Associated General Contractors of California, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1974

209 N.L.R.B. 363 (N.L.R.B. 1974)

ASSOCIATED GENERAL CONTRACTORS OF CALIF., INC. 363
Contractor Members of the Associated General
Contractors of California, Inc. and A . R. Kramer,
Petitioner and Teamsters Local Union Nos. 94,
137, 150, 216, 287, 291, 315, 386, 431, 439, 490,
533, 624, 684, 890 , 912, and 980, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
20-RD-721
March 5, 1974
SUPPLEMENTAL DECISION AND
DIRECTION OF ELECTION
By CHAIRMAN MILLER AND MEMBERS
FANNING, JENKINS, AND PENELLO
On January 17, 1973, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which it found that the owner-
operators involved were "employees" within the
meaning of the Act and therefore eligible to
participate in the decertification election sought. The
Board also stated:
While we have found the owner-operators to be
employees and that they are entitled to partici-
pate in an election, the present records before us
disclose that the only issue fully litigated at the
hearings related to the question of whether they
were employees or independent contractors, and
the parties are not all in agreement regarding
other issues Thus, as a means of illustration and
not limitation, the parties would appear not to
agree as to the unit which will be appropriate, the
eligibility of employees now entitled to vote, and
whether or not a joint employment situation exists
where owner-operators are supplied by overlying
carriers. Accordingly, we deem it necessary to
remand each case to the appropriate Regional
Director for such further action as the Regional
Director deems appropriate regarding the above-
mentioned and any remaining issues preparatory
to directing elections.
Pursuant to the Board's remand order further
hearings were held in this case in San Francisco on
June 12, 13, 14. and 15, 1973, before Hearing Officer
Robert G. Grace. Thereafter, pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure, Series
8, as amended, the Regional Director again trans-
ferred the case to the Board for decision. All parties
involved have filed briefs.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. Upon the entire record in this case, the
Board makes the following findings.
The Petitioner and David A. Bettencourt, the
Intervenor, hereinafter referred to as Petitioners, seek
a decertification election in a bargaining unit of
construction industry drivers under the so-called
Northern California Master Agreement, covering
Northern and Central California, between the
Unions herein involved and the contractor associa-
tions. By way of background, when this case was
originally before the Board, the primary position of
the Petitioners was that they, and others similarly
situated, considered themselves independent contrac-
tors whom the Unions purported to represent.
Without abandoning this position, they stated that if
they nevertheless were found to be employees, they
were asserting that the Unions did not in fact enjoy
majority support from them for purposes of collec-
tive bargaining. Consequently, they sought decertifi-
cation of the Union.
In the present posture of the case, the Petitioners
contend that, inasmuch as the Board has found them
to be "employees," they now take the position that
an election in'this case should be conducted in a unit
consisting solely of owner-operators and that the
employee-drivers of the contractors should be ex-
cluded. While conceding that a unit limited to
owner-operators constitutes only a portion of the
contract unit established by the Northern California
Master Agreement and would constitute a deviation
from the Board's general rule that the unit appropri-
ate in a decertification election must be coextensive
with the unit previously certified or the unit
recognized,2 they nevertheless contend that the facts
of this case constitute good and sufficient reasons for
deviation from the normal rule applicable to decerti-
fication elections.
The thrust of their argument in favor of a unit
smaller than the recognized contractual one is that
there is no real community of interest between
owner-operators and the employee-drivers, and that
the community of interest between owner-operators
is such that they could constitute an appropriate unit
separate and apart from employee-drivers. Primarily,
they contend that the differences between the
interests, motivations, and objectives of the owner-
operators and the employee-drivers stem largely
from the fact that owner-operators either own or
have substantial financial investments in the equip-
ment they operate. The foregoing, and other argu-
ments advanced in favor of a separate unit, are
essentially the same ones which were argued by the
1 201 NLRB 311.
2 See Campbell Soup Company. 1I I NLRB 234, and Clohecy Collision,
Inc, 176 NLRB 616.
209 NLRB No. 61
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties to the Board in the earlier proceeding in
support of their contention that the owner-operators
were independent contractors. In rejecting that
contention and finding employee status, the Board
considered, inter alia, the fact that once on the job
the owner-operators work under the same conditions
as do employee-drivers. The contractor establishes
the starting time, quitting time, and the lunchbreak
for all dump truck drivers, be they owner-operators
or employee-drivers. Representatives of either the
contractor or overlying carrier, or both, direct owner-
operators as well as employee-drivers in such matters
as location of material, dumpsite, and routes to be
taken.
Thus, many of the facts which established the
employee status of these individuals also show the
community of interest they share with the employee-
drivers. Accordingly, we do not view the owner-
operators' substantial financial investments in their
trucking equipment, and other indicia of separate-
ness, sufficient to warrant modification of the
recognized unit.
In this respect we also find no merit in the
contentions raised by both the Employers and
Petitioners that cases such as Fisher-New Center Co.,3
Duke Power Company Lee Steam Station,4 and Food
Fair Stores, Inc.,5 require a separate more restricted
unit in this case. Fisher involved a recognized unit of
guards and nonguards and the Board concluded that
the statutory requirement of Section 9(b)(3) of the
Act made necessary an exception to the general rule
established in Campbell Soup, supra. Both Food Fair
and Duke Power essentially involved separate plants
or departments which within themselves could be
separate units and which had not become merged
with the overall unit.6 Nor do we find persuasive the
argument that where a large unit is appropriate,
Section 8(f) of the Act otherwise requires the carving
out of a smaller portion of that unit. On the basis of
the foregoing, we find the recognized unit appropri-
ate for purposes of a decertification election.?
The petition when filed related to the 1968 Master
Agreement which expired in June 1971. The petition
was subsequently amended so as to cover the 1971
master agreement which was in effect at the time of
the hearings. The later agreement contained a clause
substantially similar to the previous one insofar as
owner-operators were concerned except it provided
that the coverage of the owner-operators would begin
on the second day of work and would also apply to
work performed for the employer away from the
jobsite . It further provided, however , that the
additional provision regarding work performed away
from the jobsite would not be implemented if unfair
labor practice charges were filed regarding it. At the
time of the first hearing, there was a question as to
whether the owner-operator coverage clause extend-
ed to so-called nonjobsite work since unfair labor
practice charges had been filed regarding the offsite
coverage . Subsequent to the Board 's decision finding
that the owner-operators are employees within the
meaning of the Act, such charges were dismissed in
April 1973. Thus, the owner-operator clause now
extends tojobsite and nonjobsite work.
The record herein discloses the existence of a group
of contractors who are not members of the multiem-
ployer association signatory to the master agreement.
They do, however , in many instances execute with
the Unions a "short form" agreement which embod-
ies therein certain provisions of the master agree-
ment . The Unions argue that, since these "short
formers" adopt the master agreement and because
their employee-drivers work under conditions similar
to these of the other employees , the employees of
"short formers" should be included in the unit. The
Employers and Petitioners disagree.
The record establishes that the multiemployer
associations signatory to the master agreement
negotiate separately with the Unions and do not have
the authority, nor do they purport , to negotiate on
behalf of or bind the many contractors who sign the
short form agreements . It appears that, after the
negotiations of the association contract , the Unions
undertake negotiations with the "short formers" on
an individual basis . While the agreements incorpo-
rate various features of the master agreement, each
excludes the grievance procedure contained in the
master agreement . Inasmuch as the record clearly
shows that the "short formers" by virtue of not being
signatory to the master agreement are not members
of the multiemployer associations unit , the addition
of employees employed by them would expand the
unit's scope beyond that contemplated by the
contract . Accordingly, we conclude that the employ-
ees of "short formers" should be excluded from the
unit . The evidence herein does not otherwise support
a finding that a joint employer relationship exists
between the contractor members of the associations
and the "short formers."
A question for further consideration on remand
was whether the overlying carrier was a joint
employer with the contractor when furnishing owner-
3 170 NLRB 909. must be coextensive with either the unit previously certified or the one
4 191 NLRB 308 recognized in the existing contract.
s 204 NLRB No. 23 (Member Fanning dissenting) r Petitioners state they are willing to proceed to an election in any unit
6 Member Fanning adheres to his view as expressed in his dissenting which is found appropriate.
opinion in Food Fair that the unit appropriate in a decertification election
ASSOCIATED GENERAL CONTRACTORS OF CALIF., INC.
operators. At the instant hearing, evidence was
presented which tended to show that once owner-
operators are dispatched to a job the overlying
carriers have very little contact with them and do not
exercise supervision and control over the details of
the work performed by owner-operators. When
owner-operators perform work for contractors, either
directly or through an overlying carrier, it is the
contractors who retain and exercise the authority to
control the details of their work and to impose
discipline. These facts do not warrant a finding that
the overlying carriers are joint employers with the
contractors.
The parties agree, and the evidence shows, that the
patterns of employment for the employees in this
case are sporadic. They contend the Board should
adopt an eligibility formula which incorporates the
principles set forth in Daniel Construction Company,
Inc.,8 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.9 We find merit in this contention.
Accordingly, we shall 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 this 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 the Employers contend that
the Employers should not be required to provide an
election eligibility list as required by the Board's
decision in Excelsior Underwear Inc,"' In this regard,
they contend the Employers are not likely to have
such information required for compiling the names
and addresses of owner-operators. As an alternative,
they suggest that, inasmuch as the California Public
Utilities Commission (PUC) maintains the names
and addresses of the approximately 6,500 dump
truck carriers who hold permits in the State, the
PUC's records should be the source for the names
and addresses of owner-operators. With regards to
employee-drivers, they suggest that union health and
X 167 NLRB 1078.
9 The Employers lake no position on this proposal
365
welfare records should be the source of names and
addresses.
We note however that there is no evidence that the
PUC lists have any relationship to employment
within the unit. The other arguments advanced by
the Petitioners and Employers to the effect that the
contractors would not voluntarily honor a request for
payroll information do not persuade us that there is
sufficient justification for deviating from our normal
policy of requiring payroll information for the
purpose of establishing an eligibility list. According-
ly, we shall require the Employers to submit a list of
eligible voters. The Regional Director may supple-
ment this information by also using relevant inform-
ation maintained by the Unions as they have stated
they are willing to cooperate in establishing the
eligibility list.
In accordance with the foregoing, we shall direct
an election by mail ballot in the following unit:
All employees of employer-members of Associat-
ed General Contractors of California, Inc., the
Engineering and Grading Contractors Associa-
tion, and the Northern California Homebuilders
Conference who were covered by the collective-
bargaining agreement known as the Master
Agreement entered into on September 23. 1971,
between the above-mentioned associations and
Heavy Highway Building and Construction
Teamsters Committee for Northern California on
behalf of Teamsters Local Unions Nos. 94, 137,
150, 216, 287, 291, 315, 386, 431, 439, 490, 533,
624, 684, 890, 912, and 980, but excluding all
other employees including guards, watchmen, and
supervisors as defined in the Act.
[Direction of Election 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, I 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.
10 156 NLRB 1236