Deaton, Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1973

203 N.L.R.B. 1099 (N.L.R.B. 1973)

DEATON, INC.
Deaton, Inc. and Service Employees International
Union, Local 623, AFL-CIO. Case 10-CA-9765
June 1, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On January 31, 1973, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding . Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Deaton , Inc., Birmingham,
Alabama, its officers , agents, successors , and assigns,
shall take the action set forth in the said recom-
mended Order.
CHAIRMAN MILLER , dissenting:
As I stated in my dissenting opinion in the underly-
ing representation case (187 NLRB 780), I consider
the lease owners involved herein to be independent
contractors rather than employees of the Respondent.
In my view, therefore, we had no authority to certify
the Union as the representative of such nonemploy-
ees, and Respondent Company has no obligation to
bargain with the Union concerning their wages,
hours, or other terms and conditions of employment.
I would therefore dismiss the complaint in its entirety.
DECISION
STATEMENT OF THE CASE
ROBERT COHN , Administrative Law Judge: Upon a charge
filed by Service Employees International Union, Local No.
623, AFL-CIO (herein the Union), on August 31, 1972,1
1099
against Deaton, Inc. (herein the Respondent or Company),
a complaint and notice of hearing was issued by the Region-
al Director for Region 10 on September 15. The complaint
alleged, in essence, that since on or about May 12, the
Company has refused to bargain with the Union as exclu-
sive bargaining representative of the Company's employees
in an appropriate unit, in violation of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended (herein
the Act). By its duly filed answer, Respondent admitted the
jurisdictional allegations of the complaint and inferentially
admitted the refusal to bargain. It defended its position in
its answer on the grounds that the "unit certified was inap-
propriate, that it included independent contractors.... "
The matter was heard before me in Birmingham, Ala-
bama, on November 16, with all parties present. At the close
of the hearing oral argument was waived, but a posthearing
brief has been filed with me by counsel for the Respondent,
which has been duly considered.
Upon the entire record herein, including arguments of
counsel, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, with its principal
office and place of business located at Birmingham, Ala-
bama, is engaged in the business of transportation of goods
in interstate commerce as a common carrier under license
from the Interstate Commerce Commission. During the
past calendar year, which period is representative of all
times material herein, Respondent received more than
$50,000 from the interstate transportation of freight.
Based upon the foregoing facts, I find, as Respondent
admits, that it is, and has been at all times material herein,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
The only issue in this proceeding is whether Respondent
unlawfully refused to bargain with the Union as the certi-
fied representative of its employees in an appropriate unit.
The facts are undisputed, and may be summarized as fol-
lows:
Pursuant to a decision and direction of election by the
National Labor Relations Board dated January 11, 1971,2
an election by mail ballot was conducted by the Regional
Director for Region 10 from February 1 through February
23, 1971. On February 26, 1971, the ballots were tabulated
and the parties were furnished a tally of ballots which
showed that of approximately 314 eligible voters, 108 cast
1 Unless otherwise indicated , all dates refer to 1972. 2 Case IO-RC-8225.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valid votes for, and 94 cast valid votes against, the Union,
and 16 cast challenged ballots . There was one void ballot.
The challenged ballots being sufficient in number to affect
the results of the election , and the employer subsequently
having filed timely objections to the election , the Regional
Director conducted an investigation into these matters.
On May 10, 1971, the Regional Director issued his report
on objections and challenged ballots . In such report, the
Regional Director recommended to the Board that the chal-
lenges to the ballots of four employees be sustained and that
the objections of the employer be overruled. He further
found that since the tally of ballots showed that a majority
of valid votes had been cast for the Union , a certification
of representatives be issued . The Board, op August 26, 1971,
overruled the Company 's exceptions to the Regional
Director's report, and certified the Union as the exclusive
bargaining representative of the employees in the unit there-
tofore found appropriate.'
Thereafter, there were several informal meetings held be-
tween the Company's attorney and the representative of the
Union looking towards the possibility of holding formal
negotiating sessions . At these meetings the Company's at-
torney took the position that the Company was willing to
bargain for the "people who we admitted were our employ-
ees" but were not willing to bargain concerning those "peo-
ple that we considered independent contractors." 5 The
union representative took the position that the Union was
certified as bargaining representative for all of the employ-
ees in the unit and they were the individuals whom he
intended to bargain for.
The evidence discloses that on May 12 the union repre-
sentative sent the company attorney a telegram requesting
a meeting "at the earliest possible convenience for the pur-
pose of negotiating contract for Deaton drivers." The Com-
pany never responded to that telegram and no meetings
were ever held.
Analysis and Concluding Findings
Respondent in its brief argued that the Board , in a deci-
sion issued subsequent to its Decision in the instant case,
altered its position with respect to the question of whether
certain drivers were "employees" or "independent contrac-
tors," and that , therefore , the Decision in the instant case
must be reappraised . In support of its position, it cites the
Board's decision in Fleet Transport Company, Inc., 196
NLRB 487.
In Fleet, the Board, applying the "common law right of
l The objections related solely to the manner in which the Regional Direc-
tor conducted the election; i.e., by mail.
4 The appropriate unit, as found by the Board in the original decision (187
NLRB 780) included-
All over-the-road truckdnvers, city pickup and delivery drivers, hostel-
ers, and maintenance employees at the employers Birmingham, Ala-
bama, plant, excluding all office clerical employees, salesman, guards,
and supervisors as defined in the Act.
In so finding, the Board determined that the single owner-drivers and the
nonowner-drivers were employees of the Employer rather than independent
contractors, as contended by the Company
5 The company attorney took the position that he could not bargain for
those persons because "I didn't pay their wages and I didn't pay their insur-
ance and I didn't set the hours of work, that the other fellow did it."
control test," determined that certain drivers utilized by the
employer in that case were "independent contractors" rath-
er than "employees." The Board stated that "the resolution
of this question depends on the facts of each case, with no
one factor being determinative."
Even were I to conclude (which I do not) after a reading
of both cases that "Deaton's case involves a stronger case
for independent contractors than Fleet Transport Compa-
ny" 6 I still would deem myself bound by the Board's deci-
sion in the representation case involving this Respondent.
Accordingly, I reject the Respondent's defense and there-
fore find and conclude that at all times since May 12 it has
failed and refused to bargain with the Union as the certified
representative of Respondent's employees in an appropriate
unit, in violation of Section 8(a)(1) and (5) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section I, above,
occurring in connection with Respondent's operations de-
scribed in section III, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that Respondent had engaged in unfair
labor practices within the meaning of Section 8 (a)(5) and (1)
of the Act, I shall recommend that it cease and desist there-
from, and, upon request , bargain collectively with the
Union as the exclusive representative of all employees in the
appropriate unit , and, if an understanding is reached, em-
body such understanding in a signed agreement.
In order to insure that the employees in the appropriate
unit will be accorded the service of their selected bargaining
agent for the period provided by law, it shall be construed
that the initial year of certification begins on the date the
Respondent commences to bargain in good faith with the
Union as the recognized bargaining representative in the
appropriate unit . See Mar Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229, enfd . 328 F.2d 600 (C.A., 1964), cert. de-
nied 379 U.S. 817 (1964); Burnett Construction Company,
149 NLRB 1419, 1421, enfd . 350 F.2d 57 (C.A. 10, 1965).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All over-the-road truckdrivers, city pickup and deliv-
ery drivers, hostelers, and maintenance employees at
Respondent's Birmingham, Alabama, plant, excluding all
office clerical employees, salesmen, guards, and supervisors
as defined in the Act, constitute a unit appropriate for the
6 Resp br p 2
DEATON, INC.
purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. By virtue of a Board certification dated August 26,
1971, Service Employees International Union, Local No.
623, AFL-CIO, has been, and now is, the certified and
exclusive representative of all of the employees in the appro-
priate unit described above for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing on and after May 12, 1972, to bargain in
good faith with the aforesaid Union concerning wages, rates
of pay, hours , and other terms and conditions of employ-
ment, Respondent has engaged in and is now engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings and conclusions, and pur-
suant to Section 10(c) of the Act, I hereby issue the follow-
ing recommended:
1101
Order, what steps the Respondent has taken to comply here-
with.
7 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order and all objections thereto shall be deemed
waived for all purposes
8 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER7
Respondent , Deaton , Inc., its officers , agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Service Employees International Union, Lo-
cal 623, AFL-CIO, as the exclusive bargaining
representative of its employees in the following appropriate
unit:
All over-the-road truckdrivers, city pickup and delivery
drivers, hostelers, and maintenance employees at
Respondent 's Birmingham , Alabama, plant, excluding
all office clerical employees , salesmen , guards , and su-
pervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request bargain with the above-named labor
organization as the exclusive representative of all the em-
ployees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours, and other terms and conditions
of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its Birmingham, Alabama, plant, copies of the
attached notice marked "Appendix." 8 Copies of said no-
tice, on forms provided by the Regional Director for Region
10, shall, after being duly signed by an authorized represent-
ative of the Respondent, be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altereed,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this recommended
WE WILL NOT refuse to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with Service Employees Interna-
tional Union, Local No. 623, AFL-CIO, as the
exclusive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below, with
respect to rates of pay, wages , hours and other terms
and conditions of employment, and if an under-
standing is reached, embody such understanding in a
signed agreement . The bargaining unit is:
All over-the-road truckdrivers, city pickup and deliv-
ery drivers, hostelers, and maintenance employees at
the employer' s Birmingham, Alabama, plant, ex-
cluding all office clerical employees, salesmen,
guards, and supervisors as defined in the Act.
DEATON, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 2102 City Federal Building, 2026
Second Avenue North, Birmingham, Alabama 35203, Tele-
phone 205-325-3877.