Bob, Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1956

116 N.L.R.B. 1931 (N.L.R.B. 1956)

BOB, INC. 1931
tioner with the decertification forms and then counseled the Petitioner
as to how to prepare the petition. Additionally, the Employer per-
mitted the Petitioner to avail himself of the services of the Employer's
typist on company time in order that the petition might be prepared.
In view of the foregoing, and the entire record in this proceeding, we
are convinced that the Employer improperly assisted the,Petitioner in
filing the decertification petition and that the rights of the employees
to file decertification petitions fonder Section 9 (c) (1) (A) have been
thereby abridged.3 Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
MEMBER BEAN, dissenting
I dissent from the majority's refusal to grant the employees' request
for an election in this case because I am not satisfied, on the facts, that
the Employer was responsible for their petition. Shorn of verbiage,
the facts are that the Employer's representative correctly replied to
factual inquiries and, apparently on request, furnished a blank Board
petition form (the employees live about 200 miles from our nearest
Regional Office), and the Employer permitted an office clerk to assist
the employees prepare their- formal papers to the Board. With the
record also showing affirmatively that the entire decertification move-
ment was born in the minds of the employees, there remains nothing
to indicate that the Employer suggested or encouraged this proceeding,
much less that it "instigated and fostered" it, as the majority finds.
Because I agree that Section 9 (c) (1) (A) expressly provides a remedy
for emptoryees, I would not deprive them of that right. Instead, as
the Intervenor's current contract is in any event about to expire, I
would direct an election.
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
See Gold Bond, Inc., 107 NLRB 1050.
Bob, Inc.' and Chauffeurs, Teamsters & Helpers Union Local
371, affiliated with International Brotherhood of 'Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL-CIO,
Petitioner. Case No. 13-RCL5153. December 27, 1956
DECISION AND ORDER
Upon a petition. duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William Boetticher, hearing
2 The Employer's name appears as amended at the hearing.
116 NLRB No. 280.
1932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9,
(c) (1) and Section 2 (6) and (7) of the Act, for the following reasons :
The Petitioner seeks a unit of 22 leased-truck drivers at the Em-
ployer's establishment in Charles City, Iowa. The Employer con-
tends that the petition should be dismissed on the ground that the
leased-truck drivers are independent contractors and not employees
of the Employer.
The Employer is exclusively engaged in leasing tractors and trailers
to interstate trucking concerns. It owns the trailers which it leases
to these firms but it has not purchased and does not operate in its own
name any tractors. The tractors which the Employer leases to the
interstate trucking companies are in turn procured under a lease
arrangement between the Employer and the 22 drivers whom the
Petitioner here seeks. Some of the drivers have purchased and now
fully own their tractors. The remaining drivers are purchasing their
tractors -under a conditional sales agreement with the Employer.
Financing for these purchases is provided through the Employer only
when the driver is unable to obtain such financing elsewhere.
- As compensation for their tractors and services, the drivers receive
65 percent of the gross revenues received by the Employer for jobs
which the drivers perform for interstate trucking concerns. All
licensing taxes, permit fees,,and collision insurance are paid by the,
drivers. Moreover, the drivers pay for all operating and maintenance,
expenses involving their tractors. Drivers hire and pay their substi-
tutes from their own funds. The drivers participate in the Employer's
b oup hospitalization program on an optional basis and in the event
that they choose to participate the drivers make the entire contribu-
tion to the fund. The drivers receive no paid vacations from the Em-
ployer and arrange their vacation schedules to suit their convenience.
In the course of its normal business operations, the Employer re-
ceives requests form various interstate trucking concerns to supply
tractors and trailers. A lease agreement is then executed between
the Employer and the trucking -firms. Assignment of drivers to per-
form the hauling work for the trucking firms is determined by a rota-
tion list, which is prepared and maintained by the drivers. When
a lease between the Employer and a trucking concern has been ex-
ecuted, the driver assigned to the job is dispatched from the Em-
THOMPSON WIRE COMPANY 1933
ployer's terminal, at which point the direction and control of the
.driver and the tractor comes under the leasing trucking company.
The drivers select their own routes and determine their own schedules.
The tractors bear the insignia of the trucking firm. Cargo and public
liability insurance is carried by the trucking company. When an as-
signment is concluded, the driver returns his tractor to the Employer's
terminal to await further assignments. When the opportunity pre-
sents itself, the driver may obtain a hauling job through his own
efforts after the termination of his assignment to a trucking concern
and thus be able to return to the Employer's Charles City,terminal
with a payload.
The Board has frequently held that the determination of whether an
individual is an independent contractor or an employee within the
meaning of the Act requires th9 application of the common law "right-
of-control" test.. Under this test, an employer-employee relationship
is said to exist where the person for whom the services in question are
performed reserves the right to control not only the end to be achieved
but also the means to be used in reaching such end 2
'Applying this test to the facts of the instant case, we find that the
leased-truck drivers whom the Petitioner. here seeks to represent are
independent contractors rather than employees with respect to the
Employers Accordingly, we shall dismiss the instant petition.
[The Board dismissed the petition.]
2 See, e. g., Oklahoma Trailer Convoy , Inc, 99 NLRB 1019, 1022.
3 Ibid.
Thompson Wire Company and Steel , Metal and Alloy Fabri-
cators, Warehousemen and Handlers and Scrap Iron Workers
Union, Local 714, I. B. T., AFL-CIO, Petitioner . Case No.
13-R(,-5001. December 27, 1956
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Richard B. Simon, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent employees
of the Employer.
3. The Employer is engaged in the manufacture of cold rolled
steel at its plant at Chicago, Illinois. The Petitioner seeks a produc-
116 NLRB No. 278.