Roadway Express, Inc.

In the Matter of ROADWAY EXPRESS, INC., A. & B. FAST FREIGHT, INC., THE TRUCKOWNERS FREIGHT COMPANY, THE HIGLEY FORWARDING Co., DIxIC OHIO EXPRESS Co., HIGHWAY MOTOR FREIGHT LINES, INC., KOONTZ MOTOR FREIGHT, INC., YANKEE LINES, INC., ALL-STATES FREIGHT, INC., MORRISON MOTOR FREIGHT,, INC., THE OVERLAND TRANSPORTATION Co., and OWNER-OPERATOR ASSOCIATION, INC., (UNAFFILIATED) Cases Nos. R-1900 to R-1910, inclusive.-Decided July 18, 19/.0 Jurisdiction : motor transportation industry. Practice and Procedure : petitions for investigation and certification dismissed since no appropriate unit within scope of petition. Mr. W. TV. Morrison, of Akron, Ohio, for Morrison Motor Freight, Inc. Mr. L. Al. Buckingham, of Akron, Ohio, for Yankee Lines, Inc. Mr. James Olds, of Akron, Ohio, for A. & B. Fast Freight, Inc. Mr. Joseph Thomas, of Akron, Ohio, for Roadway Express, Inc., All-States Freight, Inc., The Overland Transportation Co., and High- way Motor Freight Lines, Inc. Mr. Clarence A. Kelly, of Akron, Ohio, for The Truckowners Freight Company, Koontz Motor Freight, Inc., The Higley For Warding Co., and Dixie Ohio Express Co. Mr. Harry E. Sm,oyer and Mr. Eugene B. Schwartz, of Cleveland, Ohio, for the Association. Mr. James C. Connell, of Cleveland, Ohio, for the International. Mr. Loris Cokin, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On April 5, 1940, Owner-Operator Association, Inc., herein called the Association, filed with the Regional Director, for the Eighth Region (Cleveland, Ohio) separate petitions alleging that questions affecting commerce had arisen concerning the representation of em- ployees of Roadway Express, Inc., A. & B. Fast Freight, Inc., The 25 N L. R. B, No 70 605 606 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Truckowners Freight Company, The Higley Forwarding Co., Dixie Ohio Express Co., Highway Motor Freight Lines, Inc., Koontz Motor Freight, Inc., Yankee Lines, Inc., All-States Freight, Inc., Morrison Motor Freight, Inc., and The Overland Transportation Co., all located in Akron, Ohio, herein collectively called the Companies, and request- ing an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 11, 1940, the Association filed amended petitions with the Regional Director. On May 25, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article 111, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, acrd, acting pursuant to Article III, Section 10 (c) (2) of said Rules and Regulations, ordered that the 11 cases be con- solidated for all purposes. On May 31, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Companies, the Associa- tion, and upon International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, Local No. 348, herein called the International, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on June 10, 11, 12, and 13, 1940, at Akron, Ohio, before Harry L. Lodish, the Trial Examiner- duly desigiiated by the Board. The Companies, the Association, and the International were represented by counsel and participated in the hearing. Full opportunity to ba heard, to examine and cross- examine witnesses, and to introduce. evidence bearing on the issues was afforded all parties. At the close of the hearing the Interna- tional moved to dismiss the petition. The Trial Examiner reserved ruling thereon. The motion is hereby granted for the reason stated in Section III below. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 27, 1940, the Association and the International filed briefs which the Board has considered. Pursuant to notice duly served upon all the parties, a hearing was held for the purpose of oral argument before the Board on June 28, 1940, at Washington, D. C. The Companies, the Association, and the International were represented by counsel and part;cipated in the argument. ROADWAY EXPRESS, INC. 1607 Upon the entire record in the case,, the Board makes the following : FINDINGS OF FACT 1. THE I3USINESS OF THE COMPANIES The Companies are Ohio corporations having their principal places of business and offices in Akron, Ohio, where they, are engaged in the transportation of freight by motortruck. Approximately all of the revenue of the Companies is derived from freight handled in interstate shipments. The Companies admit that they are engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Owner-Operator Association, Inc., is an unaffiliated labor organi- zation admitting to membership all drivers, truckmen, and helpers employed by the Companies in Akron, Ohio. International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, Local No. 348, is a labor organization affiliated with the American Federation of Labor. It admits to membership all drivers, truckmen, and helpers employed by the Companies in Akron, Ohio. III. THE APPROPRIATE UNITS The Association urges that all persons employed as "actual work- ers [drivers] either driving their own equipment or driving com- pany-owned equipment, truckmen, and helpers who come in and out of Akron, Ohio," constitute, in the case of each employer, a unit appropriate for the purposes of collective bargaining. The Interna- tional contends that the petitions should be dismissed because an identity of interest exists between the Association and the Companies and that the interests of the owner-operators ara inconsistent with those of the drivers. The Companies' operations are carried on almost entirely with equipment leased from owner-operators, who receive between 60 and 95 per cent of the revenue derived from the use of their equipment as their compensation. The Companies pay for the cargo and liabil- ity insurance on the equipment and permits from the Interstate Commerce Commission are issued in the names of the Companies. The Companies select the routes to be traveled, arrange the transfer of freight, and control the movements of the drivers of the owner- operator equipment as well as the drivers of the equipment owned by the Companies. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximately 70 owner-operators lease more than one piece of equipment to the Companies. The salary of the owner-operators driving their own equipment as well as the salary of the drivers driving equipment owned by owner-operators is deducted from the gross revenue derived from the leased equipment before the owner- operator receives his share of the revenue as his compensation for the use of his equipment. The managers of several of the Companies testified that the drivers of leased equipment not operated by the owner-operator himself are normally selected or recommended by the owner-operators subject. to the approval of the Companies. At least two of the Companies stated that they had no knowledge of the sal- ary paid to the drivers of owner-operator equipment, the salary being fixed solely by the owner-operators. The membership of the Association is composed of more owner- operators and drivers operating owner-operator equipment than of other types of members. In addition to the owner-operators owning more than one piece of equipment the Association has as members a number of owners not operating any equipment. On all the facts iii this case we believe that the units urged by the Association are not appropriate. Under the leased-equipment oper- ating arrangement of the Companies as outlined above, it is apparent that any increment in the wages of the drivers of owner-operator equipment would result in a reduction in the net revenue paid to the owner-operators for the lease_of their equipment, thus making the interests of the drivers and owner-operators inimical. Furthermore, the owner-operators operating their own equipment would have no interest in seeking an increase in wages for themselves as an increase in their salary in the final analysis would merely mean a substantial decrease in the amount they received for the use of their equipment. Finally, in many instances, the owner-operators select or recommend the hiring of the drivers who operate equipment which they have leased to one of the Companies, and also in some instances, fix their wages, thus acting as employers rather than as employees. We find that the units requested by the Association, including, as they do, both owner-operators and drivers, are inappropriate for the purposes of collective bargaining. IV. THE QUESTIONS CONCERNING REPRESENTATION Since the bargaining units sought to be established by the petitions are not appropriate, as stated in Section III above, we find that no questions have been raised concerning the representation of em- ployees of the Companies in appropriate bargaining units. ROADWAY EXPRESS, INC. 609 Upon the basis of the above findings of fact and upon the entire record in the case, thu Board makes the following : CONCLUSION OF LAW No questions concerning representation of employees of Roadway Express, Inc., A. & B. Fast Freight, Inc., The Truckowners Freight Company, The Higley Forwarding Co., Dixie Ohio Express Co., Highway Motor Freight Lines, Inc., Koontz Motor Freight, Inc.. Yankee Lines, Inc., All-States Freight, Inc., Morrison Motor Freight, Inc., and The Overland Transportation Co., Akron, Ohio, in units which are appropriate for the purposes of collective bargaining have arisen, within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board orders that the petitions for investigation and certification filed by Owner-Operator Associa- tion, Inc., be, and they hereby are, dismissed. Ma. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.