Floyd Epperson

FLOYD EPPERSON 23 Floyd Epperson and United Dairy Farmers, Inc. Charles R. Dorset Case 9-CA-6882 and United, the products are delivered in United's March 1, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On November 16, 1972, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent Floyd Epperson filed exceptions and a supporting brief, the General Counsel filed limited exceptions with a brief in support thereof and 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 only to the extent consistent herein. The Administrative Law Judge found, and we agree, that Floyd Epperson, hereinafter referred to as Epperson, violated Section 8(a)(1) of the Act when he discharged employees Archie Ball, Bob Rumpke, Charles Dorsel, and Tom Thomas because of their concerted efforts to improve their working condi- tions. The Administrative Law Judge also found that United Dairy Farmers, Inc.,' hereinafter referred to as United, is not a joint employer of these employees, and he therefore recommended that the complaint be dismissed as to United.2 While we do not disagree with most of the Administrative Law Judge's factual findings,3 in our opinion those facts, as amplified below, readily support a determination that United is a joint employer of Epperson's drivers and, as such, is equally liable for the unlawful conduct herein. Briefly stated, the record discloses that United is engaged in the processing, distribution, and retail sale of dairy and other food products. Through an oral arrangement, Epperson makes deliveries of products which United's own drivers are unable to handle. Although Epperson's drivers usually drive tractors owned by Epperson or leased by him from ' The Administrative Law Judge inadvertently failed to specifically find that Epperson and United are employers within the meaning of the Act. In view of the evidence as detailed in the Administrative Law Judge's Decision, we correct that error and conclude that Epperson and United are employers engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act. 2 In so doing the Administrative Law Judge cited Fleet Transport Company, Inc., 196 NLRB No. 61, as involving a question of joint employer status . However, we note that Fleet actually presented a question of whether certain individuals were independent contractors or employees, and did not involve a joint employer issue. trailers. The record shows-that Richard Armstrong, United's transportation manager and the "boss" of Epperson's drivers, posts the schedules and has the authority to modify . them and call the drivers directly. Armstrong has also contacted the drivers at their destination points and has given them new instructions regarding return runs. Drivers Thomas and Ball testified that they had been instructed to telephone Armstrong in case of delays or break- downs, which they did, and Thomas stated that he had used United's tire service many times. The drivers for Epperson were allowed to use all the employee facilities at United as well as United's garage and equipment for the repair of Epperson's vehicles. Furthermore, the record shows that Arm- strong would inform the drivers of specific routes to take when they had an overloaded trailer. In November 1971, Armstrong told Epperson that the Warsaw, Indiana, transfer station was complaining because driver Dorsel's truck was constantly late; as a result, Dorsel was replaced on that run. With respect to wages, the facts show that Epperson receives payments from United and pays the drivers; in addition, after Epperson received a raise from United, he raised the wages of the drivers. In our opinion, the evidence indicates that both Epperson and United take part in determining matters governing essential terms and conditions of employment of the drivers. While Epperson hires the drivers and determines their rates of pay, United, through increases to Epperson, has some indirect control over their wages. United establishes the work schedule of the drivers, has the authority to make changes in the drivers' assignments, selects routes for the drivers, and generally supervises the drivers in the course of their employment. In addition, the Warsaw incident suggests that United has some control, albeit indirect, over driver discipline. In light of all the circumstances, we find that Epperson and United are joint employers of Epperson's drivers. Accordingly, we find that both Epperson and United violated Section 8(a)(1) by discharging the four above-named drivers, and that both shall take the appropriate action as ordered below. 3 We disagree with the Administrative Law Judge's finding that Armstrong could veto a prospective employee . While the record does show that driver Dorsel discussed with Armstrong the amount of work Epperson would have before Dorsel changed from a part-time to a full-time driver, the record does not support the Administrative Law Judge 's finding that Thomas had a conversation with Armstrong before he became employed. In this regard, the testimony shows that, when Thomas closed his business in Missouri, he contacted Epperson about a job and Epperson hired him. Thomas testified that "after Mr. Epperson told me to come back here [to Cincinnati ]," he spoke to Armstrong. In our opinion, these meager facts do not support the finding that Armstrong had veto power over hiring. 202 NLRB No. 9 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, Floyd Epperson and United Dairy Farmers, Inc., Cincinnati, Ohio, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for engaging in protected concerted activities. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Archie Ball, Robert Rumpke, Charles Dorsel, and Tom Thomas immediate reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." (b) Post at their respective premises in Cincinnati, Ohio, copies of the attached notice marked "Appen- dix." 4 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondents' representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. 4 In the event that this 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." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by discharging four employees because of their concert- ed activity: WE WILL offer Charles Dorsel, Wesley A. Thomas, Robert L. Rumpke, and Archie Ball full reinstatement, and pay them for the earnings they lost as a result of their discharge, plus 6-percent interest. WE WILL NOT discharge or discriminate against any employee for engaging in protected concerted activities. WE WILL NOT unlawfully interfere with our employees' union activities. FLOYD EPPERSON (Employer) Dated By (Representative) (Title) UNITED DAIRY FARMERS, INC. (Employer) Dated By (Representative) (Title) 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. DECISION STATEMENT OF THE CASE IvAR H. PETERSON, Administrative Law Judge: I heard this case in Cincinnati, Ohio, on August 29 and 30 and September 6, 1972. Briefly stated, the complaint issued by the General Counsel alleged that the two Respondents, Floyd Epperson and United Dairy Farmers, Inc.; had been, in effect, joint employers of the persons here involved who had been, allegedly, terminated in violation of the Act. These persons are: Charles R. Dorsel, Wesley A. Thomas, Robert L. Rumpke, and Archie Ball. At the hearing counsel for United Dairy Farmers, Inc., herein called United, moved that the complaint be dismissed as to it on the ground that it was not a joint employer of the four alleged discriminatees. I took this motion under advisement and afforded the parties time to file briefs with me. Counsel for both parties did file timely FLOYD EPPERSON 25 briefs, and, on September 15, I denied the motion to dismiss the complaint as to United. The complaint, in substance, alleges that supervisors of the Respondents engaged in conduct violative of the rights of employees as guaranteed in Section 7 of the Act.' Upon the basis of the record in the case and my observation of the witnesses as they testified , and a careful consideration of the briefs filed with me by counsel for all the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION Epperson, a sole proprietorship, operates a trucking business and has hauled merchandise for United since the early part of 1971. During the 1971 calendar year, Epperson received revenues of approximately $95,300 for services rendered to United. This figure includes some $22,000 received for hauling merchandise from Warsaw, Indiana, to Ohio. In the year 1972, up to the date of the hearing, his revenues received from United were some $80,000, of which approximately $33,000 was derived from operations in interstate commerce. During the year ending July 2, 1972, Epperson made 406 trips hauling milk for United from Warsaw, Indiana, to United's Ohio locations. The record shows that each tank of milk hauled by Epperson for United was valued at between $2,000 and $3,000. It thus appears that the value of the milk hauled by Epperson for United in interstate commerce was at least $812,000 in a I-year period. Each of the four alleged discnminatees testified, without contradiction, that during their period of employment with Epperson they hauled only merchandise belonging to or destined for the use of United. Indeed, Epperson admitted that during the calendar year 1971 he received 95 percent of his gross revenue from services he performed for United, and that from January 1, 1972, until the date of the hearing, his business consisted exclusively of services performed for United. Truckdriver Dorsel testified that before accepting a full time job with Epperson he discussed with Richard Armstrong, United's transportation manager, the amount of work that would be made available to Epperson by United. Truckdnver Thomas also had a conversation with Armstrong before he became employed by Epperson. It seems clear from the record that Armstrong, if he chose to do so, could veto a prospective Epperson employee. Drivers Thomas and Ball testified that while working for Epperson they drove tractors belonging to United about 25 percent of the time and that on such occasions Armstrong would assign the tractor to be used by them. Neil Woods, a witness called by United, testified that two tractors owned by Epperson bear United signs. In addition, Armstrong testified that United leases and maintains the trailers pulled by Epperson employees and also carries the insurance on the trailers and the merchan- dise. The record is clear that Epperson's drivers had standing instructions to call United in case of any mechanical failure of a trailer they were pulling. Driver Dorsel testified that he was told to check out United trailers and to report any deficiencies to United . Further- more, drivers Thomas and Ball testified that they had each transferred equipment for United, that is, taking new equipment to other locations and bringing equipment to Cincinnati for repair . Thomas added that he received extra compensation for these services from United through Epperson, and Dorsel testified that he had been paid directly by United's Armstrong for taking United trailers to the wash rack. The fuel for Epperson's tractors was obtained at United's facilities and United 's Armstrong and Office Manager Wallace Underwood stated that credit was extended to Epperson for the amount of the fuel used and deductions were made from payments to Epperson for services he rendered. In addition, drivers Ball and Rumpke stated that they had parked Epperson's tractors on United property between loads, including overnight. Each of the alleged discriminatees testified that Epper- son had told them that Armstrong was "the boss " and that they should take whatever orders he gave them. Armstrong drew up the schedules for the drivers and assigned them their runs . He determined the times when runs were to depart and posted the schedules next to his office at United's plant. Armstrong testified that he could modify the schedule by adding or canceling runs and in this regard he would call Epperson's drivers directly. Moreover, Armstrong got in touch with Epperson drivers at the destination point of their runs, and would give them new instructions which required changes in their return runs, and on other occasions he has given further instructions to the drivers with respect to picking up groceries , sometimes entailing a wait of up to 6 hours for the return load. Drivers Thomas and Dorsel were in daily communication with Armstrong with respect to the times their loads were to leave, sometimes calling the dairy for that information and at other times receiving calls from Armstrong or other United employees advising them when the trailer was being loaded. Dorsel also testified that he was required to fill out daily trip reports for United and turn these over to Armstrong. The drivers for Epperson were allowed to use all the employee facilities at the dairy, such as the cafeteria, lavatories, showers, and mechanical shops and also obtained free ice cream. In addition, the record is clear that the garage of United and equipment therein housed was available for use in the repair of the equipment owned by Epperson and, in fact, was so used. The work done on Epperson equipment in United 's garage was performed both by Epperson drivers and at least one United mechanic. Concerning the four alleged discriminatees, Armstrong admitted to Board Agent Weir that he did not want Epperson to rehire them. Armstrong testified that he did not want the four drivers reemployed by Epperson because it seemed to him that they were involved in a union. There is credible testimony that Epperson told driver Ball, about a week after the terminations, that he (Epperson) did not think that United would permit him to reemploy Ball and Rumpke. Epperson further testified that he "knew" that United would not permit him to rehire Thomas and I These are Floyd Epperson-owner of Respondent Epperson ; Richard Wallace Underwood-office manager for Respondent Dairy Farmers Armstrong-transportation manager for Respondent Dairy Farmers, and 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dorsel. In this, Epperson admitted that he felt that he should remove Dorsel from the Warsaw, Indiana, run because of a suggestion made to him by Armstrong. On the basis of these facts and circumstances, counsel for the General Counsel concludes that the "unavoidable conclusion" is that United and Epperson were and continued to be joint employers of the alleged discrimina- tees. He further asserts that this conclusion is "based primarily upon the exercise of control over Epperson's employees by agents and supervisors" of United. Because of the "close connection of the four discnminatees with" United's principal enterprise the management of United "of necessity exercises close control over" the daily workweek of the drivers "as a matter of economic reality."2 Additionally, he states that the Board, with approval by the courts, has found point employer status in similar circumstances, and in support thereof cites Man- power, Inc., of Shelby County, 164 NLRB 287 (1967). Counsel for the General Counsel additionally argues that the "complete economic dependence of Epperson in this matter, by his own admissions and the financial records furnished by him, establish that the continuation of his business depends upon his economic association with" United. In support of this contention the General Counsel cites a number of cases.3 Counsel for the General Counsel, addressing himself to the definition of the term "employee" in Section 2(3) of the Act, wherein it is provided that the term "employee" "shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise" argues that, in the light of Austin Company, 101 NLRB 1257 (1952), and the determinations made by the Supreme Court in N.L.R.B. v. Hearst Publication, Inc., 322 U.S. I11, and Phelps Dodge Corp. v. N.L R.B., 313 U.S. 177, the foregoing interpretation of the term "employer" ought to "apply to this situation wherein Section 8(a)(1) of the Act, not explicitly delimited by Congress, is involved." In sum, counsel for the General Counsel contends that the evidence in this record establishes that Respondent United did, in fact, exercise "effective and real control over the job rights of the four discharged drivers" and that Epperson has a substantial community of interest with the Respondent United which exercises "an economic power over Respondent Epperson to which Epperson must yield." On the other hand, Respondent Epperson and Respon- dent United argue that the drivers involved are not employees of Epperson but are independent contractors. Respondent United, in its brief, considers a long series of cases and concludes that United does not have the "right of control" employees of Epperson and, accordingly, cannot be held to be a joint employer with Epperson. He correctly points out that each case involving the "joint employer" issue must be decided on the individual facts of the particular situation. United owns and operates about 135 retail convenience food markets and also operates a dairy and a processing plant in Cincinnati. Epperson owns and operates about four trucks. In effect, Epperson 's services for United 2 In support of this conclusion counsel cites the decision of the United States Supreme Court in the Boire v The Greyhound Corp, 376 U S 473, in which court stated "that the question of whether Greyhound possessed sufficient control over the work of these employees and qualified as a joint employer with Floors' is a question which is unaffected by any possible consist in making deliveries of products which United's own employees are unable to handle . Epperson provides his own equipment, storage, drivers, insurance, operating expenses, and all other items of expense involved in his operation. The drivers who are employed by him are compensated by him and in all other respects regulated by him. He is responsible for complying with Federal and state regulations and the payment of state and local taxes. United issues schedules of the loads it desires Epperson to deliver. The four drivers testified that they had been told by Epperson that Armstrong was "the boss" and that they should take whatever orders that he gave them . Armstrong determined the times that all runs would depart and posted schedules next to his office . In addition, Armstrong modified the schedule by adding or canceling runs and on those occasions he would call Epperson's drivers directly. Armstrong also contacted Epperson drivers at the destina- tion point of their run and gave them new instructions regarding the return run and on some occasions directed the drivers to pick up groceries . Thomas and Dorsel testified that they contacted Armstrong on a daily basis concerning the times their loads were to leave by calling the dairy directly or receiving calls from Armstrong or other United employees . Dorsel testified that he was required to fill out a daily trip report for United and turn them over to Armstrong. Thomas and Ball testified that they had been instructed to call Armstrong in any situation involving a problem on the road such as delay or breakdowns; in addition, Thomas has called Armstrong for tire service on the truck he was driving . It is not disputed that Epperson's drivers had been instructed to call Armstrong directly for instructions involving an overload- ed trailer, in which case Armstrong would inform them of what route to take around the highway scales. In addition, Dorsel testified that Armstrong told him the route he should take to Warsaw, Indiana , so as to avoid the scales. In November 1971, Armstrong expressed a desire that Epperson replace Dorsel on the Warsaw run, and Epper- son did so. Thomas testified that he went to Armstrong to request an increase in wages and driver Rumpke testified that he discussed with Armstrong his desire to have taxes withheld from his pay. Counsel for the General Counsel argues that the fact that United "was the most was clearly demonstrat- ed by the fact that only after Epperson was given an significant factor in the employment situation of the Epperson drivers increase in the rate paid him . . . did the drivers receive an increase in pay." Counsel for the General Counsel further points out that Epperson drivers used all the employee facilities at the dairy. Also, he points out that the United garage and the equipment therein contained was available for use in the repair of Epperson's equipment and was so used. Work done on Epperson's equipment in United 's garage was performed both by Epperson drivers and at least one mechanic of United. However, it was contended that the United mechanic was on his own time and in the employ of determination as to Floors' status as an independent contractor " 3 Hamburg Industries, Inc, 193 NLRB No 13, Troupe Leasing Co, 174 NLRB 200 (1969), Hoskins Ready-Mired Concrete, Inc, 161 NLRB 1492, The Greyhound Corporation, 153 NLRB 1488 (1965), and Lowery Trucking Co, 177 NLRB 13 (1969) FLOYD EPPERSON 27 Epperson while working on the latter's equipment. Howev- er, it is evident when so working the mechanic was using equipment and facilities of United. In his brief, counsel for United points to the Board's decision in Cement Transport, Inc, 111 NLRB 175 (1955), in which the Board held that two concerns were not joint employers. Additionally, he relies on Reisch Truck & Transportation Company, Inc, 143 NLRB 953 (1963). In that case the Board stated that "the determination of whether an individual is an independent contractor or an employee under the amended Act requires the application of the common law `right of control' test. Under this test, an employer-employee relationship exists where the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means to be used in reaching such end. The resolution of this question depends on the facts of each case and no one factor is determinative." The Board further noted that the independent contractor status in that case was "clearly revealed" by the "virtual freedom" the truck owners had "in deciding when or whether they will take an assignment, selecting routes of travel, in fixing the time of delivery and return, in determining whether they or others will drive their vehicles, and by their freedom to select their own maintenance facilities ." The Board further pointed out that the alleged point employer "does not withhold income or social security taxes, or pay for workmen's compensation for the drivers of the leased tractors, or provide the employment benefits of its own employees to the owners and their drivers, nor are its rules and regulations given to or applied to the over-the-road drivers." More recently, in Fleet Transport Company, Inc., 196 NLRB No. 61, the Board refused to hold point employer status in a situation quite similar to that obtaining here. Upon a consideration of all the facts in this case and the applicable Board precedents, I come to the conclusion that United is not a point employer of Epperson's employees. Accordingly, I shall dismiss the complaint as to United. II. THE ALLEGED UNFAIR LABOR PRACTICES There is no dispute that several of Epperson's employees spoke to him before March 12, about arranging to withhold taxes, contributing to social security, and partici- pating in workmen's compensation programs and employ- ee hospitalization plans. Epperson failed to undertake any affirmative action to implement these employee requests. About March 1, when Epperson had not taken any action with respect to these matters, the four drivers decided to hold a meeting at employee Thomas' home. This meeting was held on Sunday, March 12, and they discussed improvements in their terms and conditions of employ- ment. Rumpke, at the request of his fellow workers, prepared a list of matters in which the employees were interested, reading as follows: er Equalize out the weeks on trips with Warsaw, Ind. included for all drivers Fix speedometers brown KW caliberate one on 1970 Raise in pay first month Archie Ball Bob Rumpke Charles Dorsel Tom Thomas Each of the employees present-Ball, Rumpke, Dorsel, and Thomas-signed the document. During much of the afternoon of March 12, a Sunday, the assembled employ- ees attempted to get in touch with Epperson in order to present to him their list of demands; however, they could not reach him that afternoon. Thomas was designated as the employees' spokesman for the purpose of getting the demands to Epperson at the earliest opportunity. Thomas finally did reach Epperson on the evening of March 12 and told Epperson that the four employees had met and discussed various improvements in their employment relationship. Epperson asked Thomas to read to him what the employees wanted, which Thomas did. Epperson replied that he did not have to talk to the employees, that they were all fired. He told them that they should bring their keys down and pick up their checks. That evening, Thomas again talked with Epperson but the latter adhered to his position. During the evening Dorsel and Rumpke also engaged in telephone conversations with Epperson but the latter stated there was nothing to discuss and that the employees were all fired, that he wanted them to turn in their keys and pick up their final checks. Respondent Epperson's only defense presented at the hearing was that employees quit their employment rather than having been discharged. However, Armstrong testi- fied that Epperson stated to him that the drivers had been terminated because they wanted him to make an instant decision concerning improvements in their working condi- tions and that Epperson said that he had made it and that he did not then have any drivers. I think it perfectly obvious that the four drivers were summarily terminated because they endeavored to improve their working conditions, which effort obviously is protect- ed by Section 7 of the Act. Accordingly, I find that Respondent Epperson violated Section 8(a)(1) of the Act by terminating the four drivers. Upon the basis of the foregoing findings of fact, I make the following: CONCLUSIONS OF LAW 1. By terminating Archie Ball, Robert Rumpke, Charles Dorsel, and Tom Thomas on March 12, 1972, Respondent Epperson engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. Respondent United has not engaged in any unfair labor practices within the meaning of the Act. MARCH 12, 1972 Workmans compensation insurance Social Security paid Withholding tax taken out Some type of hospitali- zation-given Better relation with employee & employ- THE REMEDY In order to effectuate the policies of the Act, I find it necessary that Respondent Epperson be ordered to cease and desist from the unfair labor practices found and also 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refrain from related invasions of his employees' rights under Section 7 of the Act, and to take certain affirmative action. The Respondent, having discriminatorily terminated the foregoing employees, I find it necessary that he be ordered to offer them full reinstatement with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1960) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from the date of the termination until the date reinstatement is offered. [Recommended Order omitted from publication.]