Eldon Miller, Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1953

107 N.L.R.B. 557 (N.L.R.B. 1953)

ELDON MILLER, INC. 557
ELDON MILLER, INC. and CHAUFFEURS., TEAMSTERS AND
HELPERS LOCAL UNION NO. 238, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL, Petitioner.
Case No. 18-RC-1774. December 24, 1953
SUPPLEMENTAL DECISION AND ORDER
On April 6 , 1953 , the Board issued a Decision and Direction
of Election in the above -entitled case in which it found certain
"conditional sales" drivers to be employees of the Employer
and directed an election in a unit composed of truckdrivers,
including "maintenance supervisors ," but excluding "owner-
lease" drivers and "substitute " drivers.'
Pursuant to the Decision and Direction , an election was held
on April 26, 1953, at which time all ballots were challenged,
including those of three " substitute " drivers who had presented
themselves at the polls . In the report on challenged ballots,
dated May 8, 1953 , the Regional Director recommended that
the Employer ' s challenges to the ballots of the three "sub-
stitute" drivers be sustained and the challenges to all other
ballots be overruled . The Petitioner excepted to the Regional
Director ' s recommendation regarding the three " substitute"
drivers.
In considering the Regional Director ' s report on challenged
ballots , the Board found it necessary to reopen the record for
the purpose of taking additional evidence on the relationship of
the Employer and the "conditional sales " drivers respectively
to the "substitute " drivers , and the former's control over the
hire, tenure, and working conditions of the latter. The Board
therefore remanded the case to the Regional Director by order
dated July 31, 1953, for the conduct of a supplemental hearing.
Pursuant to the Board ' s order, a supplemental hearing was
held on August 27 and September 3, 1953. At the beginning of
the hearing, the Petitioner requested leave to withdraw its
exceptions to the Regional Director ' s recommendations. The
request was referred to the Board , and the hearing was ad-
journed for 1 week pending the Board ' s action thereon. By
order dated August 28 , 1953 , the Boardden = edthe request.
The facts which became part of the record after the election
was held . disclosed , among other things, that there were
several "substitute " drivers engaged in operating "conditional
sales" drivers ' trucks on a 6 day week, 12 -hour day, basis.
When some or all of these "substitutes " thus engaged at the
time of the election presented themselves at the polls, the
Employer challenged their ballots .2 The Regional Director
1103 NLRB 162.7.
2 The Employer also challenged the ballots of all the "conditional sales" drivers. Only
one ballot was cast which was not challenged by the parties. To preserve secrecy, the
Board agent challenged that ballot.
107 NLRB No. 117.
;;sva 0 -
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that the challenges be sustained in view of the
Board's findings in the original decision that "substitute"
drivers could not participate in the election because, on the
facts then known to the Board , " substitute " drivers were em-
ployed on a casual , intermittent , or irregular basis. The sub-
sequently presented facts noted above , however, establish
that this finding as to the "casual " nature of the "substitutes' •'
employment was inaccurate . Their existence establishes also
that some determination must be made of the issue as to the
"employee" status of these "substitute " drivers which was
originally presented to the Board.
In attempting to determine the relationship of these "sub-
stitutes" to the Company , a detailed consideration of the manner
in which such relationship came about and howit was maintained
and terminated persuaded the Board that it was necessary to
reconsider the "employee " status issue involving the "con-
ditional sales" drivers , as well. More specifically , it appears
that "substitute " drivers are engaged under the following
conditions.
The maintenance of the Company ' s hauling schedule frequently
necessitates the operation of the " leased" trucks for periods
exceeding 12 hours a day. As Interstate Commerce Commission
safety regulations prohibit any one driver from operating a
truck for more than 12 hours in any 24-hoar period , a "con-
ditional sales" driver , or other regular " lease" driver, could
not fulfill the hauling schedule by himself . It is in these
circumstances , in order to drive the "extra" shift , that the
extra or "substitute " drivers, above described , are em-
ployed . Their employment relationship in turn , comes into
being , and the terms of such employment are established,
as follows.
The Company notifies the "conditional sales" driver of the
necessity for the more than 12 -hour operation of the truck, and
this invokes the driver ' s obligation , under the lease agreement,
to furnish an acceptable extra or "substitute " driver.' The
"conditional sales " driver then designates an individual he
regards as acceptable and refers such individual to the Company
for the latter ' s approval. Once approval is obtuined, the
"conditional sales " driver hires the "substitute" at a rate
of pay determined solely by the "conditional sales" driver,
and paid by him out of the hauling fees given the driver by
the Company under the " lease" agreement . The "conditional
sales " driver is also solely responsible for the payment of
social security and withholding taxes for his "substitute." He
is accountable for his " substitute ' s" work performance and
any deficiency thereof may subject the " conditional sales"
driver to a breach -of-contract claim by the Company. The
3As noted in the original decision, the lease agreement Provides that the "conditional
sales" driver must furnish a competent " substitute " to operate the truck at times when
the driver is unable to operate it himself.
ELDON MILLER, INC 559
"conditional sales" driver also possesses an unqualified right
to discharge a "substitute."4
Upon the foregoing facts , it is clear that under the "lease"
agreements , as they are administered , the "conditional sales"
drivers are vested with , and exercise , either jointly with the
Company or independently thereof, the kind of powers
exercised by "employers ," rather than by ordinary "em-
ployees ." The possession of such "employer " powers by the
"conditional sales" drivers obviously renders vulnerable
our original determination that these drivers are "employees"
within the meaning of the Act. We must, therefore , reappraise
their status.
As noted in the original decision , the specific provisions
of the "lease " agreements express the intent of the parties
to create an "independent contractor " relationship . Although
this factor is, of course , not determinative of the legal issue,
it is one which we regard as a persuasive reason for re-
solving a close case , such as is here presented , in favor of the
expressed intent of the parties . To the various indicia of "in-
dependent contractor " status originally noted, we now find
that , additionally , a "conditional sales" driver enjoys the kind
of "employing " power in manning the vehicles which "in-
dependent contractors " usually enjoy . Moreover, we are now
convinced that we gave too muchweightto certain other factors
which persuaded us originally to find that an "employer-
employee" relationship existed . Thus, for example , we found
that the limited right of possession of the vehicles given to
"conditional sales" drivers weighed heavily in favor of an
"employee" relationship . However , in view of the evidence
establishing that the Company ' s business frequently requires
use of the vehicle for 24 hours a day, we cannot now regard
that limitation on the right of possession as an unreasonable
provision in an independent contractor arrangement calling
for the "lease " of a vehicle.
This is not to say that there is nothing in the parties' re-
lationship which is indicative of an "employer -employee"
status . But where, as here , we must make a definitive reso-
lution, we must decide whether the factors supporting one
side of the question outweigh those supporting the other.5 We
are convinced , upon reconsideration , that the factors indic-
ative of an -independent contractor" relationship outweigh
those indicative of an "employer - employee" relationship.
Upon the entire record , we now find , therefore , that the
"conditional sales" drivers are "independent contractors"
and that the " substitute " drivers engaged in operating their
trucks are their employees.
4Company notification to the "conditional sales" driver of a "substitute 's" incompetency
or deficiency in work performance may, of course, result in the discharge of the " substitute"
by the "conditional sales" driver The ultimate power of discharge , however , is in the
"conditional sales" driver.
5Cf Malone Freight Lines , Inc., 106 NRLB 1107.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing findings would ordinarily require the ex-
clusion of individuals affected from any unit found appropriate.
If we did this here, however, the unit which would remain
would be so much smaller and so substantially different from
that originally sought by the Union that, on this record, we do
not believe that entertainment of the petition would serve any
useful purpose.6
In view of the foregoing decision, we shall set aside the
election , without ascertaining the results thereof, and shall
dismiss the petition. The Regional Director for the Eighteenth
Region is hereby directed to destroy all the ballots cast in
the April 26, 1953, election.
[The Board set aside the election of April 26, 1953, and
dismissed the petition.]
6Oklahoma Trailer Convoy, Inc., 99 NLRB 1019.
TERRI LEE, INC. and MRS. MARCELLA FREED
VI GRADWOHL; TERRI LEE, INC.; TERRI LEE OF CALI-
FORNIA; and CONNIE LYNN MANUFACTURING CORPORA-
TION and SOUTHERN CALIFORNIA OUT-OF-TOWN
DEPARTMENT OF THE INTERNATIONAL LADIES'
GARMENT WORKERS' UNION, A. F. OF L. Cases Nos. 21 -
CA-1593 and 21-CA-1622. Decen*iber 28, 1953
DECISION AND ORDER
On June 18, 1953, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above -entitled proceeding, finding
that the Respondents had engaged in and were engaging in cer-
tain unfair labor practices and recommending that they cease
and desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondents had not en-
gaged in certain other unfair labor practices alleged in the com-
plaint and recommended that these allegations be dismissed.
Thereafter, the Respondents and the charging Union each filed
exceptions to the Intermediate Report, and the Respondents
filed a supporting brief.
The Board has reviewed the rulings of the trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The Board has considered the Intermediate Report,
the exceptions and brief, and the entire recordin the case, and
hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, except to the extent that they are incon-
sistent herewith.
1. With respect to the discharges of October 9, 1952, we
disagree with the Trial Examiner's findings that Respondents
107 NLRB No. 141.