furnish all records, information, and documents pertaining to the equipment and Troupe's drivers. If the equipment or driver for any reason is 'Although' Troupe stated that it is engaged in the business of interstate freight transportation including leasing and servicing of its wholly owned tractors by an equipment lease agreement with Chemical Leaman, the record does not indicate whether or not it leases tractors to anyone other than Chemical Leaman. 'Cement Transport, Inc, 162 NLRB 1261 'Manpower, Inc., of Shelby County and Armour Grocery Products Co, Division of Armour and Company, 164 NLRB 287 174 NLRB No. 37 TROUPE LEASING CO. rejected Chemical Leaman shall have no liability for compensation to Troupe. Chemical Leaman shall have the right to hold the movement of any leased vehicle for inspection, for infraction of any safety rules and regulations and/or routine safety inspections. Paragraph 8 states that Chemical Leaman shall furnish to Troupe a placard or plate containing such identification as required by ICC rules and regulations and Troupe agrees to attach same to the leased equipment. Paragraph 9 provides that Troupe shall furnish competent, experienced, and qualified drivers necessary for the proper and lawful operation of the equipment and shall direct and control their employment and the manner in which they perform their duties. Troupe warrants that all drivers furnished shall meet the requirements of all regulatory bodies having jurisdiction and agrees that necessary physical examination certificates and other data shall be furnished to Chemical Leaman to determine such compliance. Drivers are and shall for all purposes be conclusively presumed the employees and/or agents of Troupe. Chemical Leaman agrees that Troupe shall hire such drivers, helpers, or other employees as it deems appropriate in the performance of its duties under this lease agreement and Chemical Leaman shall have no right to direct or control their hiring, their discharge, or the manner in which they perform their duties for Troupe, nor shall Chemical Leaman have any responsibility for their compensation, provided, however, that Troupe's drivers shall be required by Troupe to meet and adhere to such standards established by Chemical Leaman as are necessary and proper for the discharge of the duties imposed upon Chemical Leaman by the local, state, or federal regulatory bodies, any insurance company with whom Chemical Leaman is insured and/or any rules and regulations promulgated by Chemical Leaman. Paragraph 15 provides that Chemical Leaman may sublease the equipment when permitted by applicable rules and regulations, ... but neither party may assign the lease agreement. Paragraph 16 states that the relationship between Chemical Leaman and Troupe shall be that of Independent Contractor and the employees or agents of one party shall not be the employees or agents of the other party. In paragraph 17, Troupe agrees that should it be involved in a labor dispute with its employees, it will immediately report this fact to Chemical Leaman. If such dispute interferes or tends to interfere with Troupe's operation for Chemical Leaman, then the lease agreement shall be subject to immediate cancellation by Chemical Leaman without liability of any kind whatsoever. As found by the Acting Regional Director, in practice, Troupe interviews applicants for employment as drivers of its tractors. If acceptable 201 to Troupe, an applicant is then given a written examination by Chemical Leaman as required by ICC regulations. Also, he is given a physical examination by an examiner selected and compensated by Troupe. If he passes these tests, the applicant is then instructed on safety and other operating procedures by Troupe. Troupe's daily freight schedule is normally determined on the previous day when Troupe's president receives it from Chemical Leaman's dispatcher. Troupe assigns drivers to carry out such schedule, sending them to Chemical Leaman's terminal or a shipper's dock with a tractors to hook up with the loaded tank trailer and receive the bill of lading, and provides them with their travel routes! After making their deliveries, the drivers, pursuant to Z roupe's instructions, contact a Chemical Leaman terminal in the area to get a "back haul," if any is available, for delivery to the vicinity of Troupe's terminal. Pursuant to ICC regulations, Troupe's drivers are required to submit their daily drivers' logs to Chemical Leaman. Chemical Leaman does not discipline the drivers of Troupe's tractors. However, implementing its responsibilities under the ICC regulations, Chemical Leaman has an accident prevention department which road checks all equipment and drivers utilized by it in its operations. Troupe pays the drivers of its equipment and makes all pay deductions required by state and federal laws. Troupe also pays the highway use taxes, other regulatory taxes, and registration fees for the leased equipment. The requested drivers do not interchange with the currently represented drivers employed at Chemical Leaman's Ross terminal. It is clear from the foregoing that Troupe has and exercises considerable control over the means by which the drivers of its leased equipment carry out the lease agreement with Chemical Leaman. However, we find that Chemical Leaman has reserved to itself the right to control and, in practice, exercises substantial control over the essential terms and conditions of employment for such drivers. In determining the employer status of ICC certificated motor carriers with respect to drivers of leased equipment, the Board has placed particular emphasis on the overall effect of the ICC regulations requiring comprehensive control by the certificated carriers over the operations of equipment owners, the drivers, and the leased equipment.' In the instant case, although the lease agreement states that Troupe shall direct and control the employment of the drivers of the leased equipment and the manner in which they perform 'The tractors bear the name Chemical Leaman and other required information 'It appears that where last minute changes are made the drivers receive their dispatch instructions directly from the Chemical Leaman terminal dispatcher. 'Cement Transport, Inc., supra, and Indiana Refrigerator Lines, Inc., 157 NLRB 539. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their duties, such statement is qualified by the indication in paragraph 9 of the agreement that Chemical Leaman retains the right to share in such control, consistent with the obligations imposed on it by the ICC regulations. Moreover, as above indicated, Chemical Leaman in fact does share ' in controlling the employment of Troupe's drivers. Chemical Leaman has exclusive control over the leased equipment; it can terminate the lease agreement on written notice; it participates in the hiring of the drivers of the leased equipment; it requires all drivers to submit trip logs to it, it requires that its name be exhibited on the leased equipment; it conducts, through its safety patrol, road checks for the purpose of making routine safety inspections of the leased equipment and detecting and correcting violations by the drivers of regulations promulgated by the ICC or itself. Also, Chemical Leaman, through its dispatchers, gives directions to the drivers of leased equipment when back hauls are available.8 For these reasons, we find that Chemical Leaman and Troupe are joint employers of the drivers here involved.' Accordingly, we shall remand the case to the Regional Director for Region 9 for the purpose of conducting an election pursuant to the Acting Regional Director's Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that immediately preceding the date of issuance 10 'There is some indication in the record that Chemical Leaman also may direct the drivers of leased equipment when emergencies arise or last-minute schedule changes are made. 'See Manpower, Inc., of Shelby County and Armour Grocery Products Co., Division of Armour and Company , 164 NLRB 287; and Hoskins Ready-Mix Concrete , Inc., and Trinity Portland Cement Division , General Portland Cement Company, 161 NLRB 1492 The case of L C Sinor, an Individual, d/b/a L C Sinor and Standard Industries , Inc, 168 NLRB No 67, relied on by the Regional Director , is factually distinguishable. Compare our finding here with the earlier Chemical Leaman case (146 NLRB 148) There no allegation was made of a joint-employer relationship with multiple owner-drivers who leased their equipment to Chemical Leaman and supplied drivers for it, but the same equipment lease form was in use, and the Board found that an employer-employee relationship existed as to the said nonowner drivers and single owner drivers "A corrected 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 9 within 7 days after the date of this Decision on Review. The Regional Director shall make the corrected list available to all parties to the election . No extension of time to file this corrected 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