Eck Miller Transportation Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1974

211 N.L.R.B. 251 (N.L.R.B. 1974)

ECK MILLER TRANSPORTATION CORP. 251
Eck Miller Transportation Corporation and Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Local
No. 215, Chauffeurs, Teamsters, Warehousemen
and Helpers of America , Petitioner. Case
25-RC-5432
June 10, 1974
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY, AND
PENELLO
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret mail ballot
was conducted under the direction and supervision
of the Regional Director for Region 25 among the
employees in the appropriate unit. At the conclusion
of the election, the parties were furnished with a tally
of ballots which showed that of approximately 135
eligible voters, 116 cast ballots, of which 39 were for,
and 45 against, the Petitioner, and 32 ballots were
challenged. The challenged ballots are sufficient in
number to affect the results of the election. Thereaf-
ter, the Petitioner and the Employer filed timely
objections to conduct affecting the results of the
election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Regional Director for Region 25 conducted an
investigation and, on January 9, 1974, issued and
duly served on the parties his Report on Challenged
Ballots and Objections to Conduct Affecting the
Results of Election, Recommendations to the Board,
Order Directing Hearing, Notice of Hearing and
Order Consolidating Cases. In his report, the
Regional Director recommended that the Employer's
Objection 5 and Petitioner's Objections 1 (except as
it relates to Charles Smith), 2, 3, and 4 be overruled.
He further recommended that the challenges to the
ballots of Cecil Huddleston, Alvie Brooks, Marvin
Schoalff, James Smiley, Doyle West, Joe Durbin,
Claude Avery, Walter Johnson, James Moore, and
Harrell Freeman be sustained. He further recom-
mended that the challenges to the ballots of Herbert
Dooms, William Bricker, A. D. Paine, Dennis
Westmoreland, Paul Conley, Danny Eddings, and
Richard Riley be overruled and that their ballots be
opened and counted. The Regional Director, in his
report, ordered that a hearing be conducted to
resolve the issues raised by Petitioner's Objection 1
(as it relates to Charles Smith), the "Additional
Alleged Objectionable Conduct," and Employer's
i No exception has been taken to the Regional Director's finding that the
Employer and the fleet owners are joint employers of nonowner drivers in
this unit.
Objections 1, 2, 3, and 4. He further ordered that a
hearing be conducted to resolve the issues raised by
the challenges to the ballots of Edwin Hamlet, Louis
(Tony) Salmela , Bobby Lee, Joe Scott, Bobby
Haston, James Vance, Jeff Jackson, Melvin Hoopin-
garner, Maureen Beatty, Howard Greene, Charles
Wells, Glen Hagen, Dean Dunn, Randall Stratton,
and Charles Smith. He further ordered that Case
25-RC-5432 and Case 25-CA-5817 be consolidat-
ed for the purposes of hearing, ruling, and decision
by an Administrative Law Judge. Thereafter, the
Petitioner and Employer filed timely exceptions to
the Regional Director's report and briefs in support
thereof; the Employer also filed a brief in answer to
Petitioner's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, 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 jurisdiction herein.
2. The Union is a labor organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All owner-operator drivers and nonowner-driv-
ers of equipment leased to Eck Miller Transporta-
tion Corporation operating on its authority, all
mechanics, all garage laborers, and all local or
city drivers (except local or city drivers who are
covered by an existing valid collective-bargaining
agreement) who are direct employees of Eck
Miller Transportation Corporation at the Em-
ployer's Owensboro, Kentucky, facilities; but
excluding all other Eck Miller employees, all
nondriver owners of equipment leased to Eck
Miller, all office clerical employees, all manageri-
al employees, all joint employers,' all guards, and
supervisors as defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the Petitioner's 2 and Employer's excep-
2 We find no merit in the Petitioner 's contention, in regard to the
challenges to the ballots of A. D. Paine , Dennis Westmoreland , and Paul
Conley, that we should reconsider the holding of Plymouth Towing
(Continued)
211 NLRB No. 12
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions thereto, and the Employer's brief in answer to
Petitioner's exceptions, and hereby adopts3 the
Regional Director's findings,4 'conclusions, and
recommendations5 with the following modifications:
(a) We find merit in the Employer's exception to
the Regional Director's finding, insofar as it is based
on an informal investigation, that owner-operator
truckdrivers and nonowner-drivers employed by fleet
owners who have leases with Eck Miller are
employees and not independent contractors of Eck
Miller. The investigation herein did not include a
formal hearing and hence was insufficient for a
conclusive determination by the Regional Director.
Nevertheless, even though the issue of the drivers'
status was not raised by the parties, the Regional
Director properly relied on the terms of the stipulat-
ed appropriate unit agreed upon by the parties in the
election agreement, as well as the provisions of the
contemporaneous strike settlement agreement in
which the Employer waived its right to assert any
legal claim before the Board predicated on the
proposition that owner-operators or nonowner-driv-
ers are "independent contractors" and not "employ-
ees" within the meaning of Section 2(3) of the Act .6
Such an agreement must constitute a concession that
those drivers are "employees" within the meaning of
the Act in order for the Board's jurisdiction to be
asserted lawfully.
Our dissenting colleague would direct a hearing on
the issue as to whether the owner-operator truckdri-
vers and nonowner-drivers are independent contrac-
tors. We do not agree.
Although the facts in this case are such that the
problems created in Barwood, Inc., 209 NLRB No. 8,
could conceivably recur, the chances of such a
circumstance occurring again are quite remote. In
Company, Inc., 178 NLRB 651, that in a mail ballot election the voter must
be employed on the eligibility date and on the date he casts (mails) his
ballot. We agree with the Regional Director (who recommended overruling
the challenges) that their ballots should be counted in spite of the possibility
that they had terminated their employment with the Employer between the
dates on which the ballots were cast and they were counted. Also, in the
absence of exceptions thereto, we adopt , pro forma, the Regional Director's
recommendation that the challenges to the ballots of Herbert Dooms,
Danny Eddings, and Richard Riley be overruled . Although we agree with
the Regional Director that the ballots of the above six individuals should be
opened and counted, since they, as a group , could not be determinative of
the outcome of the election , they are not to be opened and counted until we
have ruled upon the other challenges upon which a hearing will be held.
a In the absence of exceptions thereto, the Board adopts, pro forma, the
Regional Director 's recommendations that the Employer's Objection 5 and
Petitioner 's Objections I (except as it relates to Charles Smith ), 2, 3, and 4
be overruled ; that the challenges to the ballots of Cecil Huddleston, Alvie
Brooks, Marvin Schoalff, James Smiley, Doyle West , Joe Durbin, Claude
Avery, James Moore, and Harrell Freeman be sustained ; that a hearing be
conducted to resolve issues raised by Petitioner's Objection 1 (as it relates to
Charles Smith), Employer's Objections 1, 2, 3, and 4 , and the challenges to
the ballots of Jeff Jackson, Melvin Hoopingarner , Maureen Beatty, Howard
Greene , Charles Wells, Glen Hagen , Dean Dunn , and Charles Smith; and
that Case 25-RC-5432 and Case 25-CA-5817 be consolidated for the
purposes of hearing , ruling , and decision by an Administrative Law Judge.
Barwood a union was certified after a stipulated
election to represent a unit consisting mainly of
cabdrivers. The employer refused to bargain and in a
subsequent proceeding, under Section 8(a)(5) of the
Act, introduced evidence, without objection from the
General Counsel, to establish that the cabdrivers
were in fact independent contractors. The Board was
therefore constrained to find that the cabdrivers were
not employees within the meaning of the Act and
dismissed the complaint. It appears to be the rare
case indeed where the General Counsel would not
object to the admission of such evidence in view of
the prior stipulated election.
In the case herein, the parties agreed to a
Stipulation for Certification Upon Consent Election
which included a unit description consisting of
truckdrivers. Furthermore, the Employer, in a con-
temporaneous strike settlement agreement signed
prior to the election, agreed not to assert a legal
claim before the Board predicated upon the proposi-
tion that single owner-operators and nonowner-
drivers of equipment leased to the Employer are
"independent contractors" or are not "employees"
within the meaning of Section 2(3) of the Act.
Although the dissenting opinion correctly indicates
that the Employer has excepted to the Regional
Director's conclusion that these individuals are not
independent contractors, the Employer does not now
ask the Board to decide the issue (it in fact
emphasizes that it is not now asserting that these
individuals are not employees under the Act) and
does not indicate that it will seek a Board determina-
tion in the future. Instead, it states that it merely
seeks to have the Regional Director's conclusion
Contrary to the Employer's contention , the Board agrees with the
Regional Director that a hearing is necessary to determine whether James
Vance was an employee of the Employer on the eligibility and election
dates.
4 Although the Employer's exception to the Regional Director's
statement that it lacks any formal contractual arrangement with its directly
employed truckdrivers may be correct , we need not consider this exception
as this fact is immaterial to the resolution of any of the issues presented
herein.
5 The Employer, in an exception , contends that issues arising out of
additional alleged objectionable conduct cited by the Regional Director
should not be the subject of a hearing since such allegations were neither the
subject of nor related to Petitioner's objections . Members Kennedy and
Penello agree that the hearing should include these issues, since they are
also the subject of an unfair labor practice proceeding consolidated with the
case herein for the purpose of hearing , but affirm the Regional Director's
direction of a hearing without prejudice to the Employer 's right to reassert
this exception after the hearing. Member Jenkins would find no merit in the
Employer's contention.
6 The Employer, in its brief, asserts that in the strike settlement
agreement it only agreed not to raise the issue before the Board and
therefore is not prohibited from raising the issue before any court . It is the
general rule, pursuant to Sec. 10(e) of the Act, that a party may not, absent
extraordinary circumstances , raise before a court an issue that has not been
urged before the Board.
ECK MILLER TRANSPORTATION CORP. 253
stricken as irrelevant because neither party has raised
the issue.?
Edtltrary to the dissent, merely remanding for a
hearing on this issue appears inadequate. It seems to
us that the only way that we could now reach the
issue would be to reject the stipulation, set the
election aside, and remand for processing de novo.
We see no utility in compelling the parties to litigate
the employee/independent contractor status of the
drivers. Such an approach would be contrary to our
policy of encouraging the settlement of disputes by
the parties themselves without resort to litigation.
Furthermore, if we ordered a hearing on this issue
under the above circumstances, we would be estab-
lishing a policy which would preclude a consent
election and would require conducting a hearing
whenever an independent contractor issue could
possibly exist regardless of the position taken by the
parties. Such a procedure is even more inappropriate
when one considers that independent contractor
issues present close factual questions which are
clearly susceptible to stipulation of the parties. In
fact, such cases submitted to the Board for decision
have frequently resulted in divided opinions.8
(b) The Employer excepts to the recommendations
that the challenge to the ballot of Walter Johnson be
sustained and that of William Bricker be overruled.
The Regional Director concluded that, because
owner-operator Walter Johnson never hauled a load
for the Employer after signing a lease during the
strike, he did not meet the tests for eligibility.
However, the current record is insufficient to
determine whether in fact he became an economic
striker and, if so , whether he retained his status as
such on the eligibility and the election dates.9
Accordingly, we are of the opinion that a hearing
concerning the voting eligibility of Walter Johnson
should be conducted.
On the other hand, the Regional Director conclud-
ed that owner-operator William Bricker was an
employee on the July 24, 1973, eligibility date and on
the date he cast his ballot. The Employer contends
that Bricker had terminated his employment before
he mailed his ballot. Since the record is incomplete as
to whether Bricker was an economic striker and, if
so, whether he retained his status as such on the
pertinent dates, we are of the opinion that a hearing
should also be conducted regarding Bricker.
(c) Although we affirm the Regional Director's
order directing a hearing regarding the challenges to
the ballots of Edwin Hamlet, Louis Salmela, Bobby
Lee, Joe Scott, and Bobby Haston, we do so for
reasons other than those set forth by the Regional
Director. Hamlet, Salmela, Lee, and Scott lost access
to a tractor, a sine qua non of employment with the
Employer, when the fleet owners by whom they were
directly employed terminated their leases with Eck
Miller during the economic strike conducted against
Eck Miller. Bobby Haston, an owner-operator, had
his tractor repossessed by a lien holder during the
strike. The Regional Director found that, since the
Employer, along with the fleet owners, was a joint
employer of the nonowner-driver employees of the
fleet owners at the commencement of the strike, it
was arguably obliged to reinstate economic strikers
when openings occurred among the Employer's
directly employed local city drivers. He therefore
concluded that those drivers might be eligible to vote
as unreinstated strikers and ordered a hearing to
determine if they were strikers; if so, whether they
had preserved or abandoned their rights to reinstate-
ment on the eligibility and election dates; and
whether they were or were not entitled to reinstate-
ment as direct employees of the Employer when
vacancies occurred under the Laidlaw rule.10 Finding
Haston's situation analogous to that of the others,
the Regional Director also ordered a hearing on the
same issues regarding the challenge to his ballot.
The Laidlaw rule is inapplicable here in that it
arose in an unfair labor practice context and deals
with the entitlement of economic strikers to jobs
when they become available; it is not concerned with
the voting eligibility of economic strikers, which is
governed by Section 9(c)(3) of the Act.11 In order to
determine the voting eligibility of the above individu-
als, the appropriate issues to be decided after a
hearing are whether they were economic strikers,
and, if so, whether the facts and circumstances show
such affirmative action prior to the dates of casting
their respective ballots 12 as would bring their status
as such to an end.13 If such action occurred, e.g., by
termination for valid economic reasons, it is irrele-
7 MacAllister Machinery Co., Inc., 194 NLRB 928 , cited by our dissenting
colleague , is distinguishable on its facts. There the Board held that the
leadmen could not be part of the unit because of their supervisory status in
spite of the Stipulation for Certification Upon Consent Election which
included them in the unit . But in that case the question was timely raised on
challenges by a party seeking disposition of the issue , whereas here no party
has challenged any of the ballots cast on the ground that the voter was an
independent contractor . N.LR.B. v. A. J. Tower Company, 329 U S 324.
9 See , e.g., George Transfer & Rigging Co., Inc., 208 NLRB No. 25
(Members Fanning and Jenkins dissenting); Contractor Members of the
Associated General Contractors of California, Inc., 201 NLRB No. 36
(Member Kennedy dissenting).
9 W Wilton Woo4 Inc., 127 NLRB 1675; Pacific Tile and Porcelain
Company, 137 NLRB 1358.
10 The Laidlaw Corporation, 171 NLRB 1366
11 See Wahl Clipper Corporation, 195 NLRB 634, where the Board
rejected the analogous contention that replaced economic strikers should be
eligible to vote in an election held more than 12 months after the
commencement of an economic strike if they could be shown to have a
reasonable expectancy of reemployment.
12 Plymouth Towing Company, supra.
13 W. Wilton Wood, Inc., supra at 1677; Pacific Tile and Porcelain
Company, supra.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vant whether they were economic strikers, because
they would then not be eligible to vote in any event.
ORDER
It is hereby ordered that a hearing be held for the
purpose of receiving evidence to resolve the issues
raised by the. challenges to the ballots of William
Bricker and Walter Johnson, as well as Maureen
Beatty, Dean Dunn, Howard Greene, Glen Hagen,
Edwin Hamlet, Bobby Haston, Melvin Hoopingar-
ner, Jeff Jackson, Bobby Lee, Louis (Tony) Salmela,
Joe Scott, Charles Smith, Randall Stratton, James
Vance, and Charles Wells; by Petitioner's Objection
1 (as it relates to Charles Smith); by Employer's
Objections 1, 2, 3, and 4; and by the "Additional
Alleged Objectionable Conduct," in conjunction
with the hearing in Case 25-CA-5817, in accordance
with the Regional Director's order consolidating
these cases for purposes of hearing. As directed by
the Regional Director, such hearing shall be held
before an Administrative Law Judge to be designat-
ed by the Chief Administrative Law Judge. In the
event the unfair labor practice proceeding is disposed
of prior to the hearing, a Hearing Officer will be duly
designated to hear the representation matter.
IT IS FURTHER ORDERED that the Administrative
Law Judge, or Hearing Officer, designated for the
purpose of conducting such hearing shall prepare
and cause to be served on the parties a report
containing resolutions of credibility of witnesses,
findings of fact, and recommendations to the Board
as to the disposition of said challenges and objec-
tions. Within the time prescribed by the Board's
Rules and Regulations, any party may file with the
Board in Washington, D.C., eight copies of excep-
tions thereto. Immediately upon the filing of such
exceptions, the party filing the same shall serve a
copy thereof on each of the other parties and shall
file a copy with the Regional Director. If no
exceptions are filed thereto, the Board will adopt the
recommendations of the Administrative Law Judge
or Hearing Officer.
IT IS FURTHER ORDERED that the above-entitled
matter be, and it hereby is, referred to the Regional
Director for Region 25 for the purpose of arranging
such hearing and that the said Regional Director be,
and he hereby is, authorized to issue notice thereof.
MEMBER KENNEDY, concurring in part and dissenting
in part:
I agree with my colleagues that a hearing is
necessary to resolve the various issues as to the status
and eligibility of William Bricker, Walter Johnson,
Maureen Beatty, Dean Dunn, Howard Greene, Glen
Hagen, Edwin Hamlet, Bobby Haston, Melvin
Hoopingarner, Jeff Jackson, Bobby Lee, Louis
(Tony) Salmela , Joe Scott, Charles Smith, Randall
Stratton, James Vance, and Charles Wells. I also
agree with my colleagues that a hearing is necessary
to resolve Petitioner's Objection 1 and Employer's
Objections 1, 2, 3, and 4, as well as the "Additional
Alleged Objectionable Conduct."
Unlike my colleagues, I would also direct a hearing
on the issue as to whether the owner-operator
truckdrivers and nonowner-drivers are independent
contractors. The Employer has excepted to the
Regional Director's conclusion that these individuals
are not independent contractors. In my view, this
issue has neither been investigated nor litigated and
there is no basis for the Regional Director's finding.
My colleagues are unwilling to inquire as to whether
these individuals are independent contractors even
though these drivers constitute a majority of the
persons in the unit. In my view, such inquiry is
mandatory since under our Act there can be no
obligation to bargain by this Employer if, in fact, the
drivers are not employees within the meaning of
Section 2(3) of the Act. The language of this Board in
MacAllister Machinery Co., Inc., 194 NLRB 928, with
respect to supervisors is equally applicable to the
drivers here if they, in fact, are independent
contractors. We said in the MacAllister Machinery
case:
Contrary to the Respondent's contention, and
in agreement with the General Counsel, the intent
of the parties to the stipulation is not relevant
here since the parties cannot stipulate that
supervisors be included in the unit when they are
expressly excluded by the Act. Whether certain
individuals are employees or supervisors is deter-
mined by the application of the facts to the
statutory criteria contained in Section 2(11) of the
Act and not by any agreement between the
parties. Tribune Co., 190 NLRB No. 65 (1971), is
inapposite since it involved the inclusion or
exclusion of employees and not individuals, as
here found by the Board to be supervisors.
I cannot understand the refusal of my colleagues to
include the independent contractor issue within the
scope of the hearing they are directing. If they would
do so, it would avoid a likelihood of a repetition of
the debacle presented to this Board in Barwood, Inc.,
209 NLRB No. 8. A Board majority held that we
were obliged to dismiss an 8(a)(5) complaint because
the Board had issued its certification in a unit of
cabdrivers who were found to be independent
contractors. Member Fanning dissented and would
have reopened the representation case in which the
certification had issued and would have directed a
further hearing on the issue as to whether the
ECK MILLER TRANSPORTATION CORP.
cabdrivers were employees . It seems to me that the
orderly way to proceed in this case is to resolve the
status of the individuals in the instant case before
issuing any certification.
In my view , the Employer's agreement , as part of
the strike settlement , that it would not assert any
legal claim before the Board that owner-operators or
255
nonowner-drivers are independent contractors is
insufficient to support a finding that the individuals
are employees . Such agreement is no more binding
upon this Board than the agreement in the MacAllis-
ter Machinery case . This is particularly true where it
appears that the bulk of the unit may well be
independent contractors.