Central Transport, Inc. And Cc South As Joint Employers

National Labor Relations Board - Board Decisions

Jul 13, 1990

299 N.L.R.B. 5 (N.L.R.B. 1990)

CENTRAL TRANSPORT

5
Central Transport, Inc. and CC South as Joint Em-
ployers and Teamsters Local 41, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO. Case 17-CA-14503
July 13, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On January 31, 1990, Administrative Law Judge
Marvin Roth issued the attached decision , The
General Counsel and the Union filed exceptions
and briefs, and the Respondents filed a brief in re-
sponse
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
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,' and
conclusions, 2 and to adopt the recommended
Order
The General Counsel and the Union have excepted to some of the
Judge's credibility findings The Board's established policy is not to over-
rule an administrative law Judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d
362 (3d Car 1951) We have carefully examined the record and find no
basis for reversing the findings
2 In his decision, the Judge states that "the Board has no special exper-
tise" in determining whether an independent contractor relationship
exists, and charges the Board with "shifting and sometimes inconsistent
or irreconcilable results" in decisions in this area Contrary to the Judge's
statement, although the Board applies the same common law standards
that a court would apply in determining whether individuals are employ-
ees or independent contractors and, to that extent, lacks a special claim to
expertise (see NLRB v United Insurance Ca, 390 U S 254, 256, 260
(1968)), each case Involves a fact-Intensive inquiry of a kind that the
Board has been continually engaged in for more than 55 years Since
there is no accepted bright-line test in this area, it is not surprising that
differences of opinion may arise on close cases and that courts may some-
times disagree with the Board We do not believe such differences fairly
indicate any fundamental inconsistencies in the Board's approach or de-
tract from its experience-based expertise as a factfinder in this area
We also disagree with the Judge's suggestion that Ida Cal Freight Lines,
289 NLRB 924 (1988), on which he partly relied in finding independent
contractor status in the instant case, is incompatible with Roadway Pack-
age System, 288 NLRB 196 (1988), enfd on other grounds, 902 F 2d 34
(6th Or 1990) Nor do we regard the holding that the drivers in Road-
way Package were employees as inconsistent with our finding that the
drivers here are Independent contractors We note that unlike the drivers
in Roadway, drivers in the Instant case purchase or lease their tractors
through sources other than the Respondent, and there is no evidence that
the drivers are released from financial obligations for their tractors when
their relationship with the Respondent ends, as happened in two instances
in Roadway Further, in Roadway, the employer provided drivers with
names of replacement drivers to cover for them in their absence, required
drivers to wear uniforms they had to purchase, terminated drivers for
lateness and failure to report for work, and had in place a grievance-type
procedure for drivers In contrast, the drivers in the instant case must
find their own replacements, do not wear uniforms, have not been disci-
plined even Informally, and have no grievance or complaint procedure
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
David A Nixon, Esq , for the General Counsel
Timothy K Carroll, Esq , of Detroit, Michigan, for the
Respondents
John P Hurley, Esg , of Kansas City, Missouri, for the
Charging Party
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge This case
was heard at Mission, Kansas, on October 30 and 31 and
November 1, 1989 The charge was filed on June 15 by
Teamsters Local 41, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO (the Union) The com-
plaint, which issued on July 28 and was amended at the
hearing, alleges that Central Transport, Inc and CC
South as joint employers (respectively Transport and
South and collectively the Company or Respondents)
violated Section 8(a)(1) and (3) of the National Labor
Relations Act The gravamen of the complaint is that the
Company allegedly engaged in unlawful interrogation
and threats of reprisal, and terminated its employees
Everet Bryant, Bradley Smallwood, Christopher
McGuire, and Gregory Callahan because of their union
and concerted activities The Company's answer denies
the commission of the alleged unfair labor practices The
principal issues are whether the alleged discrimmatees
were independent contractors or employees of independ-
ent contractors and, if not, whether they or any of them
were company supervisors All parties were afforded full
opportunity to participate, to present relevant evidence,
to argue orally, and to file briefs General Counsel, the
Union, and the Company each filed a brief
On the entire record in this case2. and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the briefs and arguments of the parties, I make
the following
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Transport, a Michigan corporation wholly owned by
Centra, Inc, a Michigan corporation, is engaged in the
over-the-road delivery of freight In the operation of its
business Transport annually performs services valued in
excess of $50,000 in the delivery of freight directly
across state lines South, a Michigan corporation wholly
owned by Centra, Inc, is engaged in the local pickup
and delivery of freight, with an office and place of busi-
ness in Kansas City, Missouri In the operation of its
business, South annually performs services valued in
All dates are for 1989 unless otherwise indicated
2 Errors in the transcript have been noted and corrected
299 NLRB No 4
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
excess of $50,000 for customers located outside of Mis-
souri It is undisputed, and I so find, that Transport and
South are each employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act The par-
ties have stipulated, for the purpose of this proceeding
only, that in the event that the alleged discrimmatees are
found to be employees within the of the Act, Transport
and South are a joint employer
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Company's Operations, and Evidence
Pertaining to Status of the Alleged Discruninatees
As indicated, Transport is engaged in over the road
delivery of freight South provides local pickup and de-
livery service for Transport, usually in metropolitan
areas In 1985 South commenced operations at its Kansas
City terminal South Regional Manager Terry Weisman
has overall responsibility for South's operations in Mis-
souri, Oklahoma, Arkansas, and Texas Dennis Kessmger
is the Kansas City terminal manager and reports to Weis-
man Joe Bowman was until recently operations manager
at Kansas City, functioning as a dispatcher South chose
to conduct its operations through owner-operators of
tractors, whom it regards as independent contractors
Weisman testified that South chose this method of oper-
ation because South is a service operation and does not
wish to make a heavy investment in equipment Appli-
cants wishing to provide driving services are presented
with a form "non-exclusive operating agreement with in-
dependent contractor," between South and the owner-
operator The form agreement is presented on a take-it
or leave-it basis, i e, there is no negotiation as to terms
One form agreement is executed for each tractor Some
agreements indicate that they are effective until canceled
Others indicate that they are effective for a 1-year term,
renewable yearly Each agreement provides in sum as
follows (1) The "Contractor" (i e, owner-operator) is an
independent contractor and not an employee, receives no
employee benefits, and is responsible for payment of all
fees and taxes required by law, (2) the contractor shall
not engage in any business which conflicts with the
Company's interests or the contractor's contractual obli-
gations, (3) the contractor shall provide pickup and de-
livery service on a nonexclusive basis, in accordance
with the Company's instructions, (4) the contractor has
the sole right to hire and terminate and to direct its em-
ployees, except as to ultimate delivery However the
contractor will replace any driver to whom the Compa-
ny objects as not being competent or careful, (5) the con-
tractor will furnish a performance bond, (6) the Compa-
ny has the right to terminate the agreement at any time
and for any reason, (7) the contractor will provide insur-
ance, (8) compensation to the contractor is based on
mileage (53 cents per mile) plus tonnage per stop (based
on a schedule of rates for cargo loaded or unloaded)
There is also incentive pay in the form of additional pay-
ment for pickups after the contractor has earned $850 in
pickup and delivery revenue in a week The contractor
also receives a "king pin" rate of $13 for dropping or
hooking a trailer without loading or unloading The
Company also compensates the contractor for attempted
pickups, (9) the contractor rents a two-way radio from
the Company, (10) the Company provides trailers, (11)
the contractor receives a guaranteed income of $900 per
week for the initial 13-week period, or for a 6-week
period if his rate is changed, until the contractor attains
gross revenue of $900 for 3 consecutive weeks (Driver
and tractor must be available for work to qualify for the
guarantee), (12) the contractor guarantees that a driver
and tractor will be available, and that the owner is the
principal driver, and (13) the contractor is required to
maintain records of pickups and deliveries on company
forms
The form agreements only partially reflect the actual
relationship between the "contractor" and the Company
(unless otherwise indicated, the individuals whose status
is in dispute in this proceeding shall be referred to as
drivers) Those drivers who signed form agreements do
in fact own or lease the tractors which they use in the
Company's operations Drivers may obtain financing or
lease a tractor from Equip-Lease, a company subsidiary
Bradley Smallwood owned one tractor which he pur-
chased through Equip-Lease Financing Greg Callahan
purchased a tractor which he financed on his own
through a bank Everet Bryant owned up to five tractors
(the number varying from time to time) two of which
were under contract to the Company Chris McGuire,
the fourth alleged discrimmatee, falls into a different cat-
egory McGuire did not own or lease a tractor and was
not signatory to any agreement with the Company In
February 1988 Everet Bryant hired McGuire to drive
one of Bryant's trucks under contract to the Company
Bryant determined McGuire's rate of compensation
Bryant initially paid McGuire $350 per week, and subse-
quently gave him a raise to $375 Bryant also agreed to
pay McGuire 30 percent of his earnings above $900 per
week Bryant withheld Federal and state income tax and
social security contribution from McGutre's paychecks
McGuire's W-2 form for 1988 designated Everet Bryant
Trucking as his employer A tractor usually cost be-
tween $12,000 and $20,000 The Company preferred, but
did not require, the driver-owners to use a single-axle
tractor, because they were more economical In fact the
drivers used various types of tractors The Company re-
quired that the tractors display a company decal when
operating in its service, but otherwise there was no uni-
form color or design There was no dress code for driv-
ers The driver-owners paid their own expenses (cost of
truck, fuel, repairs, maintenance, license, performance
highway bond, use tax, insurance, and tires) They could
if they wished arrange through Equip-Lease to deduct
payments for insurance premiums and use tax from their
company paychecks (The Company paid the driver-
owners on a weekly basis ) There was no other with-
holding from company payments Driver-owners made
their own income tax payments and social security con-
tributions and filed tax returns as self-employed persons
They were responsible for maintaining their own trac-
CENTRAL TRANSPORT 7
tors They were also responsible for providing a replace-
ment driver or tractor, at their own expense, when they
or their tractor were unavailable The Company set the
rates paid by its customers, and the dnvers had no say in
this matter (ICC regulations set only maximum rates for
local pickup and delivery of freight ) Regional Manager
Weisman testified in sum that the drivers could control
their costs by proper maintenance and efficient schedul-
ing of their stops As indicated, the drivers were respon-
sible for tractor maintenance The extent to which they
controlled their scheduling will be discussed at later
points in this decision
Considerable testimony was adduced on the interrelat-
ed matters of working hours, accountability, and restric-
tions on outside work Each driver was required to and
did fill out and turn in to the Company a daily settlement
worksheet These worksheets purported to indicate
among other information times in and out of the Compa-
ny's terminal, each stop and the time in and out of the
stop, weight load for each stop, the appropriate payment
formula for each stop, and total mileage The worksheets
constituted the basis for calculating the driver-owner's
pay The worksheets introduced in evidence reflected
daily starting times which ranged from 7 15 to 10 a m,
but usually ranged from 7 15 to 8 a m Bradley Small-
wood testified that Operations Manager Bowman deter-
mined his starting and quitting times, and that Small-
wood normally reported for work at 7 30 a m Small-
wood testified at one point that he entered only the times
he left the terminal on his worksheet, and at another
point that he Just wrote in any time and that the work-
sheets generally were not accurate Smallwood's work-
sheets are inconsistent with his testimony The work-
sheets indicate both times in and out, and the columns of
times in and out show a precision which indicates that
the driver sought to be accurate within a 5-minute span
Smallwood further testified that he usually called into
the terminal at intervals of 60 to 90 minutes According
to Smallwood, in the summer of 1986 Bowman repri-
manded him when he called in after taking lunch, be-
cause he did not call in earlier Smallwood testified that
shortly thereafter at a meeting of drivers, Terminal Man-
ager Kessmger told them they had to call in before lunch
and leave a phone number where they could be reached
At the time the tractors were not equipped with compa-
ny two-way radios Smallwood further testified that in
February 1988, by which time the tractors were
equipped with radios, he completed taking some loads to
the General Motors Leeds plant by 1 30 p m, was unable
to contact Bowman, and proceeded to lunch After
Smallwood returned to the terminal, Bowman demanded
to know what he was doing However Smallwood's nar-
rative of the incident indicated that Bowman was not
upset because Smallwood failed to call in before taking
lunch, but because Smallwood allegedly called him an
unprintable name Smallwood further testified that in the
spring of 1987 Kessmger told the drivers that they had
to run railway trailers from the piggyback terminal, and
they would alternate weekends doing this work The
drivers were reluctant, because this was kingpin work
and therefore not particularly remunerative They began
doing the work by rotation, but eventually Everet
Bryant took all the work Smallwood also testified that
one Saturday in September 1986 he hauled a load of fur-
niture for a private individual, using his tractor and a
company trailer The following Monday Kessinger asked
him why he hauled the trailer Smallwood answered that
he was testing his tractor, and Kessmger responded that
he preferred that Smallwood didn't Smallwood testified
that this was the only time that he used his tractor for
outside work In view of the fact that Smallwood was
using a company trailer without authorization, the inci-
dent has no bearing on the question of employee status
Smallwood admitted that the Company never told him
that he could not use his tractor for outside work
Everet Bryant testified that when he began hauling for
the Company (December 1985), Kessmger told him he
would start work about 7 30 a m, finish about 4 30 to 5
p m, and be available on Saturdays Bryant testified that
after about 3 weeks he began coming in at 4 to 4 30 a m
to unload inbound trailers At that time the Company did
not have a dock contractor, and the drivers performed
dockwork for which they were paid an hourly wage In
September 1986 the Company retained Jerry Kerr as
dock contractor Kerr performs the dockwork with his
own employees, and the drivers no longer do this work
Bryant testified that since that time he usually arrived at
the terminal between 6 30 and 7 a m (before other driv-
ers), checked if his trailer was ready, and if it was
loaded, he would leave between 7 30 and 8 a m Bryant
testified that when he began work Kessmger told him
that he was showing too many hours on his timesheet,
and he need not indicate the exact starting and ending
times Smallwood testified that he was not told what to
enter on the sheet As indicated, after 1986 the drivers
did not receive any hourly wage There is no legal re-
striction on the number of hours a driver may work in
local pickup and delivery Bryant testified that dispatch-
er Bowman would call him in when he was finished for
the day, and would then tell him when he should come
in the next morning Bryant testified that when he began
hauling for the Company, Bowman told him he could
not stop for lunch without calling in and giving a phone
number, and could not take lunch if they were too busy
Bryant testified that in the summer of 1986 he heard
Kessmger reprimand Smallwood for taking lunch with-
out calling Bryant further testified that Kessmger repeat-
edly complained that Bryant did not call in often
enough Therefore Bryant called in hourly, although this
was expensive After the Company installed radios in the
tractors (winter of 1985-1986), Bryant, in accordance
with Kessmger's instructions, continued to call in hourly
Kessmger said this was necessary to notify the drivers of
pickups and changes in deliveries Bryant would notify
the dispatcher of his location and progress Bryant testi-
fied that Kessmger and Bowman continued to complain
if they could not reach him or if he did not call in
hourly Bryant and Chris McGuire testified that occa-
sionally, after leaving the terminal in the morning, the
drivers would meet for breakfast before proceedmg on
their routes As indicated, Bryant at times owned more
than the two tractors under contract to the Company
Bryant testified that in 1988 he had four tractors, two of
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which were under contract to another trucking firm,
Consolidated Transfer and Warehouse (CTW) Bryant
further testified that he also used his tractors to haul for
other firms and individuals, including trucking firms, and
that he sometimes did the dnving, including for Over-
nite, a trucking firm Bryant initially testified that he per-
sonally did not haul for other customers during Compa-
ny working hours, but subsequently admitted that he
may have hauled one or two such loads when work was
slow In light of Bryant's testimony, it is evident that the
Company did not prohibit its driver-owners from using
hired dnvers to haul for other firms, including competi-
tors, with tractors not under contract to the Company
With regard to tractors under company contract, Bryant
testified that when he began hauling for the Company
Kessmger told him he could do outside work if the Com-
pany had no other work and the outside work did not
interfere with the company work Bryant testified as to
several mstances when Kessmger told him or other dnv-
ers not to perform certain outside work Bryant testified
concerning the incident involving Smallwood, previously
discussed Bryant also testified concerning an incident in
1986 involving driver-owner David Moore Bryant testi-
fied that at a meeting of drivers, Kessmger said that
Moore was observed pulling a railway container, and he
could not do this Moore said he had no other work, and
was told he could do outside work Kessmger responded
that he could not do outside work during business hours
Moore, a General Counsel witness, hauled for the Com-
pany as driver-owner from about June 1984 to July 1986
Moore testified with regard to the incident, that on 2
successive days, for about 2 hours in the early afternoon,
he hauled a trailer for Container Pool While doing this
he left the Company's trailer parked on Container Pool's
yard Moore testified that Kessmger said he did not want
Moore doing outside work during the day, or he would
terminate Moore's contract because Moore was obligated
to work for the Company Bryant testified that on one
occasion Kessmger told him that the Missouri state
police reported that he was hauling trailer homes and
boats on the weekend, and he should quit doing this
Bryant testified at one point that he used company trail-
ers, and at another that he used trailers owned by the
boat owners Bryant admitted that he did not have a re-
quired intrastate permit to do such hauling Bryant also
testified that shortly after the incident involving Moore,
Kessmger told him to stop doing outside work at night
because other drivers wanted to do outside work during
business hours At the time Bryant was hauling railway
containers for Container Pool On the face of General
Counsel's witnesses' testimony, this was the only incident
described by Bryant which did not involve unauthonzed
use of company trailers or misuse of trailers Chris
McGuire testified that he worked Monday through
Friday and on weekends when requested, usually from
7 30 a m to 5 pm unless told differently by Kessmger
or Bowman McGuire testified that Bowman told him
several times that if he did not like working late or the
runs given him, the Company could cancel Bryant's con-
tract Greg Callahan testified that when he began hauling
for the Company (October 1986), Kessinger told him the
hours would be about 7 30 a m to 430 p m, Monday
through Friday, but there would be no set hours
Bowman told him to call in after each stop The Compa-
ny never told him whether he could do outside work
Callahan did not use his tractor for outside work How-
ever he used his father as his driver replacement, and
also to do runs for the Company at night Callahan testi-
fied that the Company offered him railway runs on
weekends, but he turned them down because he and his
father preferred to work evenings during the week The
other drivers took turns handling the railway loads, leav-
ing the Callahans to handle the evening runs Callahan's
testimony with regard to this matter is at least partially
inconsistent with that of Bradley Smallwood However
when their testimony is viewed together, it is evident
that while the Company expected this work to be done,
the drivers were given considerable leeway to decide
who did the work Eventually the matter was resolved
in a mutually satisfactory manner, with Callahan left free
to take the evening work, and Bryant, who wanted all
the work he could get, and had two tractors to do it,
talung the weekend railway runs David Moore testified
that Kessmger or Bowman told him his startmg times,
which ranged from 6 to 8 a m, and when he was fin-
ished (not before 4 pm) If Moore began at 8 a m he
would have to load in the evening Moore testified that
lunchbreaks were at his discretion, unless there was a
"hot load," but had to be reasonable, and he had to
report when taking lunch Moore testified that about
July 1986 he hired another dnver to operate his tractor
while Moore hauled freight for a competitor of the Com-
pany Moore testified that Kessmger told him he was ob-
served working for someone else, and if he didn't come
back and drive his tractor the Company would give his
freight to other drivers and let Moore's driver sit Moore
terminated his driver As indicated, the driver-company
operating agreement requires that the signatory driver be
the principal dnver of the tractor
Joe Bowman is no longer employed by the Company,
and the Company did not call him as a witness Terminal
Manager Kessmger was the Company's principal witness
Kessinger testified in sum as follows Starting and finish-
ing times for drivers depended on normal operating
hours of the Company's customers and their priorities If
there were no special needs, the Company expected the
drivers between 7 30 and 8 a m Normal customer hours
for shipping and receiving were between 8 a m and 5
p m The Company required the drivers to be available
on customer request dunng the normal workday, i e
from about 8 a m to 4 p m Company work had pnonty
After the drivers completed their work, they were free
to do what they wanted on evenings and weekends Kes-
singer admitted that these requirements effectively pre-
cluded the drivers from hauling for others during regular
shipping hours With regard to David Moore, Kessmger
testified that Moore was observed picking up trailers
during daylight hours Kessmger objected because (1) he
was not then able to contact Moore, and (2) he left com-
pany equipment unguarded Kessmger further testified
that in 1986 Moore was driving for Bowman Transporta-
tion, a competitor of the Company, which would be a
violation of their agreement The drivers were required
CENTRAL TRANSPORT
9
to call in or maintain radio contact Customers called
about shipments, wanting to know when they were
coming, and the Company had to keep the driver in-
formed Greg Callahan was required to keep in radio
contact more often than other drivers The Company
maintained a computer link with the General Motors
Fairfax plant, which was on Callahan's route This link
required constant updating of information on the status
of loads The Company would from time to time contact
drivers on the road to determine their location Certain
days were busier than others Tuesdays and Wednesdays
were usually the slowest days The drivers had to be
available to meet customer requests If this requirement
was met, there was no restriction on the driver's person-
al activity When a driver chose to take off, whether for
vacation or other reasons, he had to have a replaCement
driver available A driver could take off to operate an-
other tractor Sometimes another driver-owner would
cover for the driver Dock contractor Kerr, who was
presented as a company witness, testified that since May
1989 he has also hauled for the Company as a driver-
owner (he now uses a hired driver) Kerr testified that as
a driver-owner he received messages from dispatch, but
was not required to check in or notify the Company
when he was taking lunch With regard to the settlement
sheets, Regional Manager Weisman testified that the time
entries were solely for the purpose of protection in the
event of customer complaints The sheets contain spaces
for entry of notation of evaluation of the dnvers, includ-
ing productivity, need for improvement, need for greater
sales effort, and recommendations However no evidence
was introduced to indicate that these spaces were ever
used In the absence of evidence to indicate that the time
entries served any other purpose, I credit Weisman's tes-
timony in this regard Weisman also testified that since
1987 or 1988, the settlement sheet information serves as a
backup for driver invoices, which the drivers submit
weekly, and which simply purport to constitute bills for
moneys owed to the drivers
In order to resolve certain conflicting testimony con-
cerning the extent of company control over the drivers,
including availability for weekend work, it is necessary
to consider the contractual guarantee to the drivers As
indicated, the driver operating agreements provided that
the drivers could be eligible for a $900-per-week guaran-
teed income under certain limited circumstances The
form agreements indicated that the guarantee would be
available only for relatively short periods of time In
practice, the guarantee was made available over longer
periods Bradley Smallwood testified that he was on
guarantee on and off; during periods when business was
slow, for about 2 years When on guarantee he had to be
available for Saturday work or lose one-sixth of the
guarantee Smallwood and Everet Bryant testified in sum
that the dnvers were required to make sales calls for the
Company as a condition of the guarantee They testified
concerning a meeting of drivers in early 1986 Kessmger
told the drivers they did not indicate enough sales calls,
e, soliciting business, on their settlement sheets, and
had to make more in order to get the guarantee When
one driver protested that he was a contractor and not a
sales representative, Kessmger simply repeated his state-
ment It is undisputed that the Company issued company
business cards to the drivers Smallwood's card described
him as a "city contractor," and Bryant's card described
him as a "Driver-Salesman" Regional Manager Weisman
testified in sum as follows The Company extended the
initial 13-week guarantee to all drivers during slow pen-
ods, in order to generate new business and assure that
drivers would be available on a daily basis If drivers
were under guarantee, the Company required that they
be available to meet customer calls, and for Saturday
pickup and delivery, and to make sales calls However
the guarantee has not been used in Kansas City for the
past 2 to 3 years None of the drivers testified that they
were required to accept the guarantee, or were required
to make sales calls or be regularly available for weekend
work when they were not covered by the guarantee
Considerable testimony was adduced concerning the
matters of order of runs, assignments within routes, and
deviations from routes The Company gave each driver
an assigned route Bradley Smallwood testified in sum as
follows Operations Manager Bowman determined the
order of stops, which was based on the order in which
the trailer was loaded At a meeting of drivers m De-
cember 1988 Smallwood said that the drivers should be
able to make stops at their own discretion Kessmger re-
sponded that he would not relinquish his dispatch Small-
wood asked dock contractor Kerr why two of his stops
(Ford and Riverside seat) were placed on the end He
said Kessinger told him to do this On one or two occa-
sions Kerr would place the loads as requested by Small-
wood, but not Ford or Riverside Smallwood objected to
one stop on his route (Central Air Freight) but he did
the run anyway He did not want airport runs because
they were time consuming Kessmger offered the runs to
Everet Bryant, who took them When Smallwood began
hauling for the Company, Kessmger told him he had a
"protected route" However the route was not protected
The Company would dispatch other drivers into his
route without his permission if he was tied up elsewhere,
or couldn't be reached, or for any reason The Company
also dispatched Smallwood to stops outside of his as-
signed route Smallwood initially had route 5, which in-
cluded General Motors, but was later switched to route
4, which did not include General Motors Nevertheless
on several occasions the Company dispatched him to
General Motors Smallwood did not like stopping at that
plant because of the long delays there He complained
several times to Kessmger, who told him that he had no
choice, that the Company needed someone to do the run,
and that Smallwood should cooperate or the Company
would get someone else to do the work However on
many occasions Smallwood was able to get out of doing
General Motors, which was an important company cus-
tomer In February 1988 Bowman dispatched him to
Dahmer Sales, which was on route 3 Smallwood pro-
tested because Dahmer was in a bad area and he could
get stuck Bowman told him that other trucks got in and
out, and that Smallwood was needed because no one else
was available Smallwood went and his truck got stuck
Everet Bryant testified in sum as follows Operations
Manager Bowman determined the order of delivenes by
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
giving the bills in the order he wanted them delivered
However about 10 percent of the time the drivers could
load the trailer their way Bryant's route was changed
from day to day, he was dispatched to stops outside his
designated route, and he could not decline a run whether
in or out of his assigned route In November 1986 he
asked Kessmger why he took away interline dehvenes
and pickups and gave them to Greg Callahan Kessmger
replied that Callahan was complaining about not making
enough money, but Bryant was doing all right In the
summer of 1987, Bowman directed Bryant to make a
stop in Slater, Missouri, outside his route Bowman
promised to hold a stop on Bryant's route, which was
more lucrative, until Bryant got back Instead he gave
the stop to other drivers Bowman explained that the
freight got hot, i e, the customer wanted immediate de-
livery On several occasions Kessmger informed Bryant
that certain "solid load," i e, full trailer load stops on his
route would now be handled directly by Transport over-
the-road drivers, instead of by transshipment via the
Kansas City terminal When Bryant complained, Kes-
singer said Transport wanted it this way One day in
August 1988, about 430 p m, Kessmger told Bryant to
make driver Carl Crow's run to Hamsonville Bryant
didn't want the run, but Kessmger insisted he take it, and
Bryant went Bryant told Kessmger that he welcomed all
work opportunities on a regular basis Eventually Bryant
handled all airport and railway runs Chris McGuire tes-
tified in sum as follows Bowman assigned him his route,
and Kessmger and Bowman frequently changed his
route, Including stops outside his assigned route The
trailer was loaded in the same order as the manifest
However McGuire and other drivers sometimes asked
dock contractor Kerr to load trailers in a particular
order, or to rearrange loading, and Kerr usually com-
plied with such requests Greg Callahan testified m sum
as follows He had an assigned route, which was subject
to change, and he was pulled off his route almost every-
day to make one or more trips On December 12, 1986,
he finished a late afternoon run to the General Motors
Fairfax plant When he returned to the terminal he was
dispatched to take additional loads, all on his route Cal-
lahan protested, saying he was ready to go home The
dispatcher said he had to go At this point Kessmger ex-
plained that paperwork caused the delays, and the situa-
tion would improve when they had a better computer
hookup Callahan took the runs On December 16, 1987,
Bowman told Callahan to prepare a written manifest
(cargo information) Callahan refused because the trailer
was loaded and sealed, Callahan did not see the trailer
loaded (he was out the previous days, and he did not
wish to identify cargo of which he had no personal
knowledge Kessmger said the driver must make the
manifest and, if Callahan did not, Kessmger would get
someone else who would Callahan prepared the mani-
fest Callahan admitted that he could have prepared the
manifest from the freight bills prepared by the shopper,
which Callahan had signed Callahan corroborated
Smallwood's testimony about the meeting at which Kes-
singer said he would not relinquish dispatch, although
Callahan testified that the meeting took place in Decem-
ber 1987 Callahan testified that in March 1988, Kes-
singer told the drivers that at General Motors' request,
the drivers would drop trailers at its Fairfax plant instead
of unloading As a result the drivers would get only a
kingpin rate of $13 instead of payment based on weight
(usually $33 50 or $49) The parties stipulated that the
cost to General Motors would be the same Martin
McGuire, Chris McGuire's brother, was also hired by
Bryant and operated Bryant's tractor for the Company
from about August to December 1988 Bryant made the
same wage arrangements with both brothers Martin
McGuire testified that in December 1988 he asked
Bowman if he could pick up a load fo CT!, which was
on his route Bowman said the load was already gone
Bowman refused to say who took the load, adding that
was the way it was, and if McGuire didn't like a, he
would talk to Bryant about pulling Bryant's contract
Carl Crow hauled for the Company as a driver-owner
from about October 1987 to December 1988 Crow testi-
fied about the December 1987 meeting at which Kes-
singer said he would not relinquish dispatch control
Crow testified that Kessmger was responding to a ques-
tion by Smallwood as to why the drivers could not use
discretion as to when to break off making deliveries and
proceed to pickups Crow further testified in sum as fol-
lows In January 1988 he had an airport delivery among
his bills, which was not on his assigned route Crow said
he did not want the run, but Bowman said he had to take
it One day in March 1988 about 2 30 p m, Crow was at
RND, his pnmary and most profitable customer, when
Bowman told him to make a pickup at O'Brien Parti-
tions Crow protested, but Bowman said he had to go,
and someone else would handle RND O'Brien Partitions
closes at 3 30 p m , but RND closes at 4 30 p m and will
load later if necessary In February 1988 Bowman told
Crow to go to Technical for a pickup Crow protested
that there was a steep incline and dirt road and he was
afraid of getting stuck Bowman said he had to go Crow
went, got stuck, and had to be towed In April 1988
Crow took a delivery to Lakeside Hospital He found
that this was an inside delivery, which meant moving the
cargo about 50 yards from the truck Crow contacted
Kissinger, told him there were nearly $100 in delivery
charges, and asked what was his share Kessmger an-
swered it was $15, according to the contract Crow said
he couldn't do it, and Kessmger told him to bring back
the load The next day Kessmger, who was visibly
angry, asked Crow if he was trying to terminate his con-
tract Crow answered he was not, that the contract said
nothing about inside delivery Kessmger replied that
Crow was still responsible for delivering the freight
RND, O'Brien, Techmseal, and Lakeside were all on
Crow's route Crow further testified that in March 1988
he complained to Company Supervisor Larry Thomas
about having to return to the terminal, at the Company's
discretion, to pick up freight for delivery Crow said this
caused him to lose money Thomas replied that it was his
policy for all freight to be delivered on the same business
day it was received at the Company's terminal Former
driver-owner David Moore testified in sum as follows
On April 14, 1986, after 4 p m, Bowman assigned him to
take a hot load to Lipton Tea, which was on his route
CENTRAL TRANSPORT 11
Moore said he didn't want to go in rush hour traffic
Kessinger said he had to go if he wanted to get paid on
Friday Moore went The Company required drivers to
complete all deliveries before making pickups Moore an-
ticipated making a pickup at Ideal Truck, which was on
his route Bowman dispatched him to another stop out-
side his route which paid less than Ideal, and gave Ideal
to another driver Moore objected to making Thom
McAn Deliveries, because it was inside a shopping
center and the Company did not pay the drivers the
inside delivery charges Eventually all the drivers
stopped doing Thom McAn Moore could load his
freight in any order he wanted, unless there was a hot
shipment However at that time there was no dock con-
tractor, and the drivers did their own loading
Regional Manager Weisman testified in sum as follows
The Company designates "protected" territories in
which each driver has prime responsibility However the
purpose of this arrangement is to protect the customer
e, not the driver), and the drivers are obligated to per-
form as dictated by the customer The Company relays
information on pickups and deliveries from the customer
to the driver The dispatcher sets up the customers by
cards within each area, and relays all pertinent informa-
tion to the driver Terminal Manager Kessmger testified
in sum as follows The dock contractor will load freight
in the order requested by the driver Such requests are
submitted orally or by note However the Company will
note customer requests and needs Sometimes, usually
about 3 or 4 times each week, the Company will request
a driver to change the order of stops Sometimes, usually
less often than once a week, a driver will object to han-
dlmg particular loads The dnver might object because
of shipper or consignee requirements, need for special
handling, or insufficient payment Sometimes, at least
once or twice weekly, the Company requests a driver to
make pickups or stops outside his territory The Compa-
ny can do this Sometimes the driver objects to such re-
quests Some drivers, like Bryant, were more willing
than others to go outside their territory Drivers fre-
quently complain about assignments in their territory to
other drivers, because this causes them to lose money
When confronted with driver objections, Kessmger
try to persuade the driver to take the assignment If un-
successful, Kessmger will use another driver, use an out-
side cartage company (which he has done some 6 to 12
times, at the rate of about $25 per hour), or he will take
the load himself (which he has done some 30-50 times)
At the December meeting of drivers, Smallwood asked
why the drivers could not decide when to stop deliveries
and commence pickups Mondays were very busy, and
the drivers wanted to carry over some freight to Tues-
day Kessmger responded that the Company must pro-
vide service to its customers, and must deliver all freight
everyday if possible, or else lose customers Kessmger
told the drivers that he did not want to relinquish dis-
patch control Kessmger testified that it was the Compa-
ny's policy to try to handle all freight within 1 day, and
he would do everything possible to achieve this goal
With regard to the change at General Motors' Fairfax
plant, this was done at General Motors' request Calla-
han's father had been a supervisor at the plant The plant
manager complained that someone was manipulating re-
ceiving so that Callahan and his father got the most un-
loading, and this was causing internal dissention There-
fore General Motors requested that the trailers be
dropped instead of unloaded In the absence of contrary
evidence, I credit Kessmger's explanation Except to the
extent indicated, Kessmger in his testimony did not ex-
pressly contradict the testimony of driver witnesses con-
cernmg specific incidents involving order of runs, assign-
ment within routes, and deviations from routes Dock
contractor Kerr testified in sum as follows As dock con-
tractor he has two full-time and six part-time employees
They break inbound loads, distribute them to the routes,
and load the trailers Each truck makes an average of
from 10 to 20 stops per day, Monday being the busiest
day Either Kerr or his employee will set up the order of
freight, to assure an orderly procedure The drivers may
give preferences (some more than others), or request
changes in order of loading Kerr and his employees are
aware of driver preferences Kerr has honored such re-
quests by Smallwood, Bryant, and other drivers (Calla-
han usually hauled a solid load ) The Company does not
direct order of loading except to meet an appointment,
e, when a customer requests a specific tune for deliv-
ery
Testimony was also adduced concerning the extent to
which the Company exercised control over drivers hired
by driver-owners As indicated, Bryant was the only al-
leged discrimmatee who used hired drivers on a regular,
full-time basis (Callahan used his father to drive eve-
nings and as a temporary replacement, and Smallwood
used only a temporary replacement ) Bryant testified that
as late 1986 the Company agreed to place a second trac-
tor under contract, and in March 1987 he commenced
using a second tractor to haul for the Company Bryant
testified in sum that he hired a succession of drivers to
haul his tractor for the Company, that Kessmger told
him with respect to some six of these drivers that their
performance was unsatisfactory and/or unacceptable to
the Company and that as a result he either fired the
driver, or the driver quit after Bryant told the driver of
the Company's complaints However the Company did
not complain about or reject all of Bryant's drivers The
Company did not reject Chris or Martin McGuire, or
Brad Schones, who drove for about a year, or Mark
Keifer, who drove for some 6 to 7 months Bryant gave
contradictory testimony with respect to one Ed Dawson
Bryant testified at one point that he fired Dawson after 1
or 2 days because the Company said his work was unsat-
isfactory At another point Bryant testified that Dawson
drove for him in 1989 until Dawson voluntarily quit
Bryant also indicated in his testimony that he did not
always react in the same manner when the Company
told him a driver was unsatisfactory Bryant immediately
terminated Alan Robmett and Joe Rhodes However he
spoke to Roderick Mansaw several times about his per-
formance before terminating him In 1987 Bryant was
laid up with a broken ankle and drove only 1 to 2 weeks
Chris McGuire drove one tractor and (apparently) Ed
Dawson drove the other Bryant testified that about
April 1, 1989, he removed one truck from service How-
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever on April 24, 1989, the day of the alleged unlawful
terminations, both Bryant and Chris McGuire reported
for work Therefore it is evident that Bryant either an-
ticipated using two tractors, or using one with McGuire
as driver Therefore, I do not agree with General Conn-
sd's suggestion (Br fn 2) that as of April 1989 the ques-
tion of Bryant's possible supervisory status was moot
Chris McGuire testified that Bryant interviewed him and
discussed his experience before hiring him McGuire fur-
ther testified that operations manager Bowman gave him
his papers and assigned him his rate, and that he usually
saw Bryant at work once or twice a week, specifically,
when Bryant paid him and if and when his truck broke
down However Bryant told him to take all the loads he
could handle Terminal Manager Kessmger testified in
sum that he informed Bryant about problems with hired
drivers, and specifically, repeatedly told him about prob-
lems with Rodenck Mansaw, finally telling Bryant that
he had to do something about Mansaw However Kes-
singer testified that on only one occasion did he actually
request Bryant to replace a driver On that occasion a
driver showed up who had no expenence baclung up a
trailer The driver took 90 minutes to accomplish this
task
B The Union's Organizational Efforts, and the
Alleged Unlawful Conduct
In 1986, the Union filed a petition for a Board-con-
ducted election among the Company's drivers and dock
personnel (Case 17-RC-9891) On December 24, 1986,
following a hearing, the Regional Director issued his De-
cision and Order, concluding that the drivers and Kerr
were independent contractors, and therefore dismissing
the petition The Regional Director based his conclusion
with respect to the drivers, in sum, on his findings that
the drivers determined their own work schedules and de-
livery routes within assigned areas, if they covered their
necessary pickups and deliveries they were free to go
elsewhere, the contracts with South created an independ-
ent contractor relation, and the driver provides his own
insurance, pays his own taxes, including Social Security,
and provides a replacement vehicle and obtains a substi-
tute driver if necessary, all at his own expense The
Union was not represented by counsel at the hearing,
and did not present any witnesses, but cross-examined
the Company's two witnesses
In early 1988 the Union demanded that the Company
recognize it as bargaining representative of the Kansas
City drivers, claiming that it had authorization cards
from the drivers When the Company failed or refused to
extend recognition, the Union sought recognition
through the grievance procedure of Teamsters' national
contract with Transport The grievance proceeding re-
sulted in a deadlock, which in effect precluded a con-
tractual resolution of the matter and left the Union free
to use alternative procedures By letters dated February
8 and April 6, 1989, the Union notified the Company of
its intention to strike in furtherance of its demand for
recognition Upon receipt of these notices, Regional
Manager Weisman and Terminal Manager Kessmger
asked Smallwood, Bryant, Chris McGuire, and Callahan
each whether they would cross the Union's picket line
Each driver answered that he would not Weisman and
Kessigner told each driver that in that event he could or
would be terminated, or that his contract would be can-
celed The complaint alleges that the Company thereby
violated Section 8(a)(1) by interrogating and threatening
employees From April 18 through 21, 1989, the Union
picketed the Company's Kansas City terminal All four
drivers honored the picket line, and Smallwood, Bryant,
and Callahan participated in the picketing On April 22
the Union advised the drivers to return to work On
April 24 the drivers reported to the Company's terminal,
but the Company did not permit them to enter By let-
ters to Smallwood, Bryant, and Callahan, the Company ••
informed each that his operating agreement was termi-
nated Kessinger testified that the Company terminated
them because by honoring the picket line, they failed to
fulfill their contractual obligations Kessmger testified
that the Company did not terminate McGuire, i e, that
McGuire could not haul because Bryant's agreement was
terminated The complaint alleges that the Company vio-
lated Section 8(a)(1) and (3) by terminating all four driv-
ers because of their union and concerted activities
C Analysis and Concluding Findings
The threshold and principal issue in this case is wheth-
er Smallwood, Bryant, and Callahan were mdependent
contractors or company employees, and if mdependent
contractors, whether Chris McGuire was employed by
Bryant or the Company For the reasons which will be
discussed, I find that Smallwood, Bryant, and Callahan
were independent contractors, and that McGuire was an
employee of Bryant
In determining whether individuals are employees or
independent contractors, the Board is required to apply
the common law of agency, and specifically, the "right-
of-control" test Under this test, an employer-employee
relationship exists when the employer reserves not only
the right to control the result to be achieved, but also
the means to be used in attaining the result On the other
hand, where the employer has reserved only the right to
control the ends to be achieved, an independent contrac-
tor relationship exists The resolution of this question de-
pends on the facts of each case, and no one factor is de-
terminative NLRB v United Insurance Co, 390 U S 254
(1968), Precision Bulk Transport, 279 NLRB 437 (1986)
As this test is one of common law, the elements to be
considered do not include effectuation of the purposes of
the Act Indeed, in United Insurance the Court made
clear that this was the intent of Congress Also, as the
test is one of common law, the Board has no special ex-
pertise in this area which warrants judicial deference
North American Van Lines v NLRB, 869 F 2d 596 (D C
Cu 1989) Rather it is the Courts who are the experts on
the common law This factor probably accounts in large
part for the many cases in which courts of appeals have
reversed Board determinations that individuals were em-
ployees rather than independent contractors, particularly
in the trucking and taxicab industries Also, as the test is
one of common law, one might reasonably expect a
fairly consistent pattern of Board decisions m this area
over the years, particularly in light of the fact that both
CENTRAL TRANSPORT

13
the Board and the Internal Revenue Service (IRS) are
required to apply the same standard Therefore, theoreti-
cally at least, both agencies should reach the same con-
clusions in dealing with the same fact situations In prac-
tice, as we know, this has not been the case Board deci-
sions in this area have been characterized by shifting and
sometimes inconsistent or irreconcilable results, usually
but not always depending on the Board's composition
Therein lies the fallacy of General Counsel's position in
this case In arguing that the alleged discrmunatees are
company employees, General Counsel relies substantially
on the authority of pre-1983 Board decisions, while
almost totally ignoring court decisions and post-1982
Board decisions General Counsel relies principally on
Capital Parcel Delivery Co, 256 NLRB 302 (1981), while
ignoring the subsequent history of that case I agree that
Capital Parcel should be regarded as authority on the
kind of fact situation in the present case, but I do not
rely on the above-cited decision The Ninth Circuit
Court vacated that decision and remanded the case for
Board consideration in light of Merchants Home Delivery
Service v NLRB, 580 F 2d 966 (9th Cir 1978), which
also reversed a Board decision (230 NLRB 290) relied on
by General Counsel The Board accepted the remand as
the law of the case, applied the right-to-control tests set
forth in the Restatement (Second) of Agency, 220 (1957),
coupled with examination of entrepreneurial indicia, and
on the basis of this analysis, found the owner-operators
in question to be independent contractors (269 NLRB
52) Subsequent Board decisions indicate that the Board
did not simply accept the court's view as the law of the
case, but continued to follow on analysis which was par-
allel to and compatible with the court's approach See
Precision Bulk Transports, 279 NLRB 437 (1986), Con-
tainer Transit, 281 NLRB 1039, 1050-1058 (1986), and
Ida Cal Freight Lines, 289 NLRB 924 (1988), citing Preci-
sion Bulk and Container Transit as authority Each of
these cases involved arrangements comparable to those
in the present case, and in each the Board found the
drivers at issue to be independent contractors or employ-
ees of independent contractor drivers North American
Van Lines, 288 NLRB 38 (1988), which suggests a differ-
ent approach, was a short form Board decision which
the District of Columbia Circuit Court subsequently re-
versed (869 F 2d 596) But see Roadway Package System,
288 NLRB 196 (1988) Although Ida Cal was decided
shortly after Roadway Package, and by the same panel,
the Board in Ida Cal made no reference to Roadway
Package
Applying the standards set forth in Capital Parcel II
and followed in Precision Bulk Container Transit, and Ida
Cal, I find that the signatory driver-owners were inde-
pendent contractors and that the drivers whom they
hired were their employees Many of the facts which
demonstrate this status are undisputed The driver-
owners voluntarily signed agreements by which they ac-
knowledged and accepted their status as independent
contractors See Capital Parcel, 269 NLRB at 54 In this
regard, the unequal bargaining power as between the
Company and the drivers is immaterial North American
Van Lines, supra, 869 F 2d at 599 The driver signatories
owned or leased their own tractors, which involved a
substantial investment on their part Bryant owned or
leased from two to five tractors, and when he had more
than two, he regularly used them to haul for other firms,
including competitors of the Company The size and
scope of Bryant's operations tend to indicate that he was
engaged in a haulmg business The Company imposed no
requirements on the size or type of tractor used (al-
though the Company had its preference) and required no
uniform color or appearance, except to display a compa-
ny decal when engaged in hauling for the Company The
drivers were not paid an hourly wage, but were paid by
the job plus compensation for mileage The driver-signa-
tories paid their expenses, were solely responsible for
mamtammg their tractors, and paid their own Federal
and state income taxes and made their social security
contributions as self-employed persons They kept their
own books and records They were not subject to any
dress code As they were responsible for maintaining
their own tractors, the drivers could at least to this
extent control some costs and thereby enhance their
income The drivers could also enhance their income,
like Callahan, by hiring another driver to perform
evening work, or like Bryant, to add another tractor or
hire another driver to do weekend work These are in&
cia of entrepreneurial status
The evidence indicates that working hours were dic-
tated by the needs of the Company's customers Normal
delivery and pickup hours ran from about 8 a m to 4
pm The Company did not care what time the drivers
checked into the terminal, and when or how many
breaks they took, or for how long, provided that the
drivers were available to meet the needs of its customers
The evidence indicates that the drivers checked Into the
Company's terminal at varying times, and took breaks at
varying times, all at their own discretion, subject to the
needs of the Company's customers Insofar as the Com-
pany exercised control over the working hours of the
drivers, that control was addressed to ends to be
achieved, i e, customer service, rather than the means to
achieve that result, i e, a determination by the Company
that the drivers be on duty during fixed periods of time,
without regard to the need for particular pickups and de-
liveries The same is also true with respect to account-
ability The nature of the Company's business required
that the drivers remain in regular contact with dispatch
in order to promptly meet the needs of the Company's
customers, which needs were subject to change It is
true, and the Company so admits, that the nature of the
Company's business precluded the drivers from engaging
in noncompany hauling during weekdays It is also true,
and the Company so admits, that the drivers' working
hours, assignments, order of runs and changes in assign-
ments, were to a significant extent dictated by the Com-
pany's policy of sameday delivery However this was an
essential element of the Company's business, i e, the end
to be achieved rather than the means to achieve that end
As indicated, the drivers were required, as a condition
of receiving a guarantee, to be available for Saturday
work and to solicit business for the Company The fact
of a guarantee does not in itself demonstrate employee
status Capital Parcel, 269 NLRB at 54 But see Roadway
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Package, supra Moreover, the guarantee arrangement
was voluntary The drivers were not required to accept
the guarantee and the conditions which come with it As
indicated, the guarantee system was not in use at the
time of the alleged unfair labor practices The evidence
indicates that absent a guarantee, the drivers were usual-
ly free to engage in outside hauling on weekends In
practice, such opportunities were limited, because the
drivers could not use company trailers for hauling, and
were subject to state restrictions governing such hauling
However such restrictions do not demonstrate employee
status With regard to assignments, the evidence indicates
that from a long-range standpoint the Company and the
drivers worked out arrangements to accommodate the
drivers' preferences Thus, Bryant eventually took the
airport and railway runs, which involved weekend work,
and Callahan took evening work, using his father as
driver It is also significant that the Company eventually
stopped using its driver-signatories to make inside deliv-
eries because they were unable to reach agreement on
terms of compensation This fact tends to corroborate
Kessinger's testimony that he sometimes used alternative
methods of delivery when he could not persuade drivers
to handle particular runs The Company was less tolerant
of driver unwillingness to handle runs on their designat-
ed routes, or to accept deviations from their routes
These deviations usually involved changes in order to
meet customers' changing needs or requirements, or
changes needed to effectuate same-day delivery The
Company had no disciplinary procedure Insofar as the
Company exercised coercion over the drivers to achieve
compliance with dispatch, such coercion usually took the
form of telling the driver that the Company would get
someone else to do the run, or threatening to cancel the
driver's contract
The Company had no training program for drivers
Rather the evidence indicates that the Company expect-
ed that its drivers, whether signatories or hired by signa-
tories, would be skilled, experienced drivers who did not
require training or supervision over the performance of
their work The evidence also demonstrates an employer-
employee relationship as between the driver signatories
and their hired drivers The driver-signatories independ-
ently selected their hired drivers, set their rates of pay,
assumed full responsibility for paying the hired drivers,
counseled them concerning unsatisfactory work perform-
ance (as in the case of Bryant and his hired driver
Mansaw), and terminated hired drivers As indicated, the
Company informed a driver signatory when it regarded
the performance of his hired driver as unsatisfactory If
the Company remained of this view, the signatory invari-
ably terminated the hired driver However as discussed,
the driver-signatory exercised discretion in deciding
whether to first attempt counseling his driver On the job
the Company exercised the same kind of control over
hired drivers as over driver-signatories, namely, through
the dispatch procedure The testimony of the four al-
leged discrimmatees indicates that the Company was less
tolerant of McGuire's dislikes than the dislikes of the
driver-signatories McGuire testified in sum that when he
complained about dispatches or working late, Bowman
would tell him that the Company could cancel Bryant's
contract However Bryant told both the Company and
McGuire that he wanted as much work as he could get
Therefore the Company was in effect carrying out Bry-
ant's preference It is also significant that Bowman did
not threaten McGuire that he would be terminated
Rather Bowman spoke in terms of Bryant's contract As
indicated, McGuire testified that dock contractor Kerr
usually complied with driver requests that trailers be
loaded in a particular order If Kerr honored such re-
quests by a hired driver, then it is probable that he did
likewise for driver-signatories Therefore I credit Kerr's
testimony that the Company did not direct the order or
loading except to meet an appointment, i e, to achieve
the end result rather than to establish a means for achiev-
ing that result
The drivers were engaged in performing the Compa-
ny's regular business, and the driver-signatories hauled
for the Company on a long-term basis However these
factors were also present in Capital Parcel, Precision Bulk
Transports, Container Transit, Ida Cal Freight Lines, and
North American Van Lines I recognize that one may
recite a long list of factors in any pair of cases, in no par-
ticular order, and declare on the basis of a few differ-
ences that the cases are distinguishable The fact remains
that the cited decisions involved arrangements which
were substantially similar to that in the present case In
each of the cited cases, the Board or reviewing court ul-
timately determined that the drivers were independent
contractors or employees of independent contractors 3
As Smallwood, Bryant, and Callahan were independent
contractors, it follows that the Company did not violate
the Act by terminating their contracts, thereby dispens-
ing with their services, or by threatening or interrogating
them as alleged in the complaint The Company did not
terminate McGuire Rather, McGuire no longer hauled
for the Company because the Company canceled his em-
ployer's contract The allegations that the Company un-
lawfully threatened and interrogated employees, present
a closer question insofar as they involve McGuire be-
cause the Company was an "employer" under the Act
and McGuire was an "employee," albeit not the Compa-
ny's employee I find that the alleged threat was ad-
dressed to the business relationship between the Compa-
ny and Bryant, and therefore did not constitute a threat
of unlawful termination The alleged mterrogation had a
legitimate purpose, namely, to determine whether Bryant
intended to fulfill his contractual obligations, and there-
fore was not unlawful
CONCLUSIONS OF LAW
1 Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
3 In finding that the drivers were not company employees, I have con-
sidered but not relied on the representation decision in Case 17-RC-9891
The findings in that proceeding were based on an inadequately developed
record See Air Transit, 256 NLRB 278, 279 (1981), revd on other
grounds 679 F 2d 1095 (4th Cu- 1982)
CENTRAL TRANSPORT 15
2 The Union is a labor organization within the mean- On these findings of fact and conclusions of law and
mg of Section 2(5) of the Act on the entire record, I issue the following recommend-
3 Everet Bryant, Bradley Smallwood, and Gregory ed4
Callahan were at all times material mdependent contrac-
tors, and Christopher McGuire was an employee of ORDER
Bryant The complaint is dismissed
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses