Independent Rapid Trucking

INDEPENDENT RAPID TRUCKING 367 Stanley Levinson d/b/a Independent Rapid Trucking and General Truck Drivers, Chauffeurs and Help- ers Union Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 21-CA-9946 November 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On February 14, 1972, Administrative Law Judge 1 Allen Sinsheimer, Jr., issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, and hereby orders that Respondent, Stanley Levinson d/b/a Independent Rapid Trucking, Long Beach, California, its officers, agents, successors, and as- signs, shall take the action set forth in said recom- mended Order. 1 The title of "Tnai Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner: The above proceeding was heard at Los Angeles, California, Septem- ber 16, 17, and 18, 1971. The complaint' issued May 28, 1971,2 alleges violation of Section 8(a) (1), (3), and (5) of the Act. The principal issues are: (1) whether the Respondent engaged in acts and conduct tantamount to recognition of the Union and subsequently withdrew recognition (or alternately whether it became obligated to recognize the I An original charge was filed April 14, 1971, and an amended charge April 15, 1971. 2 An amendment to the above complaint was issued on June 9, 1971 3 Ruling was reserved concerning an offer as an "admission" of an Union); (2) whether it engaged in certain acts in violation of Section 8(a)(1) of the Act; (3) whether it violated Section 8(a)(3) by terminating its relationship with Wallace Mackinga whom the General Counsel claims to have been an employee and the Respondent asserts to have been an independent contractor; and (4) whether a strike which occurred was an unfair labor practice strike. Upon the entire record including my observation of the witnesses and after due consideration of the briefs of the General Counsel and Respondent, I make the following: 3 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT During the last fiscal year, a representative period, Respondent performed services valued at approximately $35,000 for branches of the United States Government directly related to national defense. During the same period Respondent performed services valued in excess of $50,000 for customers within the State of California each of whom annually purchases and receives goods and materials valued in excess of $50,000 directly from suppliers located outside the State of California. Respon- dent does not deny and I find that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED It is undenied and I find that General Truck Drivers, Chauffeurs and Helpers Union Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of the Act. IN. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and Alleged 8(a)(5) Allegations In the latter part of February 1971 evidently prior to the commencement of the Union's organizational activities or without knowledge thereof Stanley Levinson, the owner and operator of Respondent, called his employees together at what was called the "forklift" meeting since it took place near the forklift. Most of the employees were present along with Levinson and Gerald Fay, the operations manager and an admitted supervisor. Levinson announced that the employees could no longer have breakfast on company time since they had been abusing the privilege. He then asked if the employees had any gripes and a number of matters arose including raises and the issue of job assignments. Levinson explained that he tried to equalize the amount of time the employees worked each week and employee Haynes said he would prefer a seniority system. Levinson said he would think about it. Other matters relating to profit sharing, Christmas bonus, free loans, and hospitalization were discussed. Union organizational activities began about February 21, 1971, when Gunder Hansen, business representative affidavit of the alleged discrimmatee Wallace Mackinga. It is hereby received as such since alleged discrimmatees are considered in certain respects as if "parties," particularly in the case of sequestration of witnesses and where they file charges, etc. 200 NLRB No. 58 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and organizer for the Union, was contacted by Merlin Breland, an employee. By the beginning of March the Union received by mail nine signed authorization cards representing all the employees except Wallace Mackinga. An issue is whether he was an employee or an independent contractor. About the beginning of March a meeting was held at the union office at which were present Hansen, James Cowan, a business agent, and most of the employees. Hansen informed the employees he was going to talk to Levinson to demand recognition. Hansen asked them whether, if Levinson refused, they would strike for recognition and they indicated they would. Hansen said that he had also mentioned the possibility of going to the Board which could involve an election. Although Hansen may have mentioned the latter there was no particular consideration given to it, The employees who testified either had no recollection or recalled only that the subject was men- tioned. The emphasis was on striking for recognition in the event of nonrecognition. Thereafter Hansen went to Levinson's place of business to present him with the Union's demands. Hansen testified his recollection was that this was March 17. Levinson and Patty Sherman, his office manager, who was present, placed the time as of March 24. Levinson predicated this upon the, fact that Sherman was there and that on the 17th she was out shopping for a birthday present for her son whose birthday was that day. It also appears from the sequence of events that the date was probably March 24 and I am accordingly crediting Levinson and Sherman's testimony thiat the meeting was on the 24th. Present at this meeting were Hansen, Levinson, and Sherman. Hansen testified he introduced himself, informed Levinson that the majority had signed cards and demand- ed recognition.4 According to Hansen, Levinson asked how he knew the Union had a majority. Hansen took the cards out and laid them near Levinson's desk and said he had cards signed by the majority. Levinson then instructed Mrs. Sherman to pull out a list of Respondent's employees. According to Hansen she put the file in front of Hansen and pointed out the employees under discussion. Hansen went down the list, then reported that the majority had signed cards. There is some dispute as to how close the cards were to Levinson at this point and whether they were face down or up. Hansen testified that they were face up and within Levinson's reach. Levinson first testified Hansen put the cards on a counter about 3 feet from him face down. Subsequently Levinson said he couldn't see whether the cards were up or down since he didn't have his glasses on. Patty Sherman said that they were about an arm's reach from Hansen and beyond Levinson' s arm's reach, unless he rolled the chair over, and that they were face down. There is no question that Levinson did not look at the cards. There is a dispute about whether Levinson asked to see the cards and was refused. Levinson said he asked to see the cards and that Hansen stated he was not permitted to show them. Sherman also testified that Levinson asked to see the cards and Hansen said he couldn't but a third party "could come in and be there if he wanted to look at them." Hansen denied that he refused to let Levinson see the cards. Levinson asserted that he told Hansen he did not believe his employees had signed cards. Mrs. Sherman did not specifically testify as to this latter but did testify as set forth concerning Levinson's requesting to see the cards. Hansen denied that this was the case. Levinson testified in some detail that Hansen said he had the majority of the cards which he would not show him, that he (Levinson) said, "Well, how do I know that my employees signed these things?" and that Hansen responded, "Well, we can call an impartial third party in here, such as a minister or a priest." Levinson responded, "How about a rabbi?" to which Hansen laughed and said, "A rabbi is all right." Levinson then said, "I don't believe that my employees signed this, because we have always had an open line of communica- tion, and this is the first time I have heard of this thing." Levinson thereupon testified he said to Sherman, "Pull the payroll records and ask Gunder if he recognizes the names." Hansen was asked, "Didn't you tell him that he could not look at the cards because only a third party could do so?" Hansen responded , "He has a right to look at them at any time he wants to look at them." Q. That is not my question. A. I told him that he could look at them anytime he wants to. Q. In fact, didn't you tell him that a priest or clergyman would have to look at them? A. If he wanted to do it that way-if he wanted a third party; it is up to him. Q. In fact, he told you that maybe a rabbi would be as good as a priest. A. There is nothing wrong with that. I don't discriminate them. Q. Is your testimony now-as you sit here now- that you did not tell him he could not look at the cards unless a third party was present? A. I never told him he couldn't look at them. Whatever else the foregoing may reflect it appears there was doubt indicated by Levinson concerning the cards and discussion with respect to a third person looking at them. It is not clear why there would have been any discussion as to a third person were the cards immediately available to Levinson as Hansen claims and Levinson and Sherman deny. While there may be a question as to why Hansen would set the cards down if he didn't intend Levinson to 4 It was stipulated and I find that "all employees employed by Respondent; excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act" constitute an appropriate unit. It was also stipulated and I find that as of March 24, 1971, there were either 9 or 10 , persons in the appropriate unit depending on whether or not Mackinga was an employee or an independent contractor Authorization cards of all 10 (including Mackinga) were received in evidence, 8 dated in February 1971, 1 dated March 6, 1971, and 1 for Mackinga dated March 24, 1971. It was stipulated and I find that the employees in the unit as of April 12, 1971 , the first day of a strike were the same as those on March 24, 1971. It is clear and I find that at the time of the meeting on March 24 and at all times material a majority of employees in the appropriate unit had executed cards designating the Union as their representative. INDEPENDENT RAPID TRUCKING 369 look at them, I note that they were not placed on Levinson's desk but on a counter within reach of Hansen.5 It appears more probable and I conclude that the discussion as to a third person (in part corroborated by Hansen) came about as testified to by Levinson. Apparent- ly nothing came of the third person discussion as Hansen thereafter checked a list of employees and according to Hansen asserted he had cards for "just about everyone of these employees." According to Levinson, Hansen said, "Yes, Stan I have got them all" and that he replied, "Well, I don't believe you have got them all," and Hansen then asked him to sign a recognition agreement. In any event it is clear that: Levinson did not look at the cards; Levinson did ask Sherman to furnish a payroll list; Hansen did look at the list and state that he had "about everyone" or "them all"; and also at some point Hansen gave Levinson a recognition agreement and asked him to sign it (which as set forth post Levinson did not sign). Levinson, according to Hansen, asked what kind of contract he proposed. Hansen proposed the standard contract. Levinson said if he had to pay union wages he would go broke. Hansen replied that under certain conditions there could be some relief from the provisions of the standard contract. There was then some discussion as to the basic economic provisions with Levinson drawing out of his desk a copy of a union contract which he had. Hansen said that in response to Levinson's questions he told him the cost of wages, health and welfare, prescrip- tion, dental, and pension plans. In connection with the pension plan, Hansen explained some relief could be given here and possibly a delay in implementing the plan. According to Hansen he gave Levinson copies of the contract, health and welfare brochure, dental brochure, and prescription brochure and then Hansen telephoned his secretary to get the exact cost of the health and welfare, dental, and prescription plans and he conveyed the information to Levinson. After some discussion of other matters, the meeting ended. Hansen suggested that Levinson read the contract and brochures and said he would call in about a week to set up another meeting to which Levinson agreed. As set forth, during the course of the meeting Hansen presented Levinson with a recognition agreement and again asked Levinson to sign it at the end of the meeting. Levinson said he would not sign anything without talking to his attorney and that he would advise Hansen of what the attorney said. There is no question that Levinson did not agree to sign a recognition agreement at this or any time and, in fact, said he would sign nothing without his attorney's approval. Hansen testified that he specifically asked Levinson to ',sign the agreement but that Levinson did not sign it. Hansen testified that about midway during the meeting, ". . . I wanted him to understand that this was merely a letter of recognition. He was not signing a contract. That we would have to-by law-take the proposals to the employees, such as this." According to Hansen, Levinson said he would not sign because "he wanted to consult with someone...: . Hansen further testified, "He said he was going to have to have time to sit down and read the contracts and everything else, because he didn't want to sign anything without full knowledge." Hansen denied that Levinson said he would call his lawyer and call him the next day. Subsequently Hansen testified, "He might have said he was going to call. He wasn't going to sign until he talked this over with his lawyers, and he wanted time to read. He also wanted time-he didn't have time; very busy man; didn't want-he wanted to read the contract and all those brochures. I don't blame him." Hansen also stated that when he left the office he told Levinson to read the contract and brochures and told Levinson he would be back in a week and would give him a call. Hansen denied receiving a call from Levinson then or at any time but said he called Levinson a week or 10 days after the meeting. Hansen was subsequently asked: Q. At anytime during this meeting did he tell you that he would recognize the Teamsters Union? A. No, he did not. Q. Or that he would sign that form? A. No. Following the meeting, Levinson testified and Sherman corroborated, that he expressed doubt to her about whether the employees had signed authorization cards. Shortly thereafter Levinson went out behind the warehouse where employee Ron Wilson was working on a trailer. He asked Wilson if he had signed an authorization card and Wilson answered that he had and all the men had signed. Levinson testified that shortly after the meeting, "I said I was probably going to sign a contract eventually. Q. Who did you say that to? A. I don't know. Several people in the place." Virginia Wilson, who worked in the office, testified that she asked Levinson "What was going to happen and he said that he was going to sign the contract because the guys had filled out cards and he wanted to first talk with his attorney and his accountant, because it would be foolish of him to sign something when he didn't know exactly what would happen, you know. He had to know exactly where he stood and I agreed.... . At the meeting of March 24 it was understood that Levinson and Hansen would meet again. Levinson told Hansen he would call him after he consulted with his attorney. Levinson attempted to reach his attorney but was unsuccessful and testified he called Hansen and informed him that he had not been able to reach his attorney but would contact him as soon as he had. Hansen denied receiving such a phone call. Levinson did reach his attorney who told him he was not familiar with labor matters and referred him to another attorney who was also unfamiliar with labor relations. Thereafter Levinson contacted Mrs. Gladys Selvin, a labor relations consultant and representative, and arranged to meet with her on the morning of April 6. In the meantime Hansen telephoned Mrs. Sherman and testified without denial by Mrs. Sherman that he had two telephone conversations with her either the same day or on successive days and it was agreed Hansen would meet Levinson again on March 30 at 2 p.m. Hansen and Cowan 5 However, the recognition agreement was placed by Hansen on Levinson's desk. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went to the plant at 2 o'clock on March 30 (or 31) and testified that upon arriving at the plant they went to a catering truck parked nearby and Mrs. Sherman came out and told them Levinson would not be able to keep the appointment. Mrs. Sherman then said Levinson had said to set up a meeting for April 6 at 2 p.m. Hansen agreed to meet Levinson at that time. In the meantime, as set forth, Levinson met with Mrs. Selvin on the morning of April 6. Hansen and Cowan arrived at the plant at 2 p.m. that day and went to the office. Mrs. Sherman presented Hansen with the business card of Mrs. Edwin Selvin, the aforesaid labor relations consultant, and said that if he had any business with the Respondent he was to contact Selvin. Before leaving the premises Hansen made a call from Respondent's telephone to Mrs. Selvin. Hansen contends that he told her he was a business representative of the Union. Selvin and Sherman testified that Hansen said that he was an employee. However, it appears that Selvin in the course of the conversation at least understood that the Union was seeking recognition. Also, during the discussion it is evident that the word "election" was being used by Hansen and Selvin. Hansen testified he told Selvin he had a majority of cards and was demanding recognition. According to Hansen, Selvin expressed doubt concerning the Union's having a majority of signed cards and that if he wanted recognition he would have to go to the Board and through its processes. Hansen said he then requested Selvin to agree to "a vote today." According to Hansen, Selvin refused stating she was in a hurry and was going to the Board. Mrs. Selvin testified she had a call from a man who identified himself as an employee who told her he understood she thought there should be an election and said, "Come on down; we will have an election. We will have an election any time." Selvin testified she suggested he file a petition for an election and that it would be better to have an election because "you claim you represent all these people." Sherman testified that before Hansen and Cowan left, Hansen said he wanted to talk to Levinson and that there would be a strike against Respondent if he did not talk to Levinson. On April 8 or 9, Hansen telephoned Ron Wilson and told him Respondent refused to recognize the Union and to find out if the employees still were willing to strike for recognition. Wilson talked to the employees about going on strike and informed them there was going to be a strike because Hansen was having problems getting Respondent to bargain with the Union. About April 10 Hansen called Wilson. Wilson said he talked to some employees and they still wanted to strike for recognition. Hansen told Wilson the strike would start Monday, April 12, on which date a strike commenced. Prior thereto shortly after the meeting of March 24, Levinson put into effect a "seniority" method of assigning employees instead of the one he had been using. This had been an "equalization" method. Because of the skills or lack of skills and qualifications with respect to driving and other work requirements, it appears that there was probably not a great deal of difference in the effect of the different methods since seniority could not be literally followed in any event. This utilization of "seniority" was in effect for approximately 10 days and ceased April 6 because Selvin had advised Levinson that he was to make no changes in the working conditions. As previously indicated there had been some discussion about desire for seniority at the "forklift" meeting. Levinson testified that he had put the seniority into effect because he had been thinking about it; he had read the union booklet: ... And apparently, to the best of my knowledge, I thought that I'm going to have to comply with some of these things that the Union came through and proposed to me at that meeting with Hansen, and that is to the best of my knowledge, sir. s s * * : I would think I could say that perhaps Mr. Hansen's visit, and reading the book over, were a corroborating factor to instituting the seniority system. The General Counsel argues in essence that Levinson had at the meeting on March 24 by discussing the contract and going over provisions, including Hansen's calling his office for more detail concerning pension aspects, in effect, recognized the Union even though it is undisputed that Respondent would not sign a recognition agreement or anything without legal advice. The General Counsel's argument necessarily includes a contention that any question Levinson may have had as to the Union's majority was negated by Hansen's checking the list of employees, by Levinson subsequently questioning Ron Wilson who said everybody had signed, and by Levinson's conduct allegedly indicative of recognition of the Union, such as his stating to several people that he was "probably going to sign a contract eventually," and his purportedly informing Virginia Wilson that he was going to sign a contract, but first had to talk with his lawyer and accountant. The General Counsel also contends that Levinson led the Union to believe he was going to negotiate and caused it to delay in resorting to other methods of establishing majority status. However it appears that Levinson was seeking advice from an attorney, that he had contacted two attorneys, neither of whom could advise him as to labor matters and that he then did retain Mrs. Selvin. Whether or not he called Hansen as he claimed, it appears that on March 30 or 31 after Sherman had evidently arranged an appointment, that Sherman told Hansen on his arrival that Levinson was unavailable for business reasons and made an appointment for 2 p.m. on April 6. On that morning Levinson had arranged for Selvin to represent him and instructed Sherman to refer Hansen to Selvin, which resulted in the telephone conversation referred to supra. From the foregoing General Counsel presents an arguable contention but to the contra the record is specific that Levinson had not recognized the Union and had raised questions as to the Union's majority and representative status. It is also evident that Levinson was somewhat confused by the situation. His statements that he "proba- bly was going to sign a contract eventually," while at the same time he was asking questions about union member- ship, together with his pursuit of knowledgeable represent- ation, indicate both lack of understanding and indecision. INDEPENDENT RAPID TRUCKING As set forth, it is clear that at no time did Levinson look at the cards which Levinson testified Hansen said he was not permitted to do, that the discussion as to having a third party look at the cards lends support to the conclusion that Levinson was not free to look at the cards, that Levinson at no time admitted or acknowledged that the Union represented a majority, and that he did not recognize the Union. Further it is evident upon Mrs. Selvm's acceptance of representation of the Respondent that she had suggested to Hansen that the processes of the Board be followed with an election conducted by the Board. The situation would accordingly appear to come within the ambit of the more recent Board cases which in effect have said that the Board would find an 8(a)(5) violation where there was both admitted employer knowledge of majority status and the absence of any evidence that the employer was willing to resolve any lingering doubts of majority status through election procedures, but where there appear to be doubts as to majority status and/or where the employer appears willing to resolve any doubts of majority status through the election procedures, that the Board absent substantial unfair labor practices would be unwilling to find an 8(a)(5) violation. See Linden Lumber Division, Summer & Company,6 190 NLRB No. 116, where the majority of the Board said: The facts of the present case have caused us to reassess the wisdom of attempting to divine, in retrospect, the state of employer (a) knowledge and (b) intent at the time he refuses to accede to a union demand for recognition. Unless, as in Snow & Sons, the employer has agreed to let its "knowledge" of majority status be established through a means other than a Board election, how are we to evaluate whether it "knows" or whether it "doubts" majority status? And if we are to let our decisions turn on an employer's "willingness" to have majority status determined by an election, how are we to judge "willingness" if the record is silent, as in Wilder, or doubtful, as here, as to just how "willing" the Respondent is in fact? We decline, in summary, to reenter the "good-faith" thicket of Joy Silk,2 which we announced to the Supreme Court in Gissel we had "virtually abandoned ... altogether," id., 594. 2 Joy Silk Mills, Inc, 85 NLRB 1263, enfd. as modified 185 F.2d 732. These considerations lead us to the conclusion that Respondent should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election. We repeat for emphasis our reliance here upon the additional fact that the Respondent and the Union never voluntarily agreed upon any mutually acceptable and legally permissible means, other than a Board-conducted election, for resolving the issue of union majority status. By such reliance we recognize and encourage the principle of voluntarism but at the same time insure that when voluntarism fails the `preferred route" of secret ballot 371 elections is available to those who do not find any alterna- tive route acceptable. [Emphasis supplied.] It appears herein that Respondent both had some question as to the Union's majority and that it had indicated a willingness to resolve this through the Board's processes. On that basis I find no violation of Section 8(a)(5) of the Act. The next question is whether or not the employer engaged in such unfair labor practices as to justify a remedy under the Gissel7 concept. This could depend on the resolution of the other allegations in the complaint which will be discussed hereafter. However, to the extent I hereafter am finding any violations, I do not consider such would support a Gissel remedy and accordingly conclude that such remedy is inapplicable herein and find no violation of Section 8(a)(5) on the basis thereof or any other basis. On the basis of the foregoing findings I also find that the strike which followed nonrecognition was not an unfair labor practice strike. B. Alleged Acts of Violation of Section 8(a)(1) One of the alleged acts of violation of Section 8(a)(1) is the claimed interrogation of Wilson set forth above. Under the circumstances and on the basis of the cases I conclude that this one incident where Levinson asked Wilson about joining the Union would not be such interrogation as to be violative of Section 8(a)(1) and I so find. With respect to the adoption of the seniority policy instead of the equalization method of assigning work, (1) it was only in effect about 10 days and (2) there does not appear to have been any substantial effect therefrom. I conclude that insofar as such may be deemed a violation it should be viewed as of insufficient impact to warrant a finding of violation and I accordingly make no such finding. The third instance of alleged violation of the Act concerns the taking of pictures . There is some controversy as to whether Levinson or Hansen started taking pictures on the opening day of the strike while the pickets were out in front. There is no question that Hansen had a camera out and Levinson had a camera and that Levinson took a picture of Hansen and the employees, also that Levinson feigned the taking of several more pictures that day and in addition on the next day. Levinson testified as follows: Q. (By Mr. Hibner) Mr. Levinson, why did you take the picture? A. Because it was a big joke. We were retaliating against Hansen for taking my picture. Everybody was laughing, so I went out and I told the girls, I said, "Let me take a picture of this guy joking around." So I took the picture. Q. You were kind of mad at Hansen that day, were you? A. I don't get mad. I was angry. Levinson added he was angry: A. Because I believe he was harassing me, making 6 Compare Arthur F. Derse, Sr, President, and Wilder Mfg Co., Inc., 185 7 N.LR.B v. Gissel Packing Co., 395 U.S. 575 (1969). NLRB No. 76. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that loud music in the car, of which I have a tape, if you want it to be offered in evidence. Respondent also argues that the pickets were evidently smiling, that Levinson knew all of them, that the Union was playing, very loudly, a number of Tennessee Ernie Ford's called "Sixteen Tons," that Hansen was honking a horn at times, and that the police had been called because of complaints of others. Respondent contends that under all the circumstances there could be no substantial coercive effect from the picture taking (or feigned taking) by Levinson. To some extent this may be true but nevertheless Levinson did not have any apparent valid justification for taking pictures such as in pursuit of an injunction, since there does not appear to have been any activity occurring or which could be used for such purpose. I accordingly find that the picture Levinson took and the feigning of pictures was in violation of Section 8(a)(1) of the Act as alleged. Employee Richard Haynes testified: Q. Would you please describe what you and Mr. Fay said to each other? A. Well, he told me that he would be glad when all this was over, and he asked me if I wanted to talk to Stan, and he said that he had heard that some of the guys wanted to talk to Stan. And I said no, that I didn't. I said that as far as I knew, nobody else did either. He told me that Stan was making a package deal or something for us, with certain benefits, such as hospitalization plan and holidays-paid holidays, and loan privileges up to $200. Then he asked me-he said, "Are you sure you don't want to talk to Stan?" I said, "No, I don't have anything to say." Fay denied this conversation but admitted that he did ask Ignacio Hidalgo and Wallace Mackinga if they would like to talk to Stan to try to work out an end to the strike. Fay explained that the reason for talking to Hidalgo and Mackinga was that he had heard rumors that the men wanted to talk to Stan (Levinson). Fay said they were willing to talk but Stan wouldn't talk to Mackinga. Fay also said he was at the "forklift" meeting. He admitted "I tried to get meetings together with Stan and the men, to try to break this thing up and go back to work, get them back to work." I find the latter inconsistent with his denial of his conversation with Haynes and accordingly credit Haynes and find that Respondent thereby sought to bargain or deal with the employees at a time and under circumstances whereby such conduct violated Section 8(a)(1) of the Act. C. The Termination of Wallace Mackinga Mackinga worked as an employee from February to sometime in December 1969. Respondent was in the process of developing its overseas business and Mackinga worked in part on that prior to December 1969 and also on other jobs and work of the'Company. He was then under the supervision of Gerald Fay, the operations manager. Mackinga was paid hourly and was clearly an employee during this time. There is some dispute as to the extent of time he devoted to the overseas work prior to December. There is no question that after December when Mackinga allegedly became an independent contractor that the overseas work was performed almost entirely by him although Levinson said that Mackinga got the "cream" of the work with the rest left for the Company to take care of. The pertinent facts with respect to Mackinga's employ- ment before December and after are as follows: On the morning of April 12, 1971, Levinson testified that he arrived and remarked that Wallace Mackinga had failed to deliver the goods in his truck . Mackinga said the truck would be picketed if he delivered the goods. Levinson, pursuant to instructions from Mrs. Selvin , asked Mackinga again to make the delivery and Mackinga refused. Levinson then informed him that their relationship was terminated. Mackinga was accordingly terminated and thereafter the overseas work performed by him was handled primarily by employee La Fortune. As set forth, the issue is whether or not Mackinga was an employee or an independent contractor . Mackinga began employment for Respondent in February 1969 and from that time until December as stated, there is no issue or question that he was an employee . He was hourly paid, received paid holidays, filled out a timecard, was subject to overtime, and withholding and social security were deducted from his pay. He was covered by workmen's compensation and used and operated equipment owned by Respondent which paid all of the expenses in connection with the equipment. During the period of February 1969 to December 1969, Mackinga hauled containerized cargo to and from port, called "overseas" cargo, and in addition performed work in driving, packing, and loading of loose household goods. Respondent was then in the process of developing its overseas business. There is some dispute as to how much work Mackinga performed on the overseas work prior to December 1969. According to him he was so engaged a majority of his time and he did most of this work. According to Operations Manager and Dispatcher -Super- visor Gerald Fay, the work was equally divided among four people-Mackinga and three other drivers. In any case, Fay selected the driver to perform the work and assigned the truck. Mackinga or the person assigned to the work was then informed by Kermit Haines of the jobs to be done and Mackinga and Haines jointly worked out Mackinga's schedule for performing those jobs. Although Mackinga testified that other employees only did container work in 1969 when the workload was too much for him, as will appear there is an inconsistency therein, since Mackin- ga testified that after he became a lease operator (in December 1969), although the overseas work had increased substantially that he performed almost all of it. While Mackinga may have performed more of the work than others in 1969, it is evident and I conclude that a substantial amount was then being regularly performed by other employees. In 1969 while admittedly an employee Mackinga received pay of $7,731 and the highest paid employee, Adkins, received about $8 ,333. Mackinga in the past year had a gross income of $28,000 with a resultant net substantially higher than before. Mackinga had indicated to Levinson that he would like to make more money and be an independent operator and INDEPENDENT RAPID TRUCKING Levinson who considered Mackinga to be an ambitious person agreed to an oral lease operator relationship. Pursuant to that relationship under an oral agreement Mackinga made a down payment of $1,000 and was to pay off the balance as he was able to on a truck and trailer then owned by Levinson at its fair market value. During the interval and throughout the relationship Levinson retained the title certificates until the truck was paid for, this was obviously for payment. Another reason was that Levinson carried the insurance on the truck which was substantially less expensive as part of a group than it would have been for Mackinga to buy it individually. The truck continued to have removable signs containing the name Stan's Vans. Employees generally wore uniforms. Lease Operator Mackinga occasionally wore a uniform but generally wore his own clothes. In connection with his operation of the truck, Mackinga charged some repairs and tires to Respondent's credit but these were deducted from amounts due and owing to him. Mackinga paid for the oil and gas. There was no workmen's compensation carried as to Mackinga by Respondent. Mackinga did not receive overtime nor punch a timecard, nor was withholding tax, social security, unemployment, or other taxes deducted from amounts due to Mackinga. Mackmga filed and paid an estimated tax. Pursuant to his agreement he billed the Respondent at a rate of 65 percent of the gross revenue received by Respondent for the jobs Mackinga performed. Mackinga received payment from the Respondent in the form initially of a drawing account of $100 a week subsequently increased against his invoices to take care of certain current expenses but also received payments from Respon- dent in connection with Mackinga's invoices when Res- pondent had collected from the persons for whom services had been performed. During the time that he was performing services as lease operator, Mackinga had no connection with Fay and worked solely on overseas commodities and shipments. Mackinga performed almost all of this work except for a small number of items which apparently were not worthwhile, but which Respondent continued to take care of. Although Mackinga testified he did not turn down any work, Levinson testified as set forth that Mackinga got the "cream" of the work and Respondent had to handle some unprofitable work. With respect to the handling of his work, at first Mackinga continued to work with Haines in the scheduling of the work and subsequently with Lynn Benson who succeeded Haines. According to Mackinga the relationship with Haines was about the same afterward except he did his own routing. In other words they worked out the scheduling together and he did his own routing. Mackinga testified concerning his work relationship and the schedul- ing as follows: Q. All right. You would pick your own jobs though, wouldn't you? A.- We would set up the runs. I didn't necessarily pick my jobs, no. Q. You together would- 373 A. Together we would set the runs up so we would accomplish the most work with the least amount of equipment. Q. And also you wanted to make sure if possible that you could haul materials both ways on runs so that it would be more profitable to you? A. More profitable to both of us; right. Subsequently he stated: Q. In fact, didn't you really arrange your own schedules except when Lynn would occasionally tell you that a shipment was particularly important, and you would then do this job first? A. With Lynn I would arrange and set up the runs. Without her I couldn't do it. Without her I wouldn't know what was available or what was-what were the jobs that we were able to run, you see. * * * Q. (By Mr. Hibner) Wouldn't Lynn tell you what jobs there were and then you would make up a schedule? A. We worked the schedule out together. He was then shown an affidavit he gave the National Labor Relations Board. The affidavits in pertinent part reads: I was not dispatched by Jerry Fay. Lynn Benson, who handled orders of overseas commodities, would show me the orders. I would arrange my own schedule, except that she would occasionally tell me that a shipment was particularly important, and I would then do that job first. Mackinga thereafter testified: THE WITNESS: There are times when you can set up your own schedule, if the workload wasn't such that you were overburdened. But then again, if there was a great workload, then we would set it up to the best benefit of moving the cargo. TRIAL EXAMINER: Were there any differences be- tween you as to whether you would make one stop first and then another, or pick up something first and then another? Did that arise? THE WITNESS: No, it didn't. She might let me know that a certain portion of the shipment had to be picked up, if there was too much to run in one load, or something of that nature. Q. (By Mr. Hibner) That is what you meant by "particularly important shipments," didn't you? A. Well, there are different types of important shipments. Q. Some that needed special handling? A. Yes. Q. There would be some time pressures to have the stuff moved? A. Yes. Before Mackinga was a lease operator all of his trips appeared on the dispatch book and Respondent knew from 8 Previously received as an admission in fn. 3. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it where to reach him. Thereafter according to Levinson although Mackinga was not listed in the dispatch book Respondent did have "control" copies of their bills of lading and could figure what the run was and "call ahead and leave a message to contact us, in case we had got work in the outlying areas to bung back." While an employee, Mackinga had to give a customer a quality control sheet to fill out and report on his efficiency, but after he became a lease operator these forms were not used. Mackinga continued to have a key to Respondent's premises and go there frequently to pick up and deliver cargo from Respondent's premises and to store his truck there. Some of the principal differences involving Mackinga's work relationship following the change to lease operator were that he: (1) did no work other than overseas work; (2) owned his own truck; (3) took care of his own expenses; (4) billed Respondent at a 65-percent rate for services rendered; (5) did his own routing entirely ; (6) paid his own taxes; (7) was subject to no withholding taxes; (8) punched no timeclocks but controlled his own hours ; (9) received no holidays or vacations; (10) was not listed in the dispatch book; ( 11) was not subject to quality control reports by customers ; (12) filed or prepared no logs (as he had before); (13) could select or perform desirable jobs and leave certain less profitable ones to Respondent ; (14) could regulate his own hours although his workload was necessarily a factor therein ; (15) received remuneration which was evidently much greater ; (16) could have done work for others if he carried his own insurance ; and (17) was subject to no supervision although as stated there was a necessary working relationship with Haines and then Benson in connection with the most effective scheduling of the work, which would be of mutual benefit to both Respondent and to Mackinga in maximizing the amounts that he would make. In connection with the foregoing one question was whether Mackinga performed work for anyone other than Respondent, which he did not. Another question was whether he could have performed work for someone else. According to Levinson, Mackinga inquired about this and Levinson informed him that he could perform work for others provided he took the name Stan's Vans off the truck and obtained other insurance, since Levinson would not cover him under his insurance. Whether or not a person (namely Mackmga herein) was an independent contractor as distinguished from an employee is to be resolved by applying certain basic criteria to all of the material facts. The Board has stated that the basic criteria involves the "common law right-of-control test under which an employ- er-employee relationship exists when the employer reserves the right to control not only the ends to be achieved, but also the means to be used in reaching such ends." Further, the Board has made it abundantly clear that "the application of the test is not a `perfunctory exercise' but demands a balancing of all the evidence relevant to the relationship." 9 In connection with the above I have noted that Mackmga inquired about his ability to perform work for other employers. He was told there was no objection provided the signs were taken off trucks and he obtained other insurance. Mackinga did not do so. The instant case accordingly raises a question of whether or not a person can be an independent contractor when performing services for only one employer . Actually his freedom of movement may be as great or greater in such instance than where he performs services for several employers but one is the dominant employer who can for all practical purposes control his services. In the instant case it appears that Mackinga had more freedom and more latitude as a lease operator than as an employee but could not do anything he wanted and still maintain his relationship with Respondent. As a practical matter there were necessarily limitations and he would have to perform work in a certain fashion or there could be no relationship. The same though would appear to be true in most independent contractor relationships unless a particular contractor from either the nature of the business or the number of contracts could afford to be more independent. Independence is a relative term or matter at best. The cases that deal with this matter include the Aetna Freight Lines supra where the Board found that the drivers had such severe restrictions on what they could do and such requisites for their relationship that they could not be treated as independent contractors . The Board therein affirmed the Regional Director who said that he relied particularly on the following: ... The overall effect of the ICC regulations requiring comprehensive employer control over the operations of the drivers and ofthe leased equipment; the Employer's right to the exclusive possession, control and use of the leased equipment during the term of the leases,- the fact that a substantial majority of the owner-drivers haul almost exclusively for the Employer; the fact that all drivers are required to submit employment applica- tions,- the fact that the Employer can terminate at any time the lease agreements if the equipment is not maintained in good working condition or if the equipment is not operated to the satisfaction of the Employer; the right of either party to terminate the leases at will, any time after 30 days; the fact that payments made to the equipment owners for hauling the Employer'sfreight are for the mostpart unilaterally set by the Employer; the fact that the leased equipment is required to exhibit the Employer's name; and the requirement that drivers submit logs and physical examination reports to the Employer." [Emphasis supplied.] Concurring Board Chairman Miller stated that he relied on the following: ... The severe restrictions on trip leasing, the use of lease terminations as disciplinefor failure to accept loads, the carefullyprescribed time restrictions on deliveries, the detailed and uniformly applied rules regarding procedures in the event of delays and accidents, and the "how to do it " directions covering other aspects of the driving operation, all go well beyond governmental regulatory rules for the industry. 9 Aetna Freight Lines, 194 NLRB No. 120. INDEPENDENT RAPID TRUCKING 375 Furthermore, the payment of hourly rates for detention time, the payment of special cash and merchandise bonuses, and the unilaterally determined allocation of expenses between Aetna and the drivers suggest that there are more "employee" attributes and less independence than would be present in a true independent contractor relationship. [Emphasis sup- plied.] The instant case (re Mackinga) does not provide for or set forth most of the restrictions indicated in the Aetna case upon which the Board relied in finding an employee relationship. Rather it appears to come within the ambit of the Board's decisions in Seal Dairy, 135 NLRB 76; Reisch Trucking and Transportation Co., Inc., 143 NLRB 953; and L. C. Sinor, 168 NLRB 467, wherein the Board found an independent contractor relationship. Although I deem the issue an arguable one I believe that the differences between Mackinga the employee and Mackinga the lease operator and the facts appertaining to the latter are such as to conclude that Mackinga was an independent contractor and I so find. Accordingly the termination of his contract by Respondent was not in violation of Section 8(a)(1) and 8(a)(3) of the Act and I so find. I shall accordingly recommend dismissal of the allegations of the complaint appertaining thereto. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY employees as to wages, hours, and working conditions at a time and under the circumstances set forth above, Respondent violated Section 8(a)(1) of the Act. 5. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not otherwise violated the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in the case, it is hereby recommended that Respondent, Stanley Levinson d/b/a Independent Rapid Trucking, Long Beach, California, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) By photographing, feigning picture taking, or otherwise giving the impression of surveillance of employ- ees. (b) Attempting to bargain or deal with employees as to wages, hours, and working conditions at a time and under circumstances when such would not be proper. 2. Take the following affirmative action: (a) Post at his place of business in Long Beach, California, copies of the attached notice marked "Appen- dix A."12 Copies of said notice, to be furnished by the Regional Director for Region 21, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this decision, what steps Respondent has taken to comply therewith.13 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. Having found that Respondent engaged in and is engaging in certain unfair labor practices, I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Although I have found certain violations of Section 8(a)(1) of the Act, I do not find these of such nature as to warrant a Gissell o type of remedy herein. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, I make the following: II CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. Respondent is an employer engaged in commerce within the meaning of the Act. 3. As found above by photographing and feigning photography of employees on the picket line without justifiable cause, the Respondent has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 4. By attempting to bargain or deal directly with 10 Fn 7 supra. 11 In the event no exceptions are filed as provided by See 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." i3 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government I WILL NOT by picture taking, feigning picture taking, 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or otherwise give the impression of surveillance of employees. I WILL NOT attempt to bargain or deal with employees as to wages, hours, and working conditions at a time and under circumstances when such would not be proper. STANLEY LEVINSON D/B/A INDEPENDENT RAPID TRUCKING This is an official notice and must not be defaced by anyone. 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 . Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broadway, Los Angeles , California 90014, Telephone 213-688-5200. Dated By (Representative) (Title)