Eldon Miller, Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1953

103 N.L.R.B. 1627 (N.L.R.B. 1953)

ELDON MILLER, INC. 1627
but shall direct elections in the following voting groups at the Em-
ployer's Riverbank, California, plant :
(1) All maintenance and tooling department electricians, substa-
tion operators , and instrument repairmen, including helpers and ap-
prentices in those classifications, but excluding all other employees
and all supervisors within the meaning of the Act .3
(2) All production and maintenance employees, including inspec-
tors and laboratory assistants , but excluding the employees in voting
group (1), office clerical employees, watchmen, guards, firemen, pro-
fessional employees, and all supervisors within the meaning of the
Act.
If a majority of the employees in voting groups (1) and (2) select
the same labor organization, the employees in voting group (1) will
be deemed to have indicated their desire to form part of the overall
unit, and the Regional Director conducting the election is instructed
to issue a certification of representatives to the labor organization
selected by the employees of the two groups, which the Board in such
circumstances finds to be a single unit appropriate for the purposes
of collective bargaining. If a majority of the employees in voting
group (1) selects a labor organization which is not selected by the
employees in voting group (2), the employees in voting group (1)
will be deemed to have indicated their desire to constitute a separate
appropriate unit, and the Regional Director conducting the election
is instructed to issue a certification of representatives to the labor
organization selected by the employees in that group, which the
Board in such circumstances finds to be a separate unit appropriate
for collective bargaining purposes. If the employees in either or both
of the voting groups do not select a labor organization, the Regional
Director conducting the election is instructed to issue a certificate
of results of election with respect to such group or groups.
[Text of Direction of Elections omitted from publication in this
volume.]
' The record indicates that some of the leadmen are supervisors , but does not specify
which ones are and which ones are not We shall, therefore, permit the leadmen to vote
subject to challenge.
ELDON MILLER , INC. and CHAUFFEURS , TEAMSTERS AND HELPERS LOCAL
UNION No. 238, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETI-
TIONER. Case No. 18-RC-1774. April 6, 1953
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Clarence A. Meter, hearing
103 NLRB No. 147.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the act.
4. The Petitioner seeks a unit of truckdrivers engaged at the Com-
pany's Coralville and Cedar Rapids, Iowa, terminals, including em-
ployees classified as maintenance supervisors, but excluding office
clericals, plant clericals, mechanics, guards, and supervisors as defined
in the Act. The Company claims that, with the exception of one
driver of a company-owned tractor, all of the truckdrivers sought to
be represented are independent contractors or employees of independ-
ent contractors, and the two "maintenance supervisors" are supervisors
within the meaning of the Act. It therefore moves dismissal of the
petition. For the reasons noted below, the motion is denied.
The Company, operating under an Interstate Commerce Commis-
sion certificate of convenience and necessity, is an Iowa corporation
engaged in the business of transportation of gasoline and related
petroleum products by motor truck. It operates, among others, the
two terminals here involved. In these operations, the Company uti-
lizes approximately 24 tractors. The Company holds title to 20 of
the 24 tractors, subject to certain conditional sales agreements (dis-
cussed below) with the truckdrivers here sought to be represented.
It owns 1 tractor outright, and it leases the other 3 tractors from cer-
tain individual owners under written lease agreements also discussed
below. The Company owns outright all of the trailers which are
sometimes attached to the tractors.
The contention as to the absence of an employer-employee relation-
ship embraces specifically those individuals (other than the one who
operates the one tractor the Company owns outright) who drive these
tractors. The validity of this contention turns on the terms of the
conditional sales and/or lease agreements' pursuant to which the
1 In the discussion which follows , we shall use the term "conditional sales" driver agree-
ments to refer to the situation in which drivers operate tractors they are purchasing from
the Company under conditional sales contracts . We shall use the term `owner -leaile"• driver
agreements to refer to the situation in which owners of vehicles hire the same out to the
Company.
ELDON MILLER, INC. 1629
drivers here in question operate the tractors. Because the terms of
the "conditional sales" driver agreements, on the one hand, and the
"owner-lease" driver agreements, on the other, are substantially differ-
ent in operative effect, we shall discuss each group separately.
The "conditional sales" driver agreements, which affect the status
of the large majority of the drivers here involved, all contain sub-
stantially the same operative provisions. In general terms, one por-
tion of the agreement, referred to herein as the "sales" portion,' states
the purchase price of the vehicle and the terms of payment of the
purchase price. Under this portion, the driver-purchaser makes a
down payment, and agrees to pay the Company ( seller ) a stated
amount per month out of the earnings from the Company under the
"lease" agreement, until the purchase price is paid in full. Through-
out the life of the contract the Company retains title to the vehicle,
and requires that it be registered officially in the Company's name.
In the other portion of the agreement, referred to herein as the "lease"
agreement, the driver-purchaser agrees to lease the vehicle to the
Company for its exclusive use, to maintain and repair the vehicle,
pay for all gas, oil, and extra tools, and obtain and/or pay for all
licenses for its operation except the initial ones,3 in return for a stated
compensation based upon the number of loads hauled. The agree-
ment as a whole is subject to termination by either party upon 60
days' notice, in which event the Company has the right to "purchase
any and all of the equipment leased by the agreement," upon a tender
of a price provided for in a schedule attached to the contract.
The relationship of the parties is described in the contract as that
of "independent contractors," and indeed certain detailed provisions
incorporated therein are characteristic of such relationship. Included
among these are the specifications with respect to the driver's respon-
sibility for cargo shortages, traffic lines, and certain costs of operation
of the vehicle, such as maintenance , repairs, license, and medical ex-
amination fees. Likewise, characteristic of such relationship is the
fact that the Employer makes no income-tax or society-security
deductions.
There are, however, other provisions of the contract which, despite
the foregoing, are consistent only with a view that the relationship of
the Company to the driver-purchaser is that of employer-employee.
Under the specific terms of the contract, the Company requires the
personal services of the driver-purchaser for the operation of the
"leased" vehicle on the Company's business except during periods
of illness, injury, or vacation, and thus precludes him from obtaining
a
In some instances this is a separate document.
The initial license fees are paid by the Company.
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other employment as a driver .4 It further obligates the driver
to accept all work assignments made by the Company, to conform
to all "applicable" company policies, to be subject to the orders of the
Company's dispatcher, and to transport the Company's loads over
routes designated by the Company when so requested .5
The contract terms also impose the kind of limitations on the use of
the vehicle which are wholly inconsistent with a pure lessor-lessee
arrangement. Thus, the contract requires that the vehicle be parked
on company premises when not in use on company business, and that it
be subject to assignment to other branches of the Company's opera-
tions. Further, as noted above, title to the vehicle is not only retained
by the Company, but is also registered officially in its name. It thus
appears that the "conditional sales" driver agreements place essential
control over the tractor and the details of the work performed in the
hands of the Company, and reserve but a partial and limited possession
of the tractor to the driver. It appears further that a substantial
majority of the Company's loads at these terminals are carried by
drivers operating under these agreements. Under the circumstances,
and in accord with established precedents we find that all "conditional
sales" drivers of the Company are its employees within the meaning
of Section 2 (3) of the Act, rather than independent contractors.
The "owner- lease" driver agreements. In general terms, these con-
tracts provide for the "lease" by the Company, for a stated period of
time, of a vehicle which the lessor owns outright. Although these
"leases" contain many provisions similar to those which we considered
above, there are certain significant distinctions. The specific terms
relating to the operation of the vehicle do not require the personal
services of the owner as a driver, and do not preclude his employment
elsewhere. Likewise, unlike the "conditional sales" contracts, these
"owner- lease" agreements place no specific limitations upon the lessor's
possession of the vehicle at times when it is not being used by the
Company, and contain no express reservation of any right to specify
I he routes of transportation, or to assign the tractor to other branches
of the Company's business.
As it thus appears that under these lease agreements the owners
I etain a substantial degree of independence in the operation of the
vehicle, we find, in accord with established precedent,' that the " owner-
* The driver may hire a substitute approved by the Company to work for him during
vacation or disability periods.
5 The Company points out that in practice it does not exercise its right to designate the
routes. However , the material fact here is the existence of the right, and the fact that it
can be exercised at will.
6 Nu-Car Carriers, Inc., 88 NLRB 75, enfd. 189 F. 2d 756 ( C. A. 8, 1951 ), cert . denied
342 U S. 919.
7 Oklahoma Trailer Convoy, Inc., 99 NLRB 1019 . See also , U. S. v.-Silk, 331 U. S. 704.
ELDON MILLER, INC. 1631
lease" drivers are not employees of the Company, but are, rather,
independent contractors.
'Remaining for consideration is the question concerning the composi-
tion of the unit. Apart from contentions with respect to the employee
status of the regular driver-operators, the Employer objects to the
inclusion, in any unit which may be found appropriate, of any drivers
hired by the lessors 8 under either of the two types of lease agreements
here involved. It claims that all "substitute" drivers are employees
of the lessors . We find merit in this contention, so far as the "substi-
tute" drivers hired by "owner- lease" drivers are concerned. We need
not, however, decide at this time whether "substitute" drivers hired
by "conditional sales" drivers are the latter's employees or the em-
ployees of the Company. For, even if we were to find that they were
employees of the Company, we would regard the sporadic and casual
nature of their employment as a sufficient reason for refusing them
the right to participate in the selection of a representative.9
As noted above, the Employer also objects to the inclusion of em-
ployees it classifies as "maintenance supervisors" in any unit found
appropriate, on the ground that they are supervisory employees with-
in the meaning of the Act. The record shows, however, that the
main function of these "maintenance supervisors" is to inspect and
grease the equipment, to change tires, and to perform related duties
with respect to maintenance of the "leased" and company-owned
vehicles. There is no evidence that they possess any authority of a
supervisory nature with respect to the work of any of the drivers.
We find, therefore, that "maintenance supervisors" are not super-
visory employees within the meaning of the Act.10 We shall accord-
ingly include them in the unit.
We find that all truckdrivers of the Employer employed at its
Coralville and Cedar Rapids, Iowa, terminals, including "conditional
sales" drivers and "maintenance supervisors," but excluding "owner-
lease" drivers, all "substitute" drivers, office clericals, plant clericals,
mechanics , guards , and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act 11
[Text of Direction of Election omitted from publication in this
volume.]
8 Herein called "substitute" drivers for convenience.
0 Doran Nut Sales Company, 102 NLRB 1437.
10 Silverwood's, 92 NLRB 1114.
13 The drivers who operate tractors under the "conditional sales " agreements shall be
Included in the unit , even though they are also coincidentally parties to "owner -lease"
arrangements with the Company.