Browning-Ferris Industries

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Browning-Ferris Industries of Pennsylvania, Inc. have violated the National Labor Relations Act, as and Edward J. McDeavitt. Case 6-CA-13801 amended, and has ordered us to post this notice. November 2, 1981 WE WILL NOT interfere with, restrain, and coerce employees in the exercise of the rights DECISION AND ORDER guaranteed them under the Act, by discharg- BY MEMBERS FANNING, JENKINS, AND ing them or barring them from our premises or ZIMMERMAN causing their discharge or debarment. WE WILL make whole Edward McDeavitt, On August 12, 1981, Administrative Law Judge Charles Tully, and Edward Pontius for any William A. Gershuny issued the attached Decision loss of earnings they may have suffered as a in this proceeding. Thereafter, the Respondent filed result of our unlawful conduct of August 24, exceptions and a supporting brief, and the General 1980, with interest. Counsel filed an answering brief in opposition to WE WILL offer Edward McDeavitt, Charles Respondent's exceptions to the Administrative Law Tully, and Edward Pontius reinstatement to Judge's Decision. their former or substantially equivalent posi- Pursuant to the provisions of Section 3(b) of the tions either independently or jointly with one National Labor Relations Act, as amended, the Na- of our brokers or contractors, that employer tional Labor Relations Board has delegated its au- willing. In the event jobs are not available, we thority in this proceeding to a three-member panel. will place these employees on a preferential The Board has considered the record and the at- hiring list at our refuse operations where we tached Decision in light of the exceptions and employ drivers. briefs and has decided to affirm the rulings, find- WE WILL give written notice to our truck- ings,' and conclusions 2 of the Administrative Law ing brokers and contractors that we have no Judge and to adopt his recommended Order. objection to the employment of these employ- ORDER ees or their presence on our premises. Pursuant to Section 10(c) of the National Labor BROWNING-FERRIS INDUSTRIES OF Relations Act, as amended, the National Labor Re- PENNSYLVANIA, INC. lations Board adopts as its Order the recommended Order of the Administrative Law Judge and DECISION hereby orders that the Respondent, Browning- STATEMENT OF THE CASE Ferris Industries of Pennsylvania, Inc., Carnegie, Pennsylvania, its officers, agents, successors, and WILLIAM A. GERSHUNY, Administrative Law Judge: assigns, shall take the action set forth in the said A hearing was held on June 1-2, 1981, in Pittsburgh, recommended Order, except that the attached Pennsylvania, on complaint issued October 28, 1980, al- notice is substituted for that of the Administrative leging a violation of Section 8(a)(1) of the Act. At issue is (1) whether Respondent, a refuse contractor with the Law Judge. City of Pittsburgh, is a joint employer of drivers em- ployed by independent brokers to operate broker-owned ' The Respondent has excepted to certain credibility findings made by tractors used to haul Respondent's to operate trailers; and (2) the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- whether Respondent discharged or caused to be dis- bility unless the clear preponderance of all of the relevant evidence con- charged such drivers in violation of Section 8(a)(l) of vinces us that the resolutions are incorrect. Standard Dry Wall Products, the Act. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have Upon the entire record, including my observation of carefully examined the record and find no basis for reversing his findings. 2 In accordance with his dissent in Olympic Medical Corporation, 250 witness demeanor, I hereby make the following: NLRB 146 (1980), Member Jenkins would award interest on the backpay due based on the formula set forth therein. FINDINGS OF FACT AND CONCLUSIONS OF LAW APPENDIX 1. JURISDICTION The complaint alleges, Respondent admits, and I find NOTICE To EMPLOYEES that Respondent, engaged in the hauling of refuse with POSTED BY ORDER OF THE annual interstate shipments in excess of $50,000, is an em- NATIONAL LABOR RELATIONS BOARD ployer engaged in commerce within the meaning of the An Agency of the United States Government Act. After a hearing at which all sides had an opportu- II. UNFAIR LABOR PRACTICE nity to present evidence and state their positions, Except as specifically discussed below, the relevant the National Labor Relations Board found that we facts are not in dispute. 259 NLRB No. 21 BROWNING-FERRIS INDUSTRIES 149 A. Relationship Between Respondent and Drivers Additionally, credible testimony of drivers and bro- kers, unrefuted by Respondent who did not offer testi- Respondent contracts with the city of Pittsburgh to operate a refuse transfer site to which city trucks haul mony in this regard, indicates that Respondent's transfer collected refuse, after which it compacts the refuse and plant manager, Moersch, on occasion effectively dis- hauls it to a landfill area. By law, refuse must be trans- charged and rehired drivers: ported to the landfill area within 24 hours. Respondent's failure to comply subjects it to fine and cancellation of (a) In July 1980, when driver Tully went home the contract. The transfer site is owned by the city, but early with the tractor, Moersch said to him, "you compaction equipment is owned by Respondent and op- can go home permanently . . yes, I am firing you" erated by its employees, who are members of a Team- and told the broker he wanted another driver and sters local. that Tully "no longer was allowed on the proper- Respondent contracts with independent truckers, com- ty." Several days later, when Tully asked Respond- monly referred to in the trade as "brokers" to furnish all ent's Vice-President Curtis for his job back, Curtis tractors and all drivers to haul Respondent's trailers be- stated there was no reason why he could not get his tween the transfer station and the landfill area. Pursuant job back. When Moersch was informed, he told to oral agreements, brokers are compensated on a per Tully to return to work the following day. load basis, with Respondent additionally providing covy- (b) In 1977, Moersch "fired" another driver, eralls for the drivers and coverage under its group medi- broker Anderson's son. cal plan for one driver per tractor. The decision as to (c) On another occasion, when broker Anderson, which driver receives the coverage is made by the driving his own tractor, left early, Moersch ordered broker. Brokers are required to carry liability insurance him to report to his office the next day and there and are liable for safety violations related to their trac- told him that neither the owner-operators nor the tors. The agreements are terminable at will by either tors. The agreements are terminable at will by either drivers were boss at the transfer station, but that he, party. None of the tractors bears any broker identification. The trailers, and many of the coveralls provided by Re- (d) In February 1978, when driver Pontius im- spondent both to the drivers and to some of its own em- properly used a piece of Respondent's equipment to ployees, bear Respondent's logo. The brokers repair their push his tractor and was accused of damaging the own trucks and purchase them with no financial assist- equipment, Moersch told broker Dietrich that Pon- ance from Respondent. tius was not allowed on the property. Moersch, Respondent, by posted notice at the transfer station, when asked by Pontius for his job back, told him establishes the starting times, i.e., two shifts beginning at that he had gotten rid of one of the four bad apples; 6 a.m. and 6 p.m., 6 days a week. Generally, Respondent when told that Respondent's landfill manager Fazio is concerned only that tractors and drivers are available had no objection to Pontius' return as a driver so at the transfer station when there is refuse to be handled. long as he did not use Respondent's equipment, The actual scheduling of drivers is done by the brokers, Moersch told Pontius that it was okay for him to who frequently drive the tractors themselves without return to work the following Monday. regard to shift. (e) And, finally, on Sunday evening, August 24, Because brokers are compensated on a per load basis, 1980, Moersch telephoned driver Tully at home, load logs are maintained both by Respondent's bin loader telling him that his truck was "fired" and that he and the drivers, on forms provided by Respondent. The should not report in the following morning with the logs are turned in to Respondent's office, where they are truck he telephoned broker Anderson's wife at reconciled and copies provided to the brokers. Respond- home, telling her that Respondent did not want the ent issues bimonthly checks to the brokers for their serv- ices and the latter, in turn, pay the drivers. Neither Re- Anderson truck anymore and that "Tully's fired;" spondent nor the brokers withhold for taxes. and he telephoned broker Buzy at home, telling him Respondent establishes vehicle speed limits at both the that driver McDeavitt was no longer allowed on transfer station and landfill area and, because the landfill Company property. area can be reached only by two narrow public roads , area can be reached only by two narrow public roads, Two other incidents further reflect the relations be- often specifies which of the two roads is to be used by drivers approaching and leaving the area. tween Respondent and the drivers. In late August 1980, drivers approaching and leaving the area. At the transfer station, Respondent directs the trucks Vice President Curtis asked a driver to erase obscenities to specified loading areas and, at the landfill area, directs from the side of Respondent's trailer, despite the fact the trucks to the specific dumping area. that Respondent had responsibility to clean the trailers. Because Respondent's equipment is costly, it has a re- And, also in 1980, Respondent's controller, Bright, under quirement for approval of the drivers furnished by the emergency conditions where garbage was strewn from brokers. That approval consists of on-the-job observation an overloaded trailer at a state police station, asked a by Respondent. If a driver is incompetent, the broker is driver to assist him and other Respondent employees in notified and the driver not permitted on the premises. the cleanup operation. The driver refused, stating that it Similarly, because of its contractual obligation to haul was not a part of his job. refuse promptly, Respondent "criticizes" drivers who I conclude, for reasons set forth below, that, at all rel- arrive late at the transfer station or leave early. evant times herein, Respondent and the independent 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trucking brokers were joint employers of those drivers driver Tully and then rehired him; in 1977, he barred employed by the brokers.' Pontius from the property and later allowed him to Of course, the fact that the brokers concededly are in- return to work; on August 24, 1980, he "fired" McDea- dependent contractors vis-a-vis Respondent is not deter- vitt and Tully; and on another occasion he told a broker minative of the issue as to the relationship between Re- that he, Moersch, and not the brokers or drivers, was the spondent and the brokers' drivers. "boss" at the transfer station. Moreover, it is significant Where, as here, there is no contention that the drivers that at no time did Respondent attempt to insure safe and themselves were independent contractors, Boire v. Grey- dependable driver performance by calling upon the bro- hound Corp., 376 U.S. 473, 481 (1964), teaches that the kers to take corrective action. Moersch in fact consid- real issue, a factual one, is whether a respondent "pos- ered himself as the drivers' supervisor and, on a day-to- sessed sufficient control over the work of the employees day basis, exercised that authority without regard to (and to qualify as a joint employer with [the actual employ- without objection from) the brokers. er]." Accord: N.L.R.B. v. Jewel Smokeless Coal Corp., Respondent also held out the drivers as its own em- 435 F.2d 1270 (4th Cir. 1970). ployees by providing them with coveralls bearing the An examination of the facts in Greyhound, Jewel company logo and by providing medical insurance to Smokeless, and other cases is instructive in the applica- certain of the drivers under its own group plan. And, fi- tion of the joint employer test. In Greyhound, it was sub- nally, it established the hours of employment for the sequently held that respondent was a joint employer drivers, as opposed to simply requiring, under the con- with its cleaning contractor, where Greyhound estab- tract, 24-hour service from the brokers. lished work schedules, assigned and supervised cleaners and prompted the discharge of one of the cleaners. 368 B. The Drivers' Concerted Activities F.2d 778 (5th Cir. 1966). In Jewel Smokeless, Respondent, a lessor of coal lands, was determined to be a joint em- In early August 1980, drivers Tully, McDeavitt, and ployer of miners employed by independent mining con- Pontius talked among themselves and with other drivers tractors, where respondent gave financial assistance in about increased wages and benefits. Over the years, nu- the purchase of equipment, provided engineering and in- merous conversations with other drivers concerning spection services, furnished workmen's compensation working conditions had been held. The drivers are not coverage, and terminated union activity by cutting off represented by a union. These conversations were infor- electric power to the mine to discourage union activity. mal and occurred while the drivers were waiting around Similarly in Hamburg Industries, Fidelity Services, Inc & the transfer station and landfill area. While there was no Industrial Technical Services, Inc., 193 NLRB 67 (1971), effort to conceal either the fact or the subject matter of the Board found Respondent to be a joint employer of the conversations, rarely was there present an employee maintenance repair employees provided by a contractor of Respondent in the vicinity. Even then, noisy machin- whose sole business was to provide manpower, where ery was in operation, making it most unlikely that the Respondent controlled the scope and quality of the conversations were overheard. work, scheduled the work, and indirectly controlled On Sunday, August 24, 1980, most of the drivers met wages. And in Mansion House Management Corporation, at Tully's home to discuss a course of action. Agreed and Central Parking System of St. Louis, Inc., 195 NLRB upon was an approach to the brokers for increased 250 (1972), respondent was found liable, as a joint em- wages and benefits and, if the brokers were unable to re- ployer, for the discharge of security guards employed by negotiate their agreements with Respondent, then a a contractor, where it exercised control and direction direct approach to Respondent "to see if they could do over the day-to-day activities of the guards and both its anything for us" by way of increasing broker compensa- employees and guards wore substantially identical uni- tion under the contract. There was no agreement at that forms. time as to whether the drivers would strike. On the other hand, where a respondent's control is a The brokers were aware of the scheduled meeting, consequence of Federal law and regulation, such as is having been informed by the drivers at least 1 week the case with regulated common carriers, a joint employ- before. Respondent also had prior knowledge of the er determination may not be warranted. N.L.R.B. v. Tri- meeting. Moersch admitted to contoller Bright that he State Transport Corp., 649 F.2d 993 (4th Cir. 1981). In the knew "weeks before" that the drivers were talking of present case, however, the brokers were not certified and meeting and Vice President Curtis told Bright he also there is no evidence or contention that Respondent's knew of the meeting, because the drivers had come to control over the drivers was mandated by law. him for "more money" and he had informed them to The evidence, as reviewed above, demonstrates "see your brokers." beyond doubt that not only did Respondent effectively I find that the drivers did engage in protected concert- discharge and rehire the drivers in a number of instances, ed activity on and prior to August 24, 1980, and that Re- it also treated the drivers as its own employees in a spondent had actual knowledge of such activities. number of other respects. In July 1980, Moersch "fired" C. The Alleged Wrongful Terminations 'At the conclusion of the hearing, counsel for the General Counsel Within several hours of the drivers' meeting on the moved to amend the complaint to allege an alternate theory of liability afternoon of Sunday, August 24, 1980, Respondent termi- based on Respondent's status as a nonemployer. The motion is granted. but the issue is not addressed in view of the conclusion herein that Re- nated broker Anderson's contract for one truck and re- spondent is a joint employer. duced broker Buzy's contract from four to three trucks. BROWNING-FERRIS INDUSTRIES 151 More specifically, Anderson's two drivers, Tully and tion of one contract and modification of another and its Pontius, and Mrs. Anderson were telephoned by firing of Tully and McDeavitt and its barring of Pontius Moersch and told that the Anderson truck was "fired" from company property was to interfere with, thwart, and was not to be brought in the next day because there and restrain the exercise by the drivers of their Section 7 was no trailer for it to haul. No other reason was given right to seek increased wages and benefits. Wright Line, a to them for the action. Also that night, Moersch tele- Division of Wright Line, Inc., 251 NLRB 1083 (1980). phoned McDeavitt, one of Buzy's eight drivers, and told The only drivers affected by Respondent's August 24 him that he was fired and would no longer be permitted actions were the very three who were spearheading the on Respondent's property. No reason for the discharge drive for increased wages. Its actions occurred only ever was given by Moersch to McDeavitt or broker hours after the drivers' first meeting and only hours Buzy. before the start of the Monday 6 a.m. starting time. Re- No other trucks or drivers were affected by Moersch's spondent, despite its purported negotiations with a new actions of August 24. contractor, never disclosed either to the other brokers or Respondent's controller Bright, the only management the drivers that certain cutbacks would be made to make witness to testify, stated that, following a demand by the way for the new broker. Bright's testimony as to the brokers in early August for substantial increases under new contract was evasive and elusive as to when negoti- their agreements, Respondent began negotiating with a ations had been concluded, the number of trucks to be new broker for five trucks at the then current per load provided by the new broker and when the broker com- rate. Other brokers, he said, who were dissatisfied with menced operations. Accordingly, his testimony cannot be those rates, could terminate their agreement with Re- credited. Given the fact that Respondent's contract with spondent. The new broker, Horse Trucking, contracted the city was subject to cancellation if garbage were per- with Respondent during the second week of August and, mitted to accumulate, it is unlikely that Respondent by the end of the month, began operations with three would have precipitously terminated its existing con- trucks. tracts before the new broker was in operation. In addi- Bright testified that Respondent's decisions on August tion, Respondent refused to give any reason on Sunday 24, 1980, were made by Operations Manager Pittman and for its actions; its subsequently advanced reason having Vice President Curtis and communicated to the affected to do with the unreliability of the Anderson truck (and drivers and brokers by Moersch. The fact that the driv- its drivers, Tully and Pontius) had not been raised prior ers' meeting occurred only hours before, he stated, was to the hearing; its unsatisfied property damage claims "purely coincidental." Of the four brokers, it was decid- against broker Anderson were not of recent vintage and ed to terminate Anderson's contract for one truck, Anderson had not been pressed to satisfy them; the driven by Tully and Pontius, because Respondent was reason stated by Curtis the following day, i.e., obsceni- not satisfied with its performance. It was not there when ties on the trailer, had not been expressed by Moersch refuse had to be transported and there were outstanding and, in any event, Respondent had not indicated it would and unsatisfied damage claims against Anderson. Buzy be a cause for discharge and cancellation of contract; was reduced from four to three trucks because "we had and its decision to bar McDeavitt as the "least desirable" to cut back" in light of a new contract with Horse of Buzy's eight drivers is unsupported by any credible Trucking. Bright testified that, as a part of the Buzy de- evidence that McDeavitt was less reliable and less safe cision, McDeavitt, one of the "least desirable" of Buzy's than the other seven drivers. "was to go ... we didn't want him . . . and we asked I conclude that Respondent, in discharging Tully, Pon- that when Buzy's truck went down, McDeavitt go with tius, and McDeavitt and/or barring them from the prem- it.S ises on August 24, 1980, violated Section 8(a)(1) of the Several days later, when Tully and Anderson asked Act why the Anderson's truck was fired, Curtis replied "be- cause of obscenities on the side of the trailer" which Ill. REMEDY Tully and Pontius hauled, adding that, in another 4 to 5 months, none of the brokers would be there. Counsel for the General Counsel seeks an order re- The obscenities referred to consisted of a drawing of quiring Respondent to cease and desist from engaging in Vice President Curtis performing an unnatural sexual act the unlawful conduct, to post an appropriate notice and with the brokers and the words, "kill Curtis." While to notify its current brokers that it has no objection to trailers often contained obscenities written by finger in the employment of Tully, Pontius, and McDeavitt. He the dust and grime, this obscenity was unique. On seeks also an order requiring backpay and interest to run Friday, August 22, Curtis had asked Tully and Pontius if until (a) a broker offers a driver the same or substantially they were responsible. Each denied responsibility and equivalent position, (b) Respondent offers such to the Pontius, at Curtis' request, erased the obscenity. driver, or (c) a driver obtains substantially equivalent The outstanding damage claims against Anderson con- employment elsewhere. And, finally, he seeks an order sisted of a $560 claim for damage to an out-house and a requiring Respondent to offer broker Anderson a new $500 claim for damage to a gate. contract, similar to the one terminated on August 24, On the basis of the overwhelming record evidence in 1980, for one truck. this case, I find that reasons assigned by Respondent for Where, as here, a joint employer unlawfully discharges its August 24 actions are wholly pretextual and that the or causes the discharge of an employee it is appropriate true reason, and indeed the sole reason, for its termina- to direct reinstatement by Respondent independently or 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jointly with an existing broker, Jewell Smokeless Coal under Section 7 of the Act, by discharging them or bar- Corporation, 175 NLRB 57 (1969), or, in the event jobs ring them from the premises or causing their discharge are not available, to place the employee on a preferential or debarment. hiring list at its operations where it is an employer of 2. Take the following affirmative action designed to ef- drivers. It is also appropriate to direct that Respondent fectuate the policies of the Act: notify brokers that it has no objection to their employ- (a) Make whole Edward McDeavitt, Charles Tully, ment of the drivers2 and to direct backpay and interest in and Edward Pontius for any loss of earnings they may accordance with F. W. Woolworth Company, 90 NLRB have suffered by reason of Respondent's unlawful activi- 289 (1950), Florida Steel Corporation, 231 NLRB 651 ties, to be determined and computed in the manner set (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 forth in the Decision and Order and to run until (a) the (1962). same or substantially equivalent position is offered them It is inappropriate, however, to compel restoration of by Respondent or one of its brokers or contractors or (b) the Anderson contract for a number of reasons. First, a driver obtains substantially equivalent employment Anderson admittedly was at all relevant times an inde- elsewhere. pendent contractor. Second, Anderson was not alleged in (b) Offer the above-named employees reinstatement to the complaint to be a discriminatee and was not joined as their former or substantially equivalent positions either a party to this proceeding. Third, neither the Act nor its independently or jointly with one of its brokers or con- legislative history suggests the existence of Board juris- tractors, that employer willing. In the event jobs are not diction over the contractual relationship of employers available, Respondent shall place those employees on a subject to the Act and their independent contractors or preferential hiring list at its refuse operations where it is the terms of such contracts. Fourth, the original agree- an employer of drivers. ments with Anderson and the other brokers were oral (c) Give written notice to its trucking brokers and and terminable by either party at will. And fifth, restora- contractors that it has no objection to the employment of tion of the contract is unnecessary to effectuate the pur- the above-named employees or their presence on Re- poses of the Act under the circumstances of this case. spondent's promises. Upon the foregoing findings of fact, conclusions of (d) Post at its principal office and at its offices at the law and the entire record and, pursuant to Section 10(c) refuse transfer station and the landfill area involved in of the Act, I hereby issue the following recommended: this case copies of the attached notice marked "Appen- dix."4 Copies of said notice on forms provided by the ORDER3 Regional Director for Region 6, shall, after having been The Respondent, Browning-Ferris Industries of Penn- signed by Respondent's representative, be posted by Re- sylvania, Inc., Carnegie, Pennsylvania, its officers, spondent immediately upon receipt thereof, and be main- agents, successors, and assigns, shall: tained by it for 60 consecutive days thereafter, in con- 1. Cease and desist from interfering with, restraining, spicuous places, including all places where notices to em- and coercing employees in the exercise of their rights ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not 2 Indeed, Pontius already has been employed by another of Respond- altered, defaced, or covered with other material. ent's brokers. For this reason, Respondent's contention that Tully and (e) Notify the Regional Director for Region 6, in writ- Pontius, as drivers of the trailer with the obscenities written on its side, ing within 20 days from the date of this Order what are not entitled to reinstatement is without merit. Respondent, by its ac- tions, has announced that their reinstatement would not be inconsistent steps the Respondent has taken to comply herewith. with a current employer-employee relationship. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board the find- In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing and shall be deemed waived for all purposes. Order of the National Labor Relations Board.