Associated General Contractors of California, Inc.

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contractor Members of the Associated General Contractors of California, Inc.; The Building Industry Association of California, Inc.; and the Engineering and Grading Contractors Association, Inc. and Neal Hecker and James E. Bays, Petitioners and Teamsters Local Union NoL 42, Local 87, Local 166, Local 186, Local 235, Local 381, Local 420, Local 692, Local 898, Local 982, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 21-RD-1008 March 5, 1974 SUPPLEMENTAL DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY This is a decertification proceeding which arose upon a petition filed by owner-operators of dump truck equipment in the building and construction industry in Southern California. The petition was filed on February 26, 1971, for the purpose of obtaining an election in a bargaining unit of construction industry drivers covered by the South- ern California Master Labor Agreement between the Teamsters Unions involved herein and three contrac- tor associations. Hearings were held in Los Angeles between September 7 and October 12, 1971. At the conclusion of the hearings the case was transferred to the Board for decision, which was rendered on January 17, 1973. In its decision, the Board found that the owner- operators on whose behalf the petition had been filed were "employees" within the meaning of the Act and entitled to participate in the decertification election which they sought. The Board, however, remanded the casq to the Regional Director for the taking of additional evidence relating to the unit, eligibility, and issues relating to joint employer relationship. Pursuant to the remand order, further hearings were held in Los Angeles in April 1973 before Hearing Officer Theodore B. , Horn. At the conclusion of those hearings, the case was again transferred to the Board for decision. Briefs have been filed by all parties involved. The Board has reviewed the rulings of the Hearing Officer made at the hearings and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has reviewed the entire record in this case and makes the following findings. The Petitioners and Employers contend that the owner-operators have among themselves a communi- ty of interest separate and apart from that of the employee-drivers employed by the contractor mem- bers of the associations. They urge that the election should therefore be conducted in a unit which consists solely of owner-operators. This contention is identical to the one made by the Petitioners and Employers in the companion San Francisco case I on facts almost identical to those herein. For reasons fully stated in that Decision, which issued simultane- ously herewith, we find the contention of the Petitioners and Employers to be without merit. Accordingly, we find that the appropriate unit for the election is the contract unit, which consists of both owner-operators and employee-drivers covered by the contract. In this case, the Unions have withdrawn their suggestion that owner-operators and employee-driv- ers, employed by those contractors known as "short formers" who are not members of the multiemployer association but who execute with the Unions separate "short term" agreements which embody some of the provisions of the master contract, are eligible to vote. The Petitioners and the Employers concur in this view, contending that the execution of a short form agreement does not make the "short former" a party to the master agreement. In view of this agreement by the parties we find that employees employed by "short formers," whether owner-opera- tors or employee-drivers, are not eligible to vote. The Unions argue, however, that a joint employer relationship exists between the contractors and the overlying carriers. Consequently, they contend that both the owner-operators and the employee-drivers referred by the overlying carriers should be perrrutted to vote. The thrust of the point employer contention is the Unions' argument that the overlying carrier exercises control over the owner-operator by its ability to decide whether or not a particular owner-operator will be referred to a job. The record reveals, however, that once the owner-operator is on the job he has very little contact with the overlying carrier and that in fact it is the contractor who exercises the supervisory and disciplinary control over him. Accordingly, we find the evidence herein insufficient for finding that a joint employer relationship exists between the contractors and the overlying carriers. Nor do we agree with the Unions' contention that the employee-drivers of overlying carriers should be eligible to vote. It is clear, and the Unions concede, that the employee-drivers employed by an overlying carrier are not part of the multiemployer, multiunion association unit. The Unions contend that only the owner-operators 209 NLRB No 61 Earlier both cases were consolidated by the Board were reported at 201 NLRB 311 for the purpose of deciding the employee -independent contractor issue and 209 NLRB No. 62 ASSOCIATED GENERAL CONTRACTORS OF CALIF., INC. 367 who are engaged in the building and construction industry and who have performed jobsite work and who have been on the contractors ' payrolls should be eligible to vote. They would exclude those owner- operators who, according to the Unions , are not engaged in the building and construction industry but in the business of hauling asphaltic concrete and rock, sand, and gravel from commercial production facilities . They also would exclude owner-operators admittedly engaged in building and construction but who have not accepted payroll status. The Employers take the position that the transpor- tation of any and all materials to or from the immediate geographic location of the construction area is offsite work and is not covered by the pertinent contract terms . They therefore would also exclude from voting all owner-operators who have not worked wholly within the boundaries of the work area for a sufficient period of time. The Petitioners contend there should be no requirement that an owner-operator show that he performed jobsite work as opposed to nonjobsite work in order to be eligible to vote . They contend the owner-operators do not limit themselves to a particu- lar type of work in the construction industry and that if an owner-operator performs jobsite work on one day, he may well be performing nonjobsite work on the next day. Under such circumstances, they contend, to include a jobsite qualification in the voter eligibility formula would create a gigantic administrative headache . They also oppose the Unions' contention that only time spent working in payroll status be counted towards eligibility. The Petitioners agree that work performed by owner-operators in the rock , sand, gravel, or asphal- tic concrete industry should not count toward eligibility to vote in these proceedings . They take the position, however, that the mere fact that a owner- operator hauls rock, sand, gravel , or asphaltic concrete from a commercial plant to a construction site does not automatically mean he is not perform- ing work in the construction industry. Rather, according to the Petitioners, it depends on whether the truck was hired by a commercial plant owner or construction contractor. Thus, they contend that if the truck is hired by the contractor, the driver is performing work in the construction industry, such work is covered by the contract, and should be counted towards eligibility to vote in this proceeding. Regarding the jobsite versus nonjobsite conten- tions, we note that the Unions and Employers have by contract limited the covered work to jobsite work. Thus only those owner-operators who have per- formed such jobsite work are eligible to vote . Actual payroll status shall not however be a prerequisite to eligibility if an owner-operator otherwise does unit work. With regards to hauling of rock, sand, gravel, and asphaltic concrete, the record reveals a pattern of bargaining which shows the parties have not intend- ed that individuals doing such be covered by the construction labor agreement. Thus there has been a separate contract for the rock, sand, and gravel industry. Although there were Asphalt Plant Agree- ments which were supplements to the master labor agreement in 1962 and 1965, these were allowed to lapse in 1968. Accordingly, we find that the hauling of rock, sand, gravel, and asphaltic concrete is not covered by the contract and that the time spent engaged therein by owner-operators should not be counted towards eligibility for voting. The Petitioners state, and the evidence shows, that the patterns of employment for the employees in this case are sporadic. They contend that the Board should adopt an eligibility formula which incorpo- rates the principles set forth in Daniel Construction Company, Inc.,2 with certain modifications which will permit those employees, neither working at the time of the election nor having worked during the normal payroll eligibility period but still having a reasonable expectation of future employment, to participate in the election. We find merit in this contention. Accordingly, we direct that, in addition to those employees in the unit who were employed during the payroll period immediately preceding the date of this Decision and Direction of Election, all employees in the unit who have been employed during the 30 calendar days immediately preceding the date of the Decision and Direction of Election or who have been employed for 240 hours or more during the 365 calendar days immediately preceding such date shall be eligible to ►vote. The Petitioners and Employers contend that the Employers should not be required to provide payroll information for establishing eligibility as required by our decision in Excelsior Underwear Inc.3 They state that the California Public Utilities Commission list of dump truck carriers holding permits should be utilized to establish the eligibility of owner-operators and that the various lists maintained by the adminis- trators of the Construction Teamsters Security Fund for Southern California should be utilized to estab- lish the eligibility of employee-drivers. This is virtually the identical argument advanced by the Petitioners and Employers in the companion case which was rejected. Accordingly, for the reasons stated in that Decision we find the contention in this case to be without merit. We shall therefore require 2 167 NLRB 1078 3 156 NLRB 1236. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employers to submit a list of eligible voters. The Regional Director may supplement this information by also using relevant information maintained by the Unions. In accordance with the foregoing we shall direct an election, by mail ballot, in the following unit: All employees of employer-members of the Southern California Chapter of the Associated General Contractors of America, The Building Industry Association of California, Inc., and The Engineering and Grading Contractors Associa- tion, Inc. covered by the collective-bargaining agreement known as the Southern California Master Labor Agreement entered into on May 19, 1968, as amended, between the Employers and Joint Council of Teamsters, No. 42 and Team- sters Local Union No. 87, and other recognized bargaining agents but excluding all other employ- ees, including guards, watchmen, and supervisors as defined in the Act. [Direction of Election4 and Excelsior footnote omitted from publication.] MEMBER KENNEDY, dissenting: For the reasons set forth in my dissent to the original Decision and Order in this proceeding reported at 201 NLRB 311, 1 believe the owner- operators to be independent contractors and not employees within the meaning of the Act. According- ly, I believe the Board is prohibited by statute from conducting an election in which owner-operators are included in the unit. 4 See 209 NLRB No 61