Cement Transport, Inc.

National Labor Relations Board - Board Decisions

Jan 27, 1967

162 N.L.R.B. 1261 (N.L.R.B. 1967)

CEMENT TRANSPORT, INC. 1261
through no fault of his own but because at the time of the election
lie was away from the plant in the normal course of his duties for
the Employer. Although the Employer may have been remiss in not
advising the Regional Director at an earlier date of the probable
need for other election arrangements, consistent with the aforestated
principle we make no attempt to assess the Employer's responsibility
for the disenfranchisement of Danielson. As his vote could have
affected the election results in this unit of only two eligible voters,
we find, in the circumstances, that the election should have been
resclieduled.3 Accordingly, we hereby sustain the objections in this
regard, and we shall set aside the election and order a new one to be
conducted.
[The Board set aside the election conducted on September 19,
1966.]
[Text of Direction of Second Election omitted from publication.] 4
3 See Bernard Gold and Jack Wa88erman, 54 NLRB 869, 55 NLRB 591.
4 An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 30 within 7 days
after the date of issuance of the Notice of Second Election by the Regional Director. The
Regional Director shall make the list available to all parties to the election . No extension
of time to file this list shall be granted by the Regional Director except in extraordinary
circumstances . Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections are filed . Excelsior Underwear Inc., 156 NLRB 1236.
Cement Transport, Inc.' and General Drivers, Warehousemen &
Helpers Local Union #89, affiliated with International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, Petitioner . Case 9-RC-6856. January 27, 1967
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 ( c) of the National
Labor Relations Act, as amended , a hearing was held before Hear-
ing Officer Edward C. Verst on September 7, 8, and 9, 1966.2 The
Hearing Officer's rulings made at the hearing are free from prejudi-
cial error and are hereby affirmed. Subsequent to the hearing, the
1 The name of the Employer appears as amended at the hearing.
2 The petition , which was filed herein on May 27 , 1966, was dismissed by the Regional
Director on June 17, 1966. Subsequent thereto, the Petitioner filed a Request for Review
of the Regional Director 's decision with the Board. On August 2, 1966, the Board held
that the appeal raised issues which could best be resolved on the basis of a record. Ac-
cordingly , the Regional Director was directed to reinstate the petition and to issue a
notice of hearing in this proceeding . A hearing was held and on September 9, 1966, the
Regional Director , pursuant to Section 102.67 of the Board's Rules and Regulations , trans-
ferred the case to the Board.
162 NLRB No. 117.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner and the Employer filed briefs with the National Labor
Relations Board.3
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
Upon.the entire record in this case, including the briefs filed by
the parties, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act, and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sections
9(c) (1) and 2(6) and (7) of the Act.
4. The Petitioner requests a unit consisting of all single owner-
drivers and nonowner-drivers operating equipment under lease to
the Employer at its plant in Kosmosdale, Kentucky. The Employer
contends that all such persons are either independent contractors or
employees of independent contractors, and that the petition should
therefore be dismissed.
The Employer is a Kentucky ' corporation which operates as a
common carrier within the State of Kentucky under the authority
of the Kentucky Department of Motor Transportation. The
Employer also operates on an interstate basis as a contract carrier, and,
as such, it is subject to the regulation and control of the Interstate
Commerce Commission. It is engaged, primarily, in the business of
hauling cement and mortar to points in Kentucky, Tennessee, Illinois,
Indiana, and Ohio, which are within 180 miles of Kosmosdale,
Kentucky. This transportation is by contract with Kosmos Portland
Cement Company which has a plant in Kosmosdale. A small percent-
age of the Employer's business is hauling salt for the Diamond Crystal
Salt Company at Diamond's terminal in Louisville. All of the Em-
ployer's over-the-road hauling is accomplished with tractors leased
to it by the equipment owners. A separate lease is entered into with
respect to each tractor, regardless of how many tractors the equipment
owner may have leased to the Employer. The Employer leases approxi-
mately 53 tractors from various individuals. The Employer maintains
a shop on its premises which services and maintains the approximately
110 trailers which it owns. These shop employees, who do no work on
the tractors, include mechanics, welders, tire changers, and yardmen.
3 The Employer ' s request that the Board hear oral argument in this case is hereby
denied as the briefs and the transcript of the testimony and exhibits adequately present
all the issues involved herein.
CEMENT TRANSPORT, INC. 1263
They are represented by Local Union No. 370, United Cement, Lime
and Gypsum Workers International Union, and are not sought by
the Petitioner.
The following are the various categories of owners4 and drivers
of equipment utilized by the Employer :
Single Owner-Drivers: These drivers, 22 in number, own and
drive a single tractor unit which they lease to the Employer.
Multiple Owner-Drivers : These drivers, 11 in number, own more
than one tractor which they lease to the Employer. A multiple
owner-driver normally drives one of his own units and his remain-
ing units are operated by nonowner-drivers hired by the multiple
owner-drivers.
Owner-Nondrivers : There are 10 owners of equipment who lease
tractors to the Employer, but who themselves do no driving. The
Petitioner does not seek to include these individuals in the unit.
Nonowner-Drivers: These' drivers, 14 in number, drive leased
equipment for the equipment owners.
The Employer is authorized to operate as an interstate motor
vehicle common carrier under Certificates of Public Convenience and
Necessity granted by the Interstate Commerce Commission. In its
operations, the Employer is subject to the Interstate Commerce Act
and to the regulations promulgated by the ICC. In order to secure
and retain its "certificates," the Employer under these regulations
must show at all times that it is fit, willing, and able properly to
perform its services in conformity with the law. The regulations con-
tain extensive provisions relating to' the qualifications of drivers,
driving of motor vehicles, parts and accessories necessary for safe
operations, reporting of accidents, hours of service of drivers, and
inspection and maintenance of equipment. The regulations further
impose responsibility on the carrier to make certain that the regu-
lations are observed by its drivers. Under the regulations a carrier
is permitted to augment its equipment by means of leases. However,
the regulations require the carrier to have "full direction and control
of such [leased] vehicles" and to be "fully responsible for the opera-
tion thereof, in accordance with applicable law and regulations, as
if the carrier was the owner of such vehicles."
The relationship between the Employer and the equipment owners
and the nonowner-drivers is based on the terms of the "Lease Agree-
ment." The term of the lease is 1 year, subject to termination by
either party upon 30 days' notice. The lease provides that the tractor
',shall be devoted exclusively to the Company's business of transpor-
tation and as much and often as may be reasonably required by such
4 Single owner-drivers and multiple owner-drivers are sometimes referred to herein
collectively as owner-drivers. All owners of leased equipment, i.e , single owner-drivers,
multiple owner-drivers, and owner-nondrivers are referred to herein as equipment owners.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business," and that it shall be operated "under direct supervision
and control" of the Employer. The lease also requires that the trac-
tors meet the requirements of the ICC Rules and Regulations and
those of State and Federal laws.
Under the lease, the equipment owner is further obligated to fur-
nish for the tractor a "full complement of competent drivers"; to
pay such drivers "compensations of every character," to withhold
taxes and social security, to cover them with respect to workmen's
compensation and "charges, benefits, claims, and liabilities of every
kind" arising from the relationship ; to pay all expenses of the oper-
ation of the tractor; to provide identification signs on the tractor,
disclosing the Employer's name, certificate number, and address, and
such State Commission stickers as may be required; to maintain
logs, one copy of which is to be delivered to the Employer; and to
limit the driver in the number of hours of work during any 24-hour
period. The equipment owner receives payment from the Employer
for the loads carried pursuant to a schedule attached to the lease,
payment being based on the amount of freight carried and the mile-
age covered according to zones.
The drivers report to the Employer's dispatcher for the various
hauls. They "sign in" when they desire to make a haul. While there
is nothing in the lease agreement relating to discipline of the owners
or their drivers, there is a rule in effect that if a driver "signs in"
but refuses to take a load, he will not be permitted to drive for the
Employer for a period of 3 days. The equipment owners hire their
own drivers, but the drivers are required to submit an application
for employment to the Employer. A report of vehicle inspection of
the leased tractors is made monthly by the Employer's safety clerk,
as required by ICC regulations. Tractor maintenance is the responsi-
bility of the equipment owner, and a maintenance report is sub-
mitted to the Employer weekly on a form supplied by the Employer.
The bills of lading supplied to the drivers contain instructions as to
date, time, and place of delivery. The Employer provides fuel facili-
ties at the plant for the benefit of the drivers, and furnishes the fuel
on a credit basis, deducting the amount thereof from the pay check,
which is issued weekly. It also pays for and keeps in force public
liability insurance and property damage insurance.
Petitioner, relying particularly on the Board's recent decision in
Indiana Refrigerator Lines, Inc.,5 contends that the single owner-
drivers and the nonowner-drivers are employees of the Employer
within the meaning of the Act.6 The Employer contends that such
5 157 NLRB 539.
6 The Petitioner's uncontested position as regards the multiple owner-drivers is that the
Board's finding in Indiana Refrigerator Lanes is controlling here, and that these individuals
are supervisors within the meaning of the Act.
CEMENT TRANSPORT, INC. 1265
drivers are either independent contractors or employees of inde-
pendent contractors. It takes the position that Indiana Refrigerator,
Lines is inapplicable because it is distinguishable on the facts. For
the reasons discussed hereinafter, we agree with the Petitioner's
position.
In making determinations as to whether an individual is an inde-
pendent contractor or employee, the, Board has frequently stated
that it will apply the common law right-of-control test. Under this
test, the employer-employee relationship exists when the employer
reserves the right to control not only the ends to be achieved, but
also the means to be used in reaching such ends. The Board has made
it clear that the application of the test is not a "perfunctory exer-
cise" but demands a balancing of all the evidence relevant to the
relationship.'
There are, admittedly, a number of factors which would appear
to militate in favor of a finding that the equipment owners are inde-
pendent contractors. Thus, for example, the leases provide that the
equipment owners shall pay the compensation of the nonowner-
drivers; the owners bear the cost of operation of the tractors; the
owners are responsible for making payroll deductions on behalf of
the nonowner-drivers for social security, income taxes, and unem-
ployment compensation; and the Employer permits the drivers dis-
cretion in the selection of routes.
We find, however, that these factors are outweighed by others
which establish extensive Employer control over the drivers and
require the conclusion that they are employees of the Employer. We
rely particularly on the following: (1) The overall effect of the ICC
regulations, requiring comprehensive Employer control over the
operations of the equipment owners, the drivers, and the leased
equipment; (2) the leases providing for the Employer's exclusive
use of the leased equipment, requiring the equipment owners to per-
form all the work which the Employer may require, and giving the
Employer control over the hauling operations; (3) the right of
either party to terminate the leases without cause on 30 days notice;
(4) the fact that payments made to the equipment owners for haul-
ing the Employer's freight are unilaterally set by the Employer;
(5) the fact that the drivers are required to submit a maintenance
report and a drivers' log to the Employer; (6) the fact that each
tractor is required to exhibit the Employer's name and identification
number; (7) the fact that if a driver "signs in" but refuses to take
a load, he is disciplined. by not being allowed to drive for the
7 National Freight, Inc., Federal Freight, Inc., and Sun Transportation, Inc., 153
NLRB 1536, 1538-39.
264-04767-vol. 162-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer for a period of 3 days; and (8) the fact that once the
driver "signs in" he is bound by the bill of lading furnished to him
by the Employer as to the date, time, and place of delivery.8
It is true, as the Employer points out, that the equipment owners
have some opportunity to increase their profits .9 Thus, for example,
the owner may save money on the purchase of the tractor and mini-
mize maintenance costs; he may haul such items as tobacco and fer-
tilizer for other trucking companies when the Employer's business
is slack; and he may engage in other business activity on his own
behalf. But, as we have known, the Employer unilaterally sets the
amounts the equipment owners receive from the Employer for haul-
ing the Employer's freight. The fact that the owners may earn
additional money through other business activity, although a factor
to be considered, does not preclude an employee relationship with
the Employer.10
In view of the foregoing, and on the basis of the entire record,
we find that the single owner-drivers and the nonowner-drivers are
employees of the Employer within the meaning of the Act 11
Although we also find that the multiple owner-drivers are not
independent contractors, we conclude that they are supervisors
within the meaning of the Act. The record shows that the multiple
owner-drivers, as in Indiana Refrigerator Lines, supra, hire, fire,
discipline, assign, transfer, and otherwise responsibly direct the
drivers of their equipment. Further, it is apparent that this author-
ity is exercised not only for the purpose of protecting the owner's
equipment, but also in the interest of the Employer and as an inte-
gral part of the Employer's operations. We shall therefore exclude
them from the unit.12
Accordingly, and as the Petitioner does not seek to represent the
owner-nondrivers and no other issues have been presented concern-
ing the scope of the unit, we find that the following employees con-
8 Indiana Refrigerator Lines, supra, and cases there cited in footnote 3.
9 Smith's Van & Transport Company, Inc., and Smith 's Transfer and Storage Company,
Inc., 126 NLRB 1059.
10 See Indiana Refrigerator Lanes, Inc., supra.
"We find no merit in the Employer 's contention that the Board is foreclosed from
deciding here that the drivers of leased equipment are employees , in view of the decision
in Cement Transport, Inc., 111 NLRB 175. In that proceeding , which involved the same
parties and the same plant as here, the Board held that the equipment owners were in-
dependent contractors . The Board has held that a prior determination as to the appropriate
bargaining unit does not preclude a redetermination of the unit appropriate for the em-
ployees when a later petition is filed. Thaihimer Brothers , Incorporated, 93 NLRB 726,
727. The earlier decision, in our opinion , took an unduly limited view of certain aspects of
the relationship between the Employer and the drivers of leased equipment , particularly
as to the impact of the ICC regulations on the extent of the Employer 's control over them.
In view of the totality of the facts here, particularly in the light of the recent decision
in the Indiana Refrigerator Lines case, supra, we conclude that these drivers are employees.
12 For the reasons set forth in Indiana Refrigerator Lines, supra , footnote 5, Member
Brown would find that the multiple owner-drivers are not supervisors . However, he notes
that the Union has not sought their inclusion in the unit herein.
NORTH AMERICAN AVIATION, INC. 1267
stitute an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act : All single owner-
drivers and nonowner-drivers employed by the Employer at its
plant located at Kosmosdale, Kentucky, but excluding all office
clerical employees, guards, professional employees, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]13
is An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employer with the Regional Director for Region 9 within 7 days after
the date of this Decision and Direction of Election . The Regional Director shall make
the list available to all parties to the election . No extension of time to file this list shall
be granted by the Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election whenever
proper objections are filed . Excelsior Underwear Inc. and Saluda Knitting Inc., 156
NLRB 1236.
North American Aviation , Inc. and International Union, United
Welders of America, Independent , Petitioner. Case 16-RC-
3973. January 27,1967
DECISION ON REVIEW AND ORDER
On October 18, 1965, the Regional Director for Region 16 issued
his Decision and Direction of Election in the above-entitled proceed-
ing.' Thereafter, in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series .8, as amended,
the Employer and the Intervenor respectively filed timely requests
for review of the Regional Director's Decision, on the ground, inter
alia, that substantial questions of fact and law were raised by the
Regional Director's direction of a craft-severance election. There-
after, Petitioner filed a statement in opposition to the requests for
review. The Board, by order dated December 9, 1965, granted review
and stayed the election. Subsequently, the Employer filed a supple-
mental brief.
The Board has considered the entire record in this case with
respect to the Regional Director's determination under review, and
finds, contrary to the Regional Director, and for the reasons herein-
after stated, that the petition should be dismissed since it seeks a
group of employees which, in the circumstances, does not constitute
a unit appropriate for a craft-severance election.
The Employer is engaged in manufacture, research, and design
activities at its aerospace plants throughout the United States. The
' At the hearing which preceded the Regional Director 's Decision , the International
Union, United Automobile , Aerospace & Agricultural Implement Workers of America, and
its Local 952, referred to herein as Intervenor , was permitted to intervene on the basis
of its current contract covering the Employer 's production and maintenance employees.
162 NLRB No. 111.