274 N.L.R.B. 1144 (N.L.R.B. 1985)

Atlantic Interstate Messengers, Inc.

National Labor Relations Board - Board DecisionsMar 27, 1985

274 N.L.R.B. 1144 (N.L.R.B. 1985)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlantic Interstate Messengers , Inc. and Steven M. Sucher . Case 39-CA-1037 27 March 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 6 May 1983 Administrative Law Judge Thomas T. Trunkes issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order as modified. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain af- firmative action which we find necessary to effec- tuate the policies of the Act. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In affirming the judge's conclusion that the Respondent's contract drivers are not independent contractors within the meaning of Sec 2(3) of the Act, we find it unnecessary to rely on Mitchell Bros Truck Lines, 249 NLRB 476 (1980) The record clearly establishes that the Respondent retains the right to control the manner and means by which the drivers accomplish its desired results Thus, the Respondent's drivers are disci- plined for insubordination, fined for improper recordkeeping, must wear uniforms, may not grow beards, must keep records not required by gov- ernment agencies, cannot refuse job assignments, and may not deviate from the order of pickups and deliveries established by the dispatcher Compare Air Transit, The, 271 NLRB 1108 (1984), where we found that the taxicab drivers involved therein were independent contractors In contrast with this case, the drivers in Air Transit had no action taken against them in response to customer complaints received by the compa- ny, provided the company with no reports regarding the number of trips, the amount of fares received, daily schedules, or the number of hours driven, obtained much of their work by waiting in line for available cus- tomers, kept what they earned, paying to the company only a rental fee called "stand dues", and generally conducted their business without com- pany supervision The Respondent excepts to the judge's order that it make payments to the Social Security Administration on behalf of all of its drivers We find merit in this exception The Respondent's failure to make such payments on behalf of drivers it alleged to be independent contractors was not al- leged in the complaint to be an unfair labor practice The judge cites no authority for this portion of his recommended Order, and the issue was not litigated Accordingly, we reverse the judge's conclusions in this regard In the remedy section of his decision, the judge found that the employ- ees were discharged on 17 February 1982 Contrary to the judge, we find that the employees were discharged on 19 February 1982 and shall order the Respondent to make them whole for losses suffered from that date Having found that the employees named below were discharged for having engaged in a protected concerted work stoppage, and not having thereaf- ter been offered reinstatement, we shall order the Respondent to offer them immediate and full rein- statement to their former positions or, if such posi- tions have been abolished or changed in the Re- spondent's operations, then to any substantially similar position without prejudice to any rights and privileges that they may have, and that the Re- spondent make them whole for any loss of pay that they may have suffered by reason of the Respond- ent's discriminatory terminations of them by pay- ment to each of them of a sum equal to that which they would have normally earned from 19 Febru- ary 1982, the date of their terminations, until the Respondent offers them reinstatement, less any net earnings for the interim period. Backpay is to be computed on a quarterly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus inter- est as computed in Florida Steel Corp., 231 NLRB 651 (1977).3 Also, we shall order the Respondent to notify each of the employees named below that it has removed from its files any reference to their discharges and that the discharges will not be used against them in any way. Finally, we shall order the Respondent to cease and desist from infringing in any manner on the rights guaranteed them in Section 7 of the Act. The employees encompassed within this Order are. James Daniels Hampton Dais Willie Brown Clarence Thomas William Pendleton Allan Hartle Kent Richards Richard Brown Walker Williams Ulysses Wright Roy Duggins Nat Brown Lawrence Thomasson Willie Doran Steve Sucher Fred Altieri David Hulton Carl Marcucio ORDER The National Labor Relations Board orders that the Respondent, Atlantic Interstate Messengers, Inc., Stamford, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge, discharging and failing or refusing to reinstate, or otherwise dis- 9 Chairman Dotson and Member Dennis agree with the dissent in Abilities & Goodwill, 241 NLRB 27 (1979), that the majority in that case improvidently overruled more than 30 years of Board precedent requir- ing unlawfully discharged strikers to offer to return to work in order to initiate the running of backpay In the absence of three votes to overrule Abilities & Goodwill, they will apply the remedy set forth in that decision 274 NLRB No. 171 ATLANTIC INTERSTATE MESSENGERS 1145 criminating against its employees in regard to hire or tenure of employment or any other terms or conditions of employment because they have en- gaged in a strike or other protected concerted ac- tivities for their mutual aid or protection. (b) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, as amended. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer the employees named above in the remedy section immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the deci- sion. (b) Remove from its files any references to the unlawful discharges and notify the employees in writing that this has been done and that the dis- charges will not be used against them in any way. (c) Make the employees whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its facility in Stamford, Connecticut, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Of- ficer in Charge for Subregion 39, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Officer in Charge for Subregion 39 in writing within 20 days from the date of this 4 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " Order what steps the Respondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT threaten to discharge, or dis- charge and fall or refuse to reinstate, or otherwise discriminate against our employees in regard to hire or tenure of employment or any other terms or conditions of employment because they have en- gaged in a strike or other protected concerted ac- tivities for their mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL offer to the employees listed below im- mediate and full reinstatement to their former posi- tions or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority, vacation, or other rights and privi- leges. WE WILL notify each of the employees listed below that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. WE WILL make whole, with interest, each of the employees listed below for any loss of earnings suf- fered by them as a result of our discrimination against them. James Daniels Hampton Dais Willie Brown Clarence Thomas William Pendleton Allan Hartle Kent Richards Richard Brown Walker Williams Ulysses Wright Roy Duggins Nat Brown Lawrence Thomasson Willie Doran Steve Sucher Fred Altieri David Hulton Carl Marcucio ATLANTIC INTERSTATE MESSENGERS, INC. DECISION STATEMENT OF THE CASE THOMAS T. TRUNKES, Administrative Law Judge. This case was tried at Darien, Connecticut, on October 1146 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD 27 and 28, 1982.1 The charge was filed by Steven M. Sucher,, an individual (Sucher or the Charging. Party), on February 26,' and the complaint was issued on April 9. The complaint alleges that Atlantic Interstate Messen- gers, Inc (AIM or Respondent), violated Section 8(a)(3) and (1) of the National Labor Relations Act by threaten- ing its employees with discharge and thereafter discharg- ing employees for having engaged in a strike. Respond- ent filed' an answer , denying the commission of any unfair labor practices. All parties were afforded full opportunity to partici- pate , adduce evidence, examine and cross-examine wit- nesses, argue orally, and file briefs. The General Counsel and Respondent filed timely briefs after waiving oral ar- gument. The Issues delivery service from 1958 to 1963, when a name change occurred. Prior to 1962, Respondent owned its vehicles and hired-drivers to operate them. The drivers were paid a salary only.. They received fringe benefits, and taxes and unemployment insurance were withheld from their salaries. Respondent performed maintenance services on its vehicles. Since, 1962 Respondent has not owned any vehicles. Respondent does not employ any drivers, but utilizes ' drivers, herein referred to as either drivers or owner-operators, under a lease agreement.2 Respondent is a regulated common carrier, operating under Federal regulations of the Interstate Commerce Commission for interstate operations and under state regulations for intra- state operations. States which control its operations in- clude Connecticut, Rhode Island, Massachusetts, New Hampshire,. and Maine. 1. Whether individuals who own their own vehicles while driving for AIM are either independent contrac- tors or employees within the meaning of Section 2(3) of the Act. 2. Whether AIM threatened its employees with dis- charges and effected said discharges for having engaged in a strike, a protected concerted activity under the Act. On the entire record of the case, including my obser- vation of the witnesses, and after careful consideration of the briefs, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Connecticut corporation with an office and place of business located in Stamford, Connecticut, herein the Stamford facility, has been engaged in the op- eration of an interstate delivery service. During the 12- month period ending March 31, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $50,000 for the transportation of freight and commodities from the State of Connecti- cut directly to points outside of the State. During the same 12-month period ending March 31, Respondent per- formed services valued in excess of $50,00 in States other than the State of Connecticut. Based on the above set of facts, all admitted by Respondent, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II. THE ALLEGED UNFAIR LABOR PRACTICES A. Operations of Respondent Respondent operates an interstate delivery service, with its main office located in Stamford, Connecticut. The sole shareholders of Respondent are Theodore Pa- chios, president, and Harold Pachios, Theodore's son, ex- ecutive vice president and chief operations officer. The other officer of Respondent is Andrew Moore, vice president of operations. These three individuals are con- ceded by Respondent to be supervisors within the mean- ing of Section 2(11) of the Act. Respondent was a mail i All dates, unless otherwise specified, refer to the year 1982 B. Status of Owner-Operators The General Counsel and the Charging Party contend that the owner-operators are employees within the mean- ing of Section 2(3) of the Act. On the other hand, Re- spondent contends that the owner-operators who lease their equipment to Respondent are independent contrac- tors, not employees. The facts, as elicited from the testimony and documen- tary evidence presented at the hearing, are essentially un- disputed. To support the contention of Respondent, the facts reveal that each owner-operator owns his own ve- hicle, maintains and services the vehicle, and is responsi- ble for traffic tickets and damages that may occur to his vehicle. In addition, he owns the 2-way radio in his vehi- cle,3 pays insurance, and pays for oil, gasoline, and lubri- cation. AIM does not withhold any Federal or state taxes, social security payments, or unemployment insur- ance payments. The owner-operators do not receive any fringe benefits as bonuses from AIM. They are not sala- ried, but are paid commissions Their earnings basically depend on the number of trips made during the course of a day. Their assignments are not based on seniority, nor are they required to work a specific number of days or hours. They take time off as they please and vacations at will. AIM provides no financial assistance for the pur- chase of their vehicles. No supervisors observe the per- formance of their work. In support of the General Counsel and the Charging Party's contention, the evidence reveals that the owner- operators are required to wear uniforms and not grow beards. They must have 2-way radios in their vehicles and display decals indicating that they are driving for AIM. They are to notify the dispatcher of their nonavai- lability for work the day before the workday in question. They are disciplined for failure to obey company rules and government regulations and for insubordination to company officials. This discipline includes both suspen- sion and termination. AIM unilaterally has changed the percentage ratio which the owner-operators receive as commissions. Owner-operators must submit weekly log 2 The leases with the drivers are regulated by Title 49, Code of Feder- al Regulations , Secs 1057 11-12 and 1058. 8 Except for crystals, which are supplied by AIM ATLANTIC INTERSTATE MESSENGERS sheets to AIM. The equipment of the vehicle must comply with all Federal and State regulations. There is an open lease with a 10-day written notice of termination by AIM. Owner-operators are required to keep the list of AIM customers confidential. They receive a security card and a building key from AIM. Attendance at com- pany meetings of AIM is mandatory Owner-operators are prohibited from discussing business with customers. They cannot refuse job assignments and are disciplined for such refusals.4 There is to be no abusive use of the radios. The Company issues credit cards to drivers for food, fuel, and other incidentals The dispatcher estab- lishes the order of pickups and deliveries. Owner-opera- tors are directed to certain areas and wait for radio calls from the dispatcher at the start of the business day at 8 a.m. They do not work for any other employer, only for Respondent. In addition, the nature of the relationship between owner-operators and AIM is largely dictated by state and Federal regulations.5 The agencies of the Federal government controlling the operators of the owner-oper- ators on interstate highways include the Federal High- way Administration, the Interstate Commerce Commis- sion, and the Department of Transportation. Regulations issued by these agencies include almost every aspect of the employment relationship of the drivers The most im- portant regulations, 49 CFR Sections 390-397, are listed in the Federal Motor Carrier Safety Regulations Pocket Book which is published by the Department of Trans- portation and the Federal Highway Administration. Each driver is obligated to comply with the regulations as found in the booklet which they received from AIM. The record reveals that AIM has the license from the Interstate Commerce Commission to operate these trucks on interstate highways. None of the drivers, but one, has said license. Thus, according to the ICC rules, these drivers cannot work for employers other than AIM. AIM acknowledges that owner-operators follow the rules laid down by the Department of Transportation and the Interstate Commerce Commission Thus, they are required to fill out bills of lading, manifests, hourly and mileage sheets. Lastly, the evidence revealed that Vice President Andrew Moore has the power to "hire and fire drivers." In addition, Moore had informed owner-operators that dispatcher Pocograno also has the authority to "hire and fire" them Discussion and Analysis In a recent Board decision,6 the Board detailed the tests applicable to this case As the Board stated: [T]he Supreme Court has held that the Board should apply the common law agency test in deter- mining whether an individual is an employee or an " This is the only fact in dispute Harold Pachios testified that owner- operators can refuse assignments However, documentary evidence intro- duced at the hearing establishes that failure to accept assignments may result in disciplinary action, including termination of the lease by AIM Accordingly, I do not credit Pachios' testimony in this respect 5 The evidence established that AIM operates basically in the New England States, New York, and New Jersey 6 Perrysville Coal Co, 264 NLRB 380 at 381 (1972) 1147 independent contractor. Under the common law "right to control" test, where the one for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, an employer-employee relationship exists. But where the one for whom the services are to be performed retains only the right to control the result, the relationship is that of an independent contractor. The "right to control" test is easy to recite, but not so easy to apply "all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." And, as we said in Austin Tupler Trucking, 261 NLRB 183 (1982): Not only is no one factor decisive, but the same set of factors that was decisive in one case may be unpersuasive when balanced against a different set of opposing factors. And though the same factor may be present in different cases, it may be entitled to unequal weight in each because the factual back- ground leads to an analysis that makes that factor more meaningful in one case than in the other. There are, in the instant case, as is usual in these cases, certain factors that may be indicative of em- ployee status as well as factors indicative of inde- pendent contractor status. To decide on which side of the line these drivers fall requires more than a quantitative analysis based on adding up the factors on each side; it requires the difficult task of assess- ing the relative significance of each factor, and ulti- mately each set of factors, in light of the impact of each factor on the overall relationship between the drivers and the Employer. One of the key cases relied on by the General Counsel is Mitchell Bros. Truck Lines, 249 NLRB 476 (1980), in which the Board, in considering various factors, found the owner-operators to be employees within the meaning of Section 2(3) of the Act. Conversely, Respondent relies on Reisch Trucking Co, 143 NLRB 953 (1963), in which the Board found owner-operators not to be employees but, rather, independent contractors. Although the in- stant case contains elements common to both Reisch and Mitchell, and one may very logically draw different con- clusions with respect to the employment status of owner- operators in the instant case, for the reasons enunciated below, I have concluded that the facts of the instant case are more attuned to the facts of Mitchell, rather than Reisch Accordingly, in agreement with the General Counsel, I have concluded that the owner-operators are employees of Respondent within the meaning of Section 2(3) of the Act. This conclusion is based on a compari- son of factors considered decisive by the Supreme Court in United Insurance Co., 390 U S. 254, 256 (1968), which reveals the following- 1. The insurance agents perform functions essential to the company's normal operations In the instant case, not only are the owner-operators essential to operations, they, in effect, are its operations, i e., that of transporting goods for customers. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 The insurance agents did not need any prior training or experience. No evidence was adduced during the hearing that any training or experience was necessary for owner-operator to obtain their leases from AIM. 3 The insurance agents did business in the company's name with assistance from the company's managerial personnel and ordinarily only sold the company's insur- ance policy Here, the owner-operators, by virtue of their uniforms and decals on their vehicles, are, in effect, doing business in the name of AIM, with assistance from the dispatcher who assigns to them their various pickups and deliveries. 4. The insurance agents had a permanent working ar- rangement with the insurance company and their em- ployment continued as long as their performance was satisfactory to the company. In the instant case, the owner-operators' employment with AIM is secure, pro- viding that their performance complies with rules and regulations of both AIM and various government agen- cies The evidence is overwhelming that AIM had re- tained an absolute unilateral control with respect to the determination of performance by the owner-operators. Sufficient evidence through both oral testimony and doc- uments has been adduced at the hearing to convince me that the supervisory staff of Respondent, namely, Vice President Moore, has both the authority and the power to hire and discharge owner-operators at will . The fact that AIM has leases with the owner-operators which provided for a 10-day notice prior to termination of the lease is inconsequential 5. The insurance agents received fringe benefits of the company such as vacation pay, pensions, and group in- surance. The owner-operators herein received none of these benefits nor are they covered by social security, unemployment insurance , or workmen' s compensation. Although these factors, as Respondent urges, indicate a status of independent contractor, such failure by AIM to provide these benefits is not dispositive of the issue 7 6. The Supreme Court also found that the insurance agents were required to account to the company for the funds that they collected However, their working hours were outside the physical control of the company's man- agement , and their collections were made outside the company's offices. By requiring a close accounting of funds received, the company exercised considerable con- trol over their agents' activities while they were outside the office The company required each agent to turn in his collection weekly and the agent received a percent- age of these collections. In the instant case, AIM exer- cises similar control over its owner-operators Thus, owner-operators are required to submit weekly logs in order to receive their commissions. Their income is based upon assignments made to them by the dispatcher. The owner-operators are required to position themselves at various locations or report directly to AIM's office in order to receive their daily assignments Most important- ly, however, the imposition of various conditions of em- ployment, such as personal grooming and the wearing of uniforms , clearly establishes that AIM retains the right to control the manner and means by which the result is ac- complished, which is the principal test to determine the relationship between the owner-operators and AIM 7 The Supreme Court found that the terms and condi- tions under which the insurance agents worked were promulgated and changed unilaterally by the company. As indicated in the facts set forth above, it is clear that AIM retains the right to impose and/or change unilater- ally any or all of the working conditions of the owner- operators. In addition to the comparisons listed above between the insurance agents of United Insurance Co , supra, and the owner-operator herein, other facts which weighed heavily in my decision to find the owner-operators as employees include the following. 1. The undisputed evidence that AIM exercises disci- plinary measures against the owner-operators should they fail to comply with various directives of both AIM and government regulations. 2. The control which AIM has over its drivers' entre- preneurial opportunities. The record is clear that the owner-operators are prohibited, whether by government regulations or Respondent itself, from engaging in inde- pendent truck hauling while engaged by Respondent. Thus, unlike independent contracthors, the owner-opera- tors herein are dependent strictly on its employment op- portunities from AIM's supervisors, i.e , the dispatching of work by its dispatchers. The enforcement by AIM of the Federal and state regulations imposed upon common carriers, the most important being those rules and regula- tions contained in the "pocket book," discussed supra, was an important factor found in Mitchell Bros in the Board's determination that Mitchell Bros acted as an em- ployer of the owner-operators. As the Board stated in Mitchell Bros (249 NLRB at 480, 481) Indeed, we conclude on this record that it matters not whether the controls placed on the drivers ema- nate from Mitchell Bros. independently, or whether these controls are imposed on Mitchell Bros, which, in turn, imposes them on the drivers Either way, these controls define the carrier's employment relationship with its drivers. The Board also stated in an earlier case:8 It is irrelevant, in our view, that some of the rules enforced by George emanate from the Interstate Commerce Commission, the Department of Trans- portation, or other government agencies For, surely, as this record shows, the drivers controlled by George are not under the aegis of those agen- cies, but under the complete and operative authority of George, subject to losing their employment at the will of George. 3. Unlike independent businesses , the owner-operators depend on AIM for their business, and AIM depends on the owner-operators to perform AIM's business. As the Board held in Mitchell Bros., 249 NLRB at 482, "This interdependence belies an independent contractor rela- 7 Checker Cab Assn, 185 NLRB 182, 184 (1970) 8 George Transfer & Rigging Co, 208 NLRB 494, 498 (1974) ATLANTIC INTERSTATE MESSENGERS tionship and supports our finding that the drivers are em- ployees within the meaning of . . . the Act." As I indicated supra, and as Respondent argued, there are various factors in the instant case that would tend to indicate an independent-contractor's status of the owner- operators. However, on balance, these factors are out- weighed by the factors listed herein demonstrating em- ployee status of the owner-operators.9 C The Alleged Threat and Discharge of Owner- Operators for Engaging in Protected Concerted Activities The General Counsel contends that on February 15 and 16, Respondent's supervisors, Vincent Pocograno, Andrew Moore, and Theodore Pachios at various times, through various methods, threatened the owner-opera- tors with discharge if they did not cease an economic strike and return to work. In addition, the General Coun- sel alleges that on February 17 Respondent discharged various owner-operators for their failure to heed its threats. Respondent denies the allegations of the General Counsel It contends that the owner-operators are not employees of Respondenf'and therefore could not have been discharged by it, and assuming, arguendo, that said owner-operators were found to be employees of Re- spondent, it denies making any threats of discharge or discharging them because of their protected concerted activities. The evidence revealed that on February 1, by letter, Theodore Pachios, president of Respondent, notified the owner-operators that effective February 14, "due to the present economic conditions, Atlantic Interstate Mes- sages, Inc., finds it necessary to change the percentages to a fifty-fifty ratio "10 Thereafter, on Friday, February 12, approximately 35 owner-operators held a meeting at which time they elect- ed 4 drivers to meet with Respondent's officials with the expectation of obtaining a higher percentage. They fur- ther agreed that they would complete their assigned de- liveries the following Tuesday morning (Monday, Febru- ary 15, was a holiday, Washington's birthday) and would not accept any further work under the 50/50 ratio. The four committee members Hampton Dais, George Tho- masson, Eddie Nemchek, and Jimmy Marron, met with Vice President Moore on Saturday, February 13, and no- tified him of their decision. Unable or unauthorized to modify Respondent's position, Moore telephoned Theo- dore Pachios, and informed him of the problem. On Monday, February 15, the four committee members met with Theodore Pachios and his son, Harold. Several sug- gestions were made by the four owner-operators to 9 Cf Austin Tupler Trucking, supra, in which the Board found owner- operator drivers to be independent contractors I find the facts of that case distinguished from both Mitchell Bros and the instant case 10 The percentages refer to the amount of money by percentage that owner-operators were paid commission for their deliveries Originally, it was a straight 60/40 ratio in favor of the owner-operators This percent- age was reduced to a 60/55 cut, the latter percentage to be received by owner-operators making more than one delivery Thereafter, the ratio was further reduced to a 58/53 split, the percentages the owner-operators were receiving until February 1982 1149 which Pachios stated that he would consider their sug- gestions The owner-operators thereafter began their "job action " According to several of the owner-opera- tors, Andrew Moore, on either Monday or Tuesday, February 15 or 16, informed several owner-operators, that if they did not return to work, they would be dis- charged On the following day, Pocograno, the dispatch- er, reiterated that if the men did not return to work they would be discharged In addition, Theodore Pachios in- formed Hampton Dais to furnish him with a list of owner-operators who wanted to come back to work, and wanted a deadline for their answer so that replacements could be had for those who failed to return When ques- tioned whether or not Theodore Pachios stated that he would terminate the owner-operators if they did not return, Dais testified, "I think he said terminate after the deadline " Thereafter, on Friday, February 19, another meeting of the owner-operators was held during which time Dias informed the other drivers of Pachios' deadline to return to work As a result, several drivers did return to work that day, Dais again had a meeting with Pachios on Friday, February 19. He was told there would be no more discussions and that the owner-operators were fired. He also was advised that the owner-operators could pick up their paychecks and turn in their Sonitrol card," their tickets, and the key to the front door. Thereafter, some of the owner-operators returned to work, while the majority remained on strike. In its defense, Respondent presented both Andrew Moore and Theodore Pachios. In effect, although they did not dispute the sequence of events as testified to by the General Counsel's witnesses, they refused to ac- knowledge that any threats were made to the owner-op- erators, or that they were discharged at any time Pa- chios insisted that they were free to return whenever they desired Pocograno, the dispatcher, was not called upon by Respondent to testify. Discussion and Analysis Section 7 of the Act declares that employees "shall have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection " Interference, restraint, or coercion in the exercise of this right is an unfair labor practice within the meaning of Section 8(a)(1) of the Act. Concerted activities are protected by Section 7 of the Act even though no union leadership or membership is involved It is well settled that a primary strike is pro- tected whether called for economic reasons or to protest unfair labor practices. The facts of the instant case clearly establish that the owner-operators, on being informed by Respondent that their commissions were being reduced to a 50/50 split, banded together and elected four of their coworkers to meet with Respondent officials in order to express their dissatisfaction with Respondent's decision. To emphasize their displeasure, they agreed concertedly to engage in ' 1 Sonitrol cards are identification cards furnished by AIM to allow access to its premises 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an economic strike until the matter was settled. Such action by the owner-operators constitutes an economic strike, a protected activity, and therefore, any discrimina- tory conduct or threats of same by Respondent is a vio- lation within the meaning of the Act. Although Respondent contends that the evidence is in- sufficient to substantiate the complaint of the General Counsel that it had engaged in any discriminatory action against the owner-operators, or that it had threatened such discrimination, I do not find merit in Respondent's position, and I have concluded that the weight of the evidence supports the General Counsel's position. Substantial credible evidence was obtained through testimony of several of the owner-operators that they were informed by Pocograno, Moore, and Theodore Pa- chios that unless they returned to work within a specific deadline, they would be terminated. In response to the testimony of the owner-operator, Respondent presented Moore and Pachios. Although Re- spondent argues in its brief that Moore and Pachios denied ever making any threats of termination of the owner-operators, an analysis of the testimony of these two individuals does not support that contention. Both Moore and Pachios testified to certain conversations with the owner-operators while the strike was in progress, without mentioning any "threat" of termina- tion. Both further testified that they do not recall or re- member any further conversation with these individuals. Neither of them specifically denied or contradicted the testimony of the owner-operators that they were explicit- ly told that failure to report to work would result in a termination. Although Respondent argues that the testi- mony of the owner-operators was vague and inconsistent with respect to exactly what was said or exactly what date the alleged assertions were made , I do not discredit these versions of the various witnesses . The owner-oper- ators appeared to be sincere, honest, and truthful in their testimony On the other hand, I do not credit either Moore or Pachios. The evidence reveals that the owner- operators were informed by officials of Respondent that they should turn in their keys and Sonitrol cards on Friday, February 19, in order to obtain their last pay- checks. Although the magic words of "You are fired," or "You are discharged," were never used by any of Re- spondent's officials, the order to turn in their keys and Sonitrol cards were similar in nature to the action of the employer in Davis Transport, 169 NLRB 557 (1968), wherein the Board held that the order of the employer to its employees to turn in their equipment was sufficient to constitute a discharge. The statements of the owner- operators that they were required to turn in their keys and Sonitrol cards were never disputed by Respondent's witnesses. Accordingly, I conclude that such order was made. Another factor which convinced me that the discrimi- natory conduct occurred was the failure of Respondent to call upon Pocograno, its dispatcher, to deny the alle- gations concerning his threat of termination of employees should they continue the strike. Respondent valiantly de- fended this action by asserting that Pocograno was not a supervisor within the meaning of the Act, but simply a dispatcher. At the commencement of the hearing, prior to the taking of testimony, Respondent changed its pleading and admitted that Pocograno, along with three other individuals, were supervisors within the meaning of Section 2(11) of the Act, although denying that they were supervisors of the owner-operators who, under Re- spondent's theory, were not employees of Respondent. At the conclusion of the hearing, it appeared that Re- spondent contended, or so I understood, that although Pocograno was a supervisor, he did not have authority to threaten the owner-operators with discharge. Assuming that Respondent continues to maintain that Pocograno is not a supervisor within the meaning of the Act, an analysis of the record revealed that various owner-operators testified that Pocograno was their im- mediate supervisor who instructed them where to report, which packages were to be picked up and delivered, and the order of delivery. The evidence further established that the owner-operators were informed by Vice Presi- dent Andrew Moore, an admitted supervisor of Re- spondent, that Pocograno had the power to hire and fire them. None of this testimony by the owner-operators was disputed by any of Respondent's witnesses. Based on the uncontradicted and credited testimony of the owner- operators, I conclude that Pocograno_ is a supervisor of Respondent within the meaning of Section 2(11) of the Act. In response to the argument of Respondent that al- though Pocograno may have been a supervisor, he had no authority to make any threats of discharge of the owner-operators, it is long settled that once an individual is found to be a supervisor, his actions on behalf of his employer, whether occurring within or without the locale or premises of the employer, are attributed under agency principles to the employer itself 12 Accordingly, based on the undisputed and uncontra- dicted testimony of the owner-operators, I find that Re- spondent, by Pocograno's threats to the drivers with dis- charge for participating in the strike, is in violation of Section 8(a)(1) of the Act, and that said violation further buttresses General Counsel's position that the owner-op- erators were, in fact, discharged by Respondent. I accord no weight to Respondent's argument that it had leases with the drivers which were terminable at will upon 10 days' written notice . Having found the drivers to be permanent employees of Respondent , the cancella- tion of their leases unilaterally by Respondent tends to further support the theory of the General Counsel that the drivers were discharged for their protected concert- ed activities. Additionally, I do not accord any weight to Respond- ent's argument that, inasmuch as 14 specific drivers re- turned to work prior to February 19 without any penal- ty, one must conclude that all the drivers were free to return to work. These employees were on strike, a pro- tected concerted activity. They were threatened by their employer that unless they ceased their protected concert- ed activities they would be discharged. I conclude that 12 Cf NLRB v John Langenbacher Co, 398 F2d 459, enfg 161 NLRB 258 (1966), which held that a supervisor's remarks to employees in a luncheonette, away from the employer's premises, were attributed to the employer ATLANTIC INTERSTATE MESSENGERS 14 of the drivers, fearing that their employer's threats would be carried out, returned to work rather than risk discharge by their employer The remaining drivers, in defiance of the threat, did not return to work. In a recent case i 3 the Board , in a situation involving economic strikers, held that the employer "had the af- firmative duty to tell the employees that they were not being discharged and would continue to be treated as employees until permanently replaced." Having conclud- ed that Respondent did, in fact, discharge the drivers while they were on strike, I am compelled to conclude that it is the obligation of Respondent to initiate steps to rehiring these employees The Board had made this clear in Abilities & Goodwill, 241 NLRB 27 (1979), in which it stated: The issue is whether an unlawfully discharged striker, unlike an unlawfully discharged employee, must unconditionally request reinstatement in order to trigger an employer's backpay obligation. We be- lieve that the equities and policies of the Act compel a negative answer. It is, of course, well set- tled that a discriminatorily discharged employee is entitled to reinstatement and backpay from the date of the employer's unlawful action. There is no re- placement that such employee first request reinstate- ment. Indeed, such a request, in all likelihood, would fall upon deaf ears when one considers that the employer has just fired the employee. In this connection, the Board has frequently said that it will not require a person to perform a futile act. Furthermore, since it is the employer who has acted unlawfully in discharging the employee, the burden is on that employer to undo its unfair labor practice by offering immediate reinstatement to the employ- ee, and by reimbursing the employee for all losses suffered from the date of its discriminatory action. The foregoing rationale is, in our view, equally applicable to employees who are unlawfully dis- charged while engaged in a lawful strike. A dis- charged striker is a discharged employee, and is en- titled to be treated as such, for there is nothing pe- culiar to a strike which justifies dissimilar treatment. The nature of the employer's unlawful conduct is not changed by the fact that the employee happens to be a striker at the time of discharge Further- more, to require a discharged striker to request rein- statement would be no less futile than it would be for a discharged employee Thus, no logical reason presents itself for treating the two categories of em- ployees differently In both cases, the employer had acted in violation of the Act in terminating the em- ployee, and in both cases the burden rightfully rests on the employer to remedy the situation. Accord- ingly, we now hold that a discharged striker is enti- tled to backpay from the date of discharge until the date he or she is offered reinstatement. In summary, I find and conclude that Respondent has violated Section 8(a)(1) of the Act by (a) threatening em- Is Friday Canning Corp, 255 NLRB 327 (1981) 1151 ployees with discharge for having engaged in protected concerted activities; and (b) discharging employees for having engaged in protected concerted activities. CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Theodore Pachios, Harold Pachios, Andrew Moore, and Vincent Pocograno are supervisors within the mean- ing of Section 2(11) of the Act. 3 The owner-operators driving for Respondent are employees within the meaning of Section 2(3) of the Act. 4. The owner-operators who, about February 15, 1982, ceased work concertedly, were engaged in a protected concerted activity within the meaning of Section 7 of, the Act 5. Respondent violated Section 8(a) (1) of the Act by threatening its employees with discharge and thereafter discharged them for having engaged in their protected concerted work stoppage. 14 6 the aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent had engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative actions designed to effectuate the policies of the Act. Having found that the employees named below were discharged for having engaged in a protected concerted work stoppage, and not having thereafter been offered reinstatement, I recommend that Respondent offer them immediate and full reinstatement to their former positions or, if such positions have been abolished or changed in Respondent 's operations , then to any substantially similar position without prejudice to any rights and privileges that they may have, and that Respondent make them whole for any loss of pay that they may have suffered by reason of Respondent 's discriminatory terminations of them, by payment to each of them a sum equal to that which they would have normally earned from February 17, 1982, the date of their terminations, until Respondent offers them reinstatement, less any net earnings for the interim period. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing Co., 139 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). As the unfair labor practices found herein strike at the root of employees' rights safeguarded by the Act, it will be recommended that Respondent cease and desist from infringing in any manner on the rights guaranteed them in Section 7 of the Act In addition, as the record reveals that owner-operators were treated by Respondent as independent contractors, and, therefore, no moneys were paid by Respondent for 14 The names of the employees so discharged are found, infra, in the section entitled "The Remedy " 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coverage of these employees under the Social Security Act, I further order Respondent to make payment to the Social Security Administration on behalf of not only the discharged employees listed below, but also on behalf of all owner-operators from August 26, 1981 , a period 6 months prior to the filing of the charge in the instant case, and shall continue henceforth to make payments. I justify this portion of my Order on the fact that the Social Security Administration cannot maintain its past policy, of payments to recipients due to an increasing shortage of funds, and, thus, by failing to provide for coverage of the owner-drivers, Respondent had deprived the Federal Government of needed revenue to cover payments under the Social Security Act Additionally, at some future date, the owner -operators will receive pay- ments for social security benefits based , in part, on the amount of contributions made on their behalf. The fail- ure of Respondent to provide payments for coverage of these employees deprives them of a benefit to which they are entitled Having found the owner-operators to be employees within the meaning of the Act, I am obli- gated to grant to these employees those benefits to which they would have been entitled had they been treated as employees by Respondent in the first instance. The employees encompassed within this Order are. James Daniels Ulysses Wright Hampton Dais Roy Duggins Willie Brown Nat Brown Clarence Thomas Lawrence Thomasson William Pendleton Willie Doran Allan Hartle Steve Sucher Kent Richardson Fred Altiert Richard Brown David Hulton Walker Williams Carl Marcucio [Recommended Order omitted from publication.)