Associated General Contractors of California, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1974

209 N.L.R.B. 366 (N.L.R.B. 1974)

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