General Transfer & Storage

National Labor Relations Board - Board Decisions

Oct 31, 1967

168 N.L.R.B. 30 (N.L.R.B. 1967)

30 DECISIONS OF NATIONAL
General Transfer , Inc., d/b/a General Transfer &
Storage; National Van Lines , Inc.' and Teamsters,
Chauffeurs , Warehousemen & Helpers , Local No.
542, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America,
Petitioner . Case 21-RC-10137
October 31, 1967
DECISION AND ORDER DISMISSING
PETITION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On July 11, 1966, Teamsters, Chauffeurs,
Warehousemen & Helpers, Local No. 542, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Petitioner
herein, filed a petition pursuant to Section 9 of the
National Labor Relations Act, as amended, seeking
to represent a unit consisting of all "drivers, helpers
and warehousemen" employed by General
Transfer, Inc., d/b/a Transfer & Storage, General
herein.
On September 8, 1966, the petition was adminis-
tratively dismissed by the Regional Director upon
a finding that under existing jurisdictional standards
the Board would not assert jurisdiction over the em-
ployer named therein. Upon appeal by the Peti-
tioner, the Regional Director revoked the order of
dismissal and thereafter, on December 28, 1966, a
hearing was held before Hearing Officer Barton W.
Robertson, at the conclusion of which, National
Van Lines, Inc., National herein, was named a joint
employer with General. At the same time the case
was transferred to the National Labor Relations
Board.
On March 17, 1967, National, which was not
served with notice of the hearing and therefore did
not participate therein, filed a motion and brief in
the form of special appearance, seeking dismissal of
National as a party in interest to the proceedings
and alleging that, in any event, National could not
be found to be a joint employer with General.
Thereafter, the Board ordered the record reopened
and remanded the proceedings to the Regional
Director for further hearings on the issues raised in
National's motion. On June 8, 1967, a hearing was
held, again before Barton W. Robertson, Hearing
Officer. National and the Petitioner have filed
briefs with the Board. No brief was filed by
General.
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
powers in connection with this case to a three-
member panel.
The name of the Employer appears as amended at the hearing
' It was stipulated that General receives approximately $2,000 per
LABOR RELATIONS BOARD
The Board has reviewed the Hearing Officer's
rulings made at both hearings and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds:
General is a California corporation engaged in
the transportation and storage of household articles
and similar commodities primarily within the State
of California. For the first 8 months of calendar
year 1966, its gross revenues amounted to approxi-
mately $67,000. Projecting this figure to the end of
the year, it was estimated that its gross revenues for
1966 would total roughly $75,000 or something
under $100,000, of which an estimated $20,000 to
$25,000 would be derived from commissions
earned on interstate shipments carried by General
as a contract agent for National.2
National is a corporation with its principal office
at Broadview, Illinois, and is engaged in the trans-
portation by motor vehicle of household goods and
related articles throughout the United States under
a certificate of convenience and necessity issued by
the Interstate Commerce Commission. Approxi-
mately 90 percent of its annual gross revenues is
derived through some 320 local commission agents,
including General, who operate under identical
sales, service, and hauling agreements in which they
agree to perform such services "as an independent
contractor, as circumstances may require or permit,
for the performance of which the Agent will engage
experienced and qualified personnel."
In contending that General and National are a
single employer, the Petitioner relies heavily upon
the agency agreement which governs the relation-
ship between General and National in the handling
of interstate shipments. That agreement, however,
makes no reference to General's local operations,
to its management policies and practices, or to its
hiring practices or employee relationships, other
than the requirement that in performing the services
called for in the agreement, the agent will employ
"experienced and qualified personnel." It gives Na-
tional no voice whatever in the corporate or busi-
ness affairs of General, and in no way invades the
right of General to act as it sees fit in discharging its
contractual obligations to National, other than
requiring compliance with the regulations of the In-
terstate Commerce Commission regarding the
qualifications of its interstate drivers, the proper
identification of vehicles used for interstate ship-
ments, and applicable licensing, insurance, and
safety regulations imposed by State or Federal
regulations with respect to such interstate ship-
ments. We find nothing in this agreement, or in the
record as a whole, that remotely suggests such a
degree of integration of the respective business af-
month in revenue from National for its line hauls, local booking, and local
storage services
168 NLRB No. 8
GENERAL TRANSFER & STORAGE 31
fairs of National and General as to make them a
joint or single employer of General's drivers, help-
ers, and warehousemen, as contended by the
Petitioner.3
The uncontroverted evidence herein shows that
the only connection between National and General
is that the latter performs a service for the former
for which it is paid a commission, and that such ser-
vice must be performed in accordance with certain
operative requirements imposed by law. These
requirements give the appearance of conferring
upon National a right of control over a portion of
General's operations. Actually, National demands
no more of its agents, including General, than that
the legal requirements governing the hauling of
goods in interstate commerce, by certified common
carriers, be fully observed. This explains, for exam-
ple, why the trucks or vans carrying interstate ship-
ments, must bear the name of the certified carrier,
in this case, National, why the drivers of those vehi-
cles must be cleared by such carrier as to their
physical fitness and driving competence, why such
drivers must file periodic trip logs or reports, and
why such carriers maintain certain personnel
records with respect to such drivers.
National does not hire these drivers nor does it
have anything to do with their employment other
than to implement the legal requirements governing
their fitness to do the job. They are employed by
National's agents, are paid by them, and receive
their instructions from them. They may, if they
choose, while on the road, call a National
dispatcher, or coordinator, to report available
space, any difficulties in locating the consignee of
a shipment, or for any of several similar reasons.
They may or may not wear National driver's
uniforms. It is not required. They may also attend
National's school for drivers but their employment
does not hinge on this. In these circumstances,
therefore, it cannot be said that National exercises
the necessary economic control over the drivers as
to make them National employees or point to com-
mon labor policy between National and General.
The buildings housing General's operations are
not shared by National. A large General sign is dis-
played thereon with a small National emblem in
close proximity. General is listed in the local
telephone directory as a National agent along with
two other National agents in the same vicinity.
Although National issues bulletins to its agents
from time to time, they are in no way related to
agency operations or business policies, but cover
only such matters as tariff changes and certain
operating techniques with respect to interstate ship-
ments. The agents, including General, obtain and
pay for all necessary licenses, permits, and in-
surance, and maintain close contact with the
nearest National dispatching or coordination office
merely for the purpose of obtaining interstate ship-
ments.
The record is replete with other similar details of
the operating relationship between National and
General, none of which permit any conclusion other
than that National and General are not a single or
joint employer, but completely separate and au-
tonomous business entities operating as principal
and agent in transporting goods in interstate com-
merce. But even if we were to find that National ex-
ercises significant control over hauling by General
on National's behalf, we would not find a joint em-
ployer relationship to exist on the particular facts of
this case. Thus, the record shows that General em-
ploys a single driver in connection with services
performed for National. It follows, therefore, that
National's influence in connection with the job per-
formance of that driver is too insignificant with
respect to the overall unit sought to warrant a find-
ing that General and National constitute joint em-
ployers for jurisdictional purposes. This being so,
the Petitioner cannot, for jurisdictional purposes,
rely upon National's volume of business to bring
General within the Board's jurisdiction and, since
it is abundantly clear from the record that General
does not meet the Board's minimal nonretail ju-
risdictional standards, the petition will be
dismissed.
ORDER
IT IS HEREBY ORDERED that the Petition for Cer-
tification of Representatives filed by the Petitioner
herein be , and it hereby is, dismissed.
' Pmb Plaza Amusement Company, 124 NLRB 428, Drivers, Chauf-
fears and Helpers Local No 639, et al (Poole's Warehousing Inc ), 158
NLRB 1281