Centurion Auto Transport, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 394 Centurion Auto Transport, Inc., Southeast Drivers, Inc., Eagle Auto Transport, Inc. and Automobile Transport Clearinghouse, Inc. and Teamsters Local Union No. 512, International Brotherhood of Teamsters, AFL–CIO, Petitioner. Case 12– RC–7744 September 30, 1999 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND LIEBMAN Upon a petition filed under Section 9(c) of the Na- tional Labor Relations Act, a hearing was held on various dates from June through December 1994 before a duly designated hearing officer of the National Labor Rela- tions Board. On December 27, 1994, pursuant to Section 102.67(h) of the Board’s Rules and Regulations, this case was transferred to the Board for decision. The Employ- ers and the Petitioner have filed briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Having carefully reviewed the entire record in this proceeding, including the posthearing briefs filed by the parties, the Board makes the following findings: 1. The hearing officer’s rulings made at the hearing are free from prejudicial error and are affirmed. 2. Each of the Employers is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction. 3. The labor organization involved claims to represent certain employees of the Employers. 4. A question affecting commerce exists concerning the representation of certain employees of the Employers within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 5. The Petitioner, Teamsters Local Union No. 512, In- ternational Brotherhood of Teamsters, AFL–CIO (Team- sters Local 512), seeks to represent a unit of all full-time and regular part-time drivers, including loading employ- ees, who are employed in Jacksonville, Florida, by four companies that the Petitioner claims are a single or joint employer. Those companies are: Centurion Auto Trans- port, Inc. (Centurion), Southeast Drivers, Inc. (SED), Eagle Auto Transport, Inc. (Eagle), and Automobile Transport Clearinghouse, Inc. (ATC). Centurion is engaged in the interstate transportation of vehicles for automobile importers. It owns tractors and trailers specially designed for car hauling. Centurion leases drivers from SED and from Eagle to drive its trucks and transport cars to dealerships. Centurion also leases owner/operators to transport cars. Harold Shafer is the president and sole stockholder of Centurion. Dan- iel Waldrop is on Centurion’s board of directors. SED is a driver leasing company which leases drivers solely to Centurion. SED employs about 160 employees, approximately 145 of whom are truckdrivers and loading employees. There are 20 drivers located in an SED facil- ity in Commerce, Georgia, about 300 miles from the Jacksonville facility where the rest of SED employees work. SED is 60-percent owned by employees, who possess all shares of class A voting common stock. The remaining 40 percent of the Company is owned by Har- old Shafer and Daniel Waldrop, who hold all shares of class B voting common stock. At the time of the hear- ing, Waldrop was president of SED. Eagle is also in the business of leasing drivers to Cen- turion to operate car-hauling trucks. In addition, Eagle leases trucks from another company and employs drivers and loading employees to transport cars on those trucks. At the time of the hearing, Eagle employed about 35 to 40 drivers. Vicki Shafer, wife of Harold Shafer, owns 75 percent of Eagle’s stock. Harold Shafer owns 5 percent. Carrie Shafer, the daughter of Harold Shafer and step- daughter of Vicki Shafer, owns 20 percent. At the time of the hearing, Vicki Shafer was president of Eagle and Carrie Shafer was corporate secretary. ATC has contracts with several automobile importers, including Toyota, its largest customer, Isuzu, Volvo, Volkswagen and Mercedes, who pay ATC to find car haulers to transport their cars to dealerships. ATC bro- kers freight from its customers to Centurion and, when Centurion does not have enough drivers from SED, Ea- gle, or owner/operators, ATC brokers the freight to ap- proximately 65 other companies. ATC also dispatches the transportation of freight for its customers. In De- cember 1992, ATC contracted with Centurion to dispatch all SED and Eagle drivers leased to Centurion. Vicki Shafer owns ATC. As stated, the Petitioner contends that the four Compa- nies are either a single or joint employer and that a unit of drivers and loading employees working at a Jackson- ville, Florida facility would be appropriate for collective- bargaining representation. The Petitioner acknowledges that employees own all the class A stock in SED, but claims that the employees do not effectively control the management of SED because of control over that Com- pany’s operations exerted by the common management of all four companies in the alleged single- or joint- employer relationship.1 SED’s position is that it is neither a single nor joint employer with Centurion, Eagle, or ATC. In addition, SED asserts that it is inappropriate to include any of SED’s employee/stockholders in a unit for purposes of a representation election because those individuals are managerial employees who participate in the formulation and determination of SED’s company policies by virtue of their ability to elect a majority of the board of direc- 1 The Petitioner has expressed a willingness to represent a number of alternative bargaining units if the Board does not agree with its posi- tions on the several issues contested here. 329 NLRB No. 42 CENTURION AUTO TRANSPORT 395 tors. In the alternative, SED contends that an appropriate unit must include its drivers located in Commerce, Geor- gia, in addition to the employees located in Jacksonville, Florida. SED also takes the position that its loading yard supervisors and loading yard trainer are supervisors within the meaning of Section 2(11) of the Act. Eagle contends that it is not a joint or single employer with Centurion, SED, or ATC. Therefore, it asserts that the only appropriate unit with respect to Eagle would be limited to its drivers in Jacksonville, Florida. Centurion and ATC likewise disclaim any single- or joint-employer relationship with other companies and contend that they should be dismissed from the petition because they do not have any employees in the petitioned-for unit. Cen- turion agrees with SED and Eagle that there should be separate units for each Company and that the SED bar- gaining unit should include the Commerce facility driv- ers. As framed by the parties’ contentions, the issues pre- sented to the Board are: whether Centurion, SED, Eagle, and ATC are a single or joint employer; whether the SED employee/stockholders are managerial employees who should be excluded from any bargaining unit of statutory employees; whether any appropriate unit must include SED’s drivers at the Commerce facility; and whether SED’s loading yard supervisors and loading yard trainer are supervisors within the meaning of Section 2(11) of the Act. For the reasons discussed below, we find that the four companies are a single employer, that SED em- ployee/stockholders are not managerial employees, that a single location unit limited to Jacksonville employees is appropriate, and that SED’s loading yard supervisors and trainer are bargaining unit employees, not 2(11) supervi- sors. We shall therefore direct an election in the appro- priate bargaining unit which the Petitioner seeks to repre- sent. The Single Employer Issue2 A single-employer relationship exists when two or more employing entities are in reality part of a single- integrated enterprise. Four criteria determine whether a single-employer relationship exists: (1) common owner- ship; (2) common management; (3) functional interrela- tion of operations; and (4) centralized control of labor relations.3 Not all of these criteria need to be present to establish single-employer status.4 Single-employer status ultimately depends on “all the circumstances of a case” and is characterized by the ab- sence of the “arm’s length relationship found among un- 2 In light of our finding, discussed infra, that the four companies constitute a single employer, we find no need to address the issue whether they are a joint employer of the bargaining unit employees. 3 Broadcast Employees NABET Local 1264 v. Broadcast Service of Mobile, 380 U.S. 255 (1965); American Stores Packing Co., 277 NLRB 1656 (1986); Shellmaker, Inc., 265 NLRB 749, 754 (1982). 4 Denart Coal Co., 315 NLRB 850, 851 (1994), enfd. 71 F.3d 486 (4th Cir. 1995). integrated companies.”5 It is well settled that the funda- mental inquiry is whether there exists overall control of critical matters at the policy level.6 Common ownership—The Shafer family has owner- ship interests in all four companies. Harold Shafer owns 100 percent of Centurion, 36 percent of SED, and 5 per- cent of Eagle. Harold Shafer’s wife, Vicki Shafer, owns 100 percent of ATC and 75 percent of Eagle. Carrie Shafer, daughter of Harold and stepdaughter of Vicki Shafer, owns 20 percent of Eagle. Daniel Waldrop, Vicki Shafer’s uncle, owns 4 percent of SED. The only nonfamily ownership interest is represented by the 60- percent share of SED held by class A employee- shareholders. Common management—Harold Shafer is Centurion’s chief executive and sits on SED’s board of directors. Daniel Waldrop is SED’s president, sits on the board of both Centurion and SED, and serves as Centurion’s chief financial officer. Waldrop selected the various managers and supervisors of SED, none of whom work for any of the other Companies.7 Vicki Shafer is the president of both ATC and Eagle. Carrie Shafer is the secretary of Eagle and runs its day-to-day activities. The record shows that management of one Company has participated on many occasions in the affairs of an- other and that Harold Shafer speaks on behalf of each of the Companies. For example, Harold Shafer testified that representatives from the different Companies would attend Centurion’s management meetings. The minutes of an October 6, 1993 SED board of directors’ meeting show a similar situation: Mr. Shafer spoke on behalf of ATC and informed Ms. Burdick that ATC did not wish to directly hire (two employees). . . due to their poor health records. . . . Mr. Shafer did say he would present the issue at the Centu- rion/ATC meeting. . . . Mr. Shafer and Mr. Waldrop announced a plan to set up . . . a bonus incentive for the drivers. Centurion feels that they should make an effort to share the savings they will receive by constituting the governing policy with the drivers. . . . Ms. Burdick then discussed the confusion regarding the weekend off policy and asked that it please be clarified. . . . Mr. Shafer and Mr. Waldrop stated they would discuss this policy at the Centurion Management meeting and would try to have the policy clarified. 5 Blumenfeld Theatres Circuit, 240 NLRB 206, 215 (1979), enfd. 626 F.2d 865 (9th Cir. 1980). 6 Emsing’s Supermarket, 284 NLRB 302 (1987), citing Soule Glass Co., 652 F.2d 1055, 1075 (1st Cir. 1981); Sakrete of Northern Califor- nia v. NLRB, 332 F.2d 902, 907 (9th Cir. 1965), enfg. 140 NLRB 765 (1963). 7 Waldrop is paid by Centurion but not by SED. He received a con- sulting fee of $10,000 from SED in 1992, but, upon advice of counsel, returned a “bonus check” he received from SED in November 1994. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 396 Interrelation of Operations—A high degree of func- tional integration exists among the four Companies in providing car hauling services for automobile importers. In simplest terms, Centurion provides the trucks and trailers, SED and Eagle provide the drivers, and ATC provides the customers and dispatch services. SED and Eagle each have separate contracts with Centurion. There is no written contract between Centurion and ATC. The dispatch regulations were formulated by input from all the Companies. All four Companies have the same address and share a receptionist. The offices of Centurion, Eagle, and ATC are located in the same building on the same floor. Al- though SED’s offices are located in a separate building, the drivers’ breakroom is located in the same building as the offices of Centurion, Eagle, and ATC. Eagle and SED drivers turn in their logbooks to the ATC dispatch office. Carrie Shafer, ostensibly working for Eagle, has sent out memos to all drivers on Centurion letterhead on behalf of Centurion.8 ATC computers are linked with SED computers and all information concerning loads, designation of drivers, back hauls, and claim information are transmitted through the computers. Eagle drivers were given Centurion business cards which contained phone numbers for ATC dispatch and SED. All Compa- nies send memos to all drivers. The employees of Centu- rion, ATC, and Eagle have the same health insurance. Eagle and SED drivers wear essentially the same uni- form, i.e., Centurion coveralls. Centurion’s business advertisements contain SED’s telephone number. There has been significant interchange among the em- ployees of all four Companies. Drivers have quit one Company and then been employed by the other. When Eagle was formed, approximately 10 to 15 employees moved from SED to Eagle over a 6-month period. When they came to Eagle, these drivers were given credit for their work experience with SED with regard to vacations and the 401(k) program. Eagle did not retrain them and accepted SED’s quality classification of the drivers. In another example of interchange, 21 of the 32 Centurion owner-operators at the time of the hearing had trans- ferred since 1991 from positions as SED drivers. In yet another example, SED leased two dispatchers to ATC. There was no written agreement for this transaction. There is also substantial daily interaction among the employees of all four Companies. Centurion’s shop per- forms the maintenance and repairs at SED’s offices. Eagle and SED drivers for Centurion attend the same training class. They can verify their production reports through either the Eagle office or Centurion’s office. 8 According to Carrie Shafer, she uses Centurion’s letterhead be- cause she looks out for and acts on behalf of her father, Harold Shafer, when he is out of town. She testified that Harold Shafer gave her au- thority “to sign memos or to take care of things that I feel like I’m able to take care of when he is not in town,” although she usually consults with him. Shuttle van drivers employed by SED shuttle both SED and Eagle drivers, as well as Centurion owner-operators. If an Eagle or SED driver has a problem with a truck, the driver reports directly to Centurion mechanics. All em- ployees share the same breakroom. Centralized Control of Labor Relations—Centurion gives instructions to drivers and directs drivers to per- form specific tasks pursuant to customers’ requests. Thus, Centurion directs drivers on how to tie down cars properly, especially when new models of imported cars arrive, and how to move and load cars in a manner that is least likely to scratch or damage cars. Drivers direct employment-related questions about such matters as claims, damages, bids for trucks, equipment, and disci- pline to Centurion’s operations manager. ATC gives directions to these drivers regularly. ATC administers, monitors, and enforces a common set of dispatch rules for all SED and Eagle drivers.9 Normally the drivers select which load they want and decide when they will arrive at their destination, but ATC overrides this process when it must meet specific time deadlines for certain loads. ATC also determines if drivers have to work weekends and notifies the drivers by posting a no- tice in the dispatch office. SED’s president and managers have the authority to hire, fire, discipline, set wage rates, and establish benefits for SED employees.10 SED also has its own application process, background checks, employee handbook, and drug policy. Centurion has the right to refuse to accept any driver, although it cannot fire or discipline a driver. Instead, Centurion notifies SED of driver complaints or other problems and SED independently investigates and determines discipline. Several SED drivers who were forbidden to drive Centurion trucks are still employed by SED in other capacities. ATC also reports driver viola- tions of dispatch rules to SED. On occasion, ATC will recommend discipline but it has no authority to carry it out. SED will independently investigate any alleged violation and may not follow ATC’s recommendations. Eagle interviews, hires, fires, and disciplines its own drivers. Centurion and ATC may report driver viola- tions, recommend discipline, or refuse a truck, but, as with SED, only Eagle can impose discipline including firing. Although SED and Eagle establish their own 9 We deny the Petitioner’s request to reverse the hearing officer’s re- jection of P. Exh. 133, a letter from Thomas Nazworth, safety director for SED, to ATC employee Terry Kiger, about clarifying the dispatch rules, as probative on the issue of which Company controlled the dis- patch rules. 10 There is, however, some interchange of responsibilities regarding benefits among the Companies. Thus, Terry Kiger, an ATC employee, after consulting with Linda Moffett, a quality control employee of Centurion, determined the payment time period for an extra incentive plan for delivery of damage-free cars offered by one customer, Volvo Cars of North America, that applied to all drivers. (Also, as part of her duties Linda Moffett supervises the 401(k) plan for both Centurion and SED.) Rick Whitmore, a claims employee for Centurion, devised an- other incentive program for the drivers. CENTURION AUTO TRANSPORT 397 policies, management of both Companies frequently con- fer and share information, and thus some policies are very similar. In fact, SED adopted Eagle’s drug testing policy. Documents submitted by the Petitioner at the hearing indicate that the various Companies confer about labor relations matters. Thus, Petitioner’s exhibits show that SED sought input from Centurion about how to handle employee grievances, and that ATC sent numerous memos to drivers on Centurion letterhead concerning weekends off, lump sum payments to drivers for dam- age-free cars, and various requirements Centurion had for the drivers. Significantly, the record demonstrates the substantial control exerted by Harold Shafer and Daniel Waldrop, Centurion’s principal officers, over the labor relations policies for all Companies. Harold Shafer and/or Wal- drop were ultimately responsible for: the discharge of one of SED’s vice presidents; the transfer of dispatching functions for SED and Eagle drivers to ATC; the adop- tion of a new classification system for the SED drivers and a general upgrading of these drivers within a speci- fied time; the implementation of a new weekend off policy; the direction to terminate all drivers with per- formance levels below acceptable; the leasing of SED employees to ATC to perform dispatch functions; the shifting of the training of SED drivers over to Centurion where it was then done together with the training of Ea- gle drivers; and the making of the final decision on new dispatch rules, with the assistance of an ATC employee. As detailed in the following section, some of these ac- tions affecting SED employees were taken by Harold Shafer, as Centurion’s president, over the protests of SED’s president. Conclusion—It is apparent from the foregoing that the relationship among these four Companies is a close fam- ily one rather than one among independent Companies dealing at “arm’s length.” There is a high degree of functional integration. Although each Company has some autonomy in daily management and labor relations, the ultimate direction and policymaking function for all companies is centralized at the upper corporate level in the Shafer family and Daniel Waldrop (Vicki Shafer’s uncle). Those same individuals dominate the ownership and management of each Company. In similar circum- stances, the Board often treats ownership by other family members as personal ownership.11 In sum, we find that, when considered together, the evidence relating to each of the four criteria examined above supports finding that a single-employer relationship exists among Centurion, SED, Eagle, and ATC. 11 See Alexander Bistritzky, 323 NLRB 524, 525 (1997), and cases cited therein. Alleged Managerial Employee Status of SED Em- ployee/Stockholders Facts—A decade ago, SED’s sole owner, in anticipa- tion of retirement, decided to restructure SED so that its employees would become majority owners. On Decem- ber 28, 1989, pursuant to a plan of reorganization and recapitalization of Southeast drivers, all outstanding stock in SED was surrendered for class A voting com- mon stock (class A shares) and class B voting common stock (class B shares). All class A shares were awarded to employees; all class B shares were awarded to Harold Shafer and Daniel Waldrop. Class A shares issued and outstanding at any given time represent 60-percent own- ership of SED; class B shares represent 40-percent own- ership. Only employees can own class A stock. According to SED’s corporate bylaws, a meeting of all shareholders is held annually for the purpose of electing a board of directors. The directors are elected by the shareholders and hold office for 1 year unless removed. Three of the five-member board of directors are elected by the employees holding class A shares. Two of the five-member board are elected by the holders of class B shares. The board of directors annually elects the various corporate officers who are in charge of managing the Company. Every employee of SED becomes a holder of class A shares after 6 months of employment. At that time, 320 class A shares are issued automatically to each employee, and an additional 320 class A shares are issued automati- cally to each employee on a twice yearly basis thereafter. At the time of the September 13, 1994 annual meeting, SED drivers held 77 percent of these class A shares. Since 1990, the class A shareholders have elected sev- eral new board members, and three different people have held the office of president. The bylaws also allow the class A shareholders to call a special meeting at any time they feel it necessary to remove a board member. At the September 1994 annual meeting, SED’s drivers cast 74 percent of the class A ballots. The effect of the stockholders’ vote was to remove one longtime board member and past president, Linda Burdick, and another board member. The class A stockholders replaced these individuals with a driver, Bobby DeFord, and with SED’s Commerce facility manager, Ed Summersill. De- Ford nominated Waldrop to be SED’s president, and the new board unanimously elected him to that position. Since 1989, four drivers have been elected to and served on the board of directors while retaining their driving duties; two of these have also served in the offices of vice president of driver relations and cochair respec- tively. Analysis—SED and Centurion argue that the SED em- ployee/stockholders own all the class A stock; drivers represent 77 percent of the class A stock; class A stock- holders elect a majority of the board of directors (three of five); and the board elects SED’s officers who manage DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 398 the Company. These Employers therefore contend that, based on applicable precedent,12 the petition should be dismissed as to SED because the SED drivers should be excluded as managerial employees from collective- bargaining representation. The Petitioner, however, argues that the interrelation of the four Companies substantially limits the authority that the SED driver/stockholders and the board members they elect have in operating and managing SED. In par- ticular, the Petitioner claims that the drivers’ ostensible power to manage SED is negated by the authority wielded over SED by nominally minority owners Harold Shafer and Daniel Waldrop and by the other Companies in a single employer relationship with SED. Therefore, the Petitioner contends that the driver/stockholders do not exercise sufficient control in the operation and man- agement of SED to warrant their exclusion as managerial employees from a bargaining unit of statutory employ- ees. We find the Petitioner’s arguments persuasive.13 Un- der current Board law, the “mere fact than an employee also has the rights and privileges of a stockholder is not sufficient to debar him from availing himself in his ca- pacity as an employee, of the rights of employees to en- gage in concerted activities for the purposes of collective bargaining.” Everett Plywood & Door Corp., 105 NLRB 17, 19 (1953); Coastal Plywood & Timber Co., 102 NLRB 300 (1953). “[S]tock ownership does not alone preclude the inclusion of employee stockholders in a collective-bargaining unit.” Red & White Airway Cab Co., 123 NLRB 83, 85 (1959). Employee shareholders are stripped of their right to pursue bargaining represen- tation only where their stock ownership vests them with “an effective voice in the formulation and determination of corporate policy.” Id. Upper Great Lake Pilots, 311 NLRB 131, 132 (1993).14 12 Lakes Pilots Assn., 320 NLRB 168, 178–179 (1995); Sida of Ha- waii, Inc., 191 NLRB 194 (1971). 13 We recognize that in 1991 the Board denied the Petitioner’s re- quest for review of the Regional Director’s dismissal of a petition to represent SED drivers on the grounds that they were managerial em- ployees. Although the Petitioner there claimed that SED and Centurion were a single and/or joint employer, it apparently never made the fur- ther argument, made in this case, that such a relationship would deprive SED’s board majority of substantial managerial authority. Further- more, the Regional Director found no need to address the single- employer issue, and the Petitioner did not seek review on that issue. Having found in this case that a single-employer relationship exists, we need not decide here whether the extra-corporate control exerted by Harold Shafer and Waldrop over SED would warrant finding that SED drivers are not managerial employees even in the absence of a single- employer finding. 14 Under this test, the Board has held that employee/stockholders need not have a collective majority ownership in order to have an effec- tive voice in management. E.g., Brookings Plywood, 98 NLRB 794, 798 (1952). Conversely, there can be circumstances, such as are pre- sented here, where even a majority ownership interest does not translate into effective control of corporate policy. E.g., Upper Great Lake Pilots, supra; Everett Plywood, supra (employee shareholders owned 76 percent of stock but were not barred from representation as their inter- In this case, although no individual SED driver-owner has enough stock to influence company policy, Centurion and SED allege that the driver stockholders as a group have such influence through their ability, by collective share voting, to elect and remove a majority of SED’s board of directors, and through that majority to appoint and remove SED’s officers. While there is no evidence that these driver-owners otherwise formulate or effectu- ate managerial policy for SED,15 arguably, given their 60-percent ownership share in SED and their ability to elect a majority of its board of directors, existing prece- dent would dictate their exclusion from the coverage of the Act as managerial employees. However, we have found that SED is part of a single-employer enterprise with Centurion, ATC, and Eagle. The issue presented here, therefore, is whether the SED driver-owners are to be deprived of statutory rights as “employees” of the single-employer enterprise because of their stockholding interest in SED. In light of our single-employer finding, we conclude that the stock ownership of SED’s drivers does not oper- ate to preclude their exercise of section 7 rights to organ- ize for collective bargaining.16 By virtue of the single- est as paid workers was “at least as great” as their interest as proprie- tors). In some cases, the Board has also relied on the factor of preferen- tial treatment enjoyed by employee/stockholders over other employees. E.g., Sida of Hawaii, Inc., 191 NLRB at 195. That factor is not present in this case. 15 SED also alleged that its drivers participate directly in decisions affecting their wages and benefits to such a degree that they should be excluded from any bargaining unit as managerial employees. We dis- agree. Record examples cited by SED fail to show that drivers regu- larly formulate and effectuate corporate policy. In one instance, SED allowed its drivers to vote, on a one-person, one-vote basis, for their choice of health insurance plan coverage. In another instance, SED gave each driver the individual choice, during a mandatory transition to a new pay schedule, of shifting to the new schedule immediately or about 9 months later. On two occasions, a group of five or six drivers has served on a dispatch rules revision committee, but Harold Shafer, Waldrop, and ATC dispatcher Terry Kiger made the final decision about any revisions. Finally, SED’s officers hold periodic meetings with drivers where general concerns (dispatch rules, health insurance, workload, etc.) are discussed, but these meetings involve routine man- agement-employee informational exchange. 16 Member Liebman notes that issue in this case highlights certain conflicts between current case law and emerging forms of labor partici- pation in corporate decision making. Given the single-employer find- ing, however, she finds it is unnecessary to reexamine Board doctrine on employee ownership in this case. Employee ownership arrange- ments (e.g., employee stock ownership plans (ESOPs), 401(k) plans, and stock option plans) have increased in recent years, as both a form of employee incentive compensation and a mechanism for giving em- ployees a voice in making decisions that affect their working lives. The level of ownership and actual control given to employees under these different arrangements may vary widely. Member Liebman further notes that some commentators have criti- cized the Board’s approach to employee stock ownership. In their view, employee ownership arrangements play a vital part in a dynamic eco- nomic climate, and Board law poses an obstacle to capitalizing fully on these arrangements and to employee and union attempts to increase participation through employee ownership. Citing research data show- ing that employee ownership plans may make good economic sense for certain firms, they argue that Board law should not stifle efforts that may CENTURION AUTO TRANSPORT 399 employer relationship, the drivers’ majority ownership of SED does not constitute majority ownership of the “em- ployer” in this case. Nor do their share of voting rights amount to effective control over management affairs of the single-employer enterprise. In no sense can the SED driver-owners be said to be powerful enough to effec- tively control policy of their employer. Of critical significance, the single-employer relation- ship among the four Companies, dominated by the Shafer family, including Waldrop, restricts SED’s auton- omy and diminishes any potential for SED drivers to influence SED’s management policy—let alone that of the four company enterprise—through their ownership of a majority of SED’s class A shares. The substantial au- thority possessed and exercised by Harold Shafer and Daniel Waldrop extends far beyond their direct control of two seats on SED’s board. These two individuals effec- tively control SED’s entire board and the management of that Company. The clout of Harold Shafer and Waldrop derives in great part from the economic leverage exerted by Centurion over SED. Centurion is SED’s only cus- tomer.17 The contract between the two Companies con- tains a clause providing that Centurion can terminate the contract within 30 days. According to Linda Burdick, SED president from September 1991 to 1993, Harold Shafer or Waldrop stated that the meaning of the clause was that if SED did not do something that Centurion wanted Centurion could terminate the contract. She fur- ther testified that “everybody knows about this termina- tion clause.” Waldrop was elected president by the SED board as Burdick’s successor, but he is paid by Centurion, not by SED. With respect to the issue of SED ownership and management, Waldrop commented to a group of five to six driver/stockholders that “it didn’t matter who owned 60/40, it didn’t matter to him, that he and Harold Shafer were going to run the company as they saw fit.” Bur- dick’s testimony about board meetings during her time on the board (1990 to 1994) confirms the accuracy of Waldrop’s comments. She could not remember a time help the firm while also enhancing employee voice. They say that Board law requires clarification, questioning why the potential, or actual, exer- cise of decision making power through stock ownership should disqual- ify a group of employees from collective bargaining. See, e.g., Jeffrey M. Hirsch, Labor Law Obstacles to the Collective Negotiation and Im- plementation of Employee Stock Ownership Plans: A Response to Henry Hansmann and other Survivalists, 67 Fordham L. Review 957 (1998); Michael C. Harper, Reconciling Collective Bargaining with Employee Supervision of Management, 137 U.Pa.L.Rev. 1 (1988) Katherine Van Wezel Stone, Labor and the Corporate Structure: Changing Concep- tions and Emerging Possibilities, 55 U.Chi.L.Rev. 73, 125 (1988) (as soon as employees acquire a real possibility of exercising power in management, they lose the protection of the NLRA). 17 The contract between these two Companies does not prohibit SED from seeking other customers. Burdick testified that SED at one point advertised for other customers, but no contracts resulted. One potential customer declined to negotiate a contract with SED because of Harold Shafer’s and Waldrop’s ownership involvement. when Harold Shafer put forth a position to the board that was voted down, and “everybody that’s on the board listens to Mr. Shafer’s and Mr. Waldrop’s opinions . . . and usually votes . . . with their opinions,” which “weigh heavily on how the board thinks.” The record includes the following examples of mana- gerial control by Harold Shafer and/or Waldrop over SED: (1) Waldrop terminated SED’s vice president, Thomas Nazworth, without the board of directors’ approval, in contravention of SED’s bylaws. (2) In 1992, although then-president Burdick dis- agreed, Harold Shafer decided to take dispatching func- tions away from SED and give them to the newly formed company, ATC. (3) Also in 1992, Harold Shafer changed the rate for calculating SED’s cargo damage claims without even conferring about the change with then-President Burdick, who first learned about this from Ron Hodges, a com- puter programmer for ATC. (4) Harold Shafer, as president of Centurion, effec- tively directed SED to adopt a classification system for its drivers and then to upgrade its drivers within a speci- fied period of time. (5) In a letter dated July 23, 1993, Harold Shafer, as president of Centurion, directed Burdick, inter alia, to implement a new weekend-off policy for drivers,18 and to terminate all drivers whose performance levels were be- low acceptable. (6) Despite then-SED President Burdick’s protest, two SED employees were leased to, rather than hired by, ATC to perform dispatch functions because “Harold Shafer did not want it done [the direct hiring] way.” (7) Waldrop directed that the training of SED drivers be shifted to Centurion, in common with training of Ea- gle drivers. (8) Even before Waldrop became SED’s president in 1992, he decided the bonus amounts for the SED drivers and selected their pension/410(k) plans. (9) When employees from Kenneth Simpson, Inc. (KSI) were hired by SED, Waldrop and Harold Shafer made the decision to give them stock credited according to their employment time with KSI. Pursuant to SED’s bylaws, the board of directors elects SED’s president, who directs the operations of the Com- pany. Waldrop’s election in 1994 gave him official au- thority within the Company, of course, but the record shows that that actual authority of any president elected by SED’s board is subordinate to the authority exercised by Harold Shafer and Waldrop as Centurion’s officers. Burdick testified to further instances where her presi- dency was subordinate to their authority: 18 Carrie Shafer, Eagle’s general manager, had initiated this policy for the Eagle drivers. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 400 (1) They never complied with her request for a docu- ment in the contract between SED and Centurion which listed the rate Centurion paid SED for its services.19 (2) Waldrop denied Burdick’s request for an itemized report of the claims that SED owed Centurion, providing her with only a dollar amount. (3) Ed Summersill, SED’s terminal manager in Com- merce, Georgia, reports to Harold Shafer or Waldrop, rather than to the SED president. Obviously, employee/stockholders do not have an ef- fective managerial voice if the directors they can elect and remove do not themselves have significant manage- rial authority. That is the situation presented here. For the above stated reasons, we find merit to the Petitioner’s argument that, although the SED drivers can elect and remove three of the five directors, it is the other two di- rectors—minority owners Harold Shafer and Waldrop, who ultimately control the management of SED through their authority in Centurion and the other Companies in the single-employer relationship. Thus, this case is closer to those in which the Board af- forded full representation rights to employee/stockhold- ers who as a group owned less than a majority of an em- ployer’s stock and otherwise had no voice in manage- ment. For example, in Upper Great Lakes Pilots, 311 NLRB 131 (1993), ship pilots owned all of the corporate stock. Theoretically, all of them could have been mana- gerial employees because of their ability as a group to affect corporate policy. The Board, however, empha- sized that the majority of the stock was owned by the pilots serving as directors and officers. The remaining pilot stockholders, although a majority in number, had no practical ability to oppose or affect decisions made by the directors and officers. The Board therefore found that those stockholder pilots who lacked an effective voice in management policy were not managerial em- ployees and were entitled to the protections afforded em- ployees under the Act.20 The SED driver/stockholders, notwithstanding their majority ownership interest in SED, have no practical ability to oppose or affect the decisions made by Harold Shafer and Waldrop. As Waldrop himself stated, “it didn’t matter who owned 60/40 . . . he and Harold Shafer were going to run the company as they saw fit.” Under these circumstances, we conclude that the SED driver/stock-holders are statutory employees who can be part of the petitioned-for appropriate collective-bar- gaining unit. Single or Multifacility Unit As previously stated, the Employers contend that an appropriate bargaining unit must include not only drivers 19 Carrie Shafer, the general manager of Eagle, also was never pro- vided with the parallel document in the contract between Eagle and Centurion. 20 See also S-B Printers, Inc., 227 NLRB 1274 (1977). and loading employees working at their Jacksonville facility but also SED drivers working at SED’s Com- merce, Georgia facility. When dealing with a multifacil- ity operation, the well-established Board policy is to find a single-facility unit presumptively appropriate. This presumption can be overcome, however, by a showing of functional integration so substantial as to negate the separate identity of the single-facility unit.21 The party challenging the appropriateness of a single-facility unit “must be able to show that the day-to-day interests of the employees at the single location have merged with those of the employees at the other location.”22 To determine whether the presumption has been rebutted by a showing of substantial functional integration, the Board looks to such factors as prior bargaining history, the geographical proximity to other facilities of the same employer, the degree of day-to-day managerial responsibility exercised by the branch facility management, the frequency of em- ployee interchange, and whether the requested single- facility unit constitutes a homogeneous, identifiable, and distinct employee grouping.23 Based on the facts in the record of this case, we hold that the presumption favor- ing single-facility units has not been overcome. SED’s Commerce facility is more than 300 miles from the Jacksonville facility. There are 20 drivers located in Commerce. The manager of the Commerce facility is Ed Summersill, who is in charge of day-to-day activities. Labor relations are centralized in Jacksonville, although Summersill makes hiring and firing recommendations which are followed. All new drivers, whether hired to work in Commerce or in Jacksonville, are trained in Jacksonville. Drug testing is also performed in Jackson- ville. Summersill also serves on SED’s board of direc- tors and travels to Jacksonville for every meeting. Two Jacksonville managers, Farrell and Gibson, travel to Commerce regularly. Paperwork travels back and forth daily. About five to eight times a month, a Commerce driver, not the same one, travels to Jacksonville. Although labor relations are centralized and the drivers at both Jacksonville and Commerce perform identical work, we find the presumption favoring the appropriate- ness of a bargaining unit limited to Jacksonville facility employees has not been overcome.24 The two locations are geographically distant; the Commerce terminal man- ager has some autonomy in daily operations there; and there is scant evidence of employee contact or inter- change. Accordingly, we will not add the SED drivers in 21 E.g., Red Lobster, 300 NLRB 908, 910 (1990), citing Kapok Tree Inn, 232 NLRB 702, 703 (1977). 22 AVI Foodsystems, Inc., 328 NLRB No. 59, slip. op. at 4 (1999), quoting Renzetti’s Market, 238 NLRB 174, 175 (1978). 23 See Red Lobster, supra. 24 We note that centralized administration, a common characteristic of multifacility enterprises, does not by itself militate against finding a single-facility unit appropriate. See, e.g., Alterman Transport Lines, 178 NLRB 122 (1969), Kapok Tree Inn, supra at 703–704, and cases cited there. CENTURION AUTO TRANSPORT 401 Commerce to the petitioned-for unit of drivers and load- ing employees in Jacksonville. Supervisory Status of SED’s Loading Yard Supervisors and Trainers The record does not support SED’s summary conten- tion that its loading yard supervisors and loading yard trainers have any supervisory authority within the mean- ing of Section 2(11) of the Act. The party asserting statutory supervisory status bears the burden of proving it. See, e.g., Bennett Industries, 313 NLRB 1363 (1994). SED has failed to meet that burden. We shall therefore include employees in these classifications in the peti- tioned-for appropriate bargaining unit. Accordingly, based on the foregoing and the stipula- tions of the parties at the hearing, we find that the follow- ing employees constitute an appropriate unit for collec- tive bargaining within the meaning of Section 9(b) of the Act: All full-time and part-time drivers, including loading employees, employed by Centurion Auto Transport, Inc., Southeast Drivers, Inc., Eagle Auto Transport, Inc., and Automobile Transport Clearinghouse, Inc., a Single Employer, in Jacksonsville, Florida, excluding all office, clerical employees, guards and supervisors as defined in the Act. [Direction of Election omitted from publication.]