H&W Motor Express

National Labor Relations Board - Board Decisions

Jul 31, 1984

271 N.L.R.B. 466 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H&W Motor Express, Inc., Lin Rol Labor Indus-
tries, Inc. and Teamsters Local Union No. 41,
Petitioner. Case 17-RC-9544
31 July 1984
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 12 October 1983 the Regional Director for
Region 17 of the National Labor Relations Board
issued his Decision and Direction of Election in the
above-entitled proceeding. The Regional Director
found that H&W Motor Express, Inc., herein
H&W, and Lin Rol Labor Industries, Inc., herein
Lin Rol, were joint employers' and the following
employees constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time employees
employed by H&W and Lin Rol at the facility
located at 4401 Gardner, Kansas City, Missou-
ri, but excluding sales personnel, professional
employees, guards and supervisors as defined
in the Act.
Thereafter, in accordance with Section 102.67 of
the Board's Rules and Regulations, both H&W and
Lin Rol filed timely requests for review of the Re-
gional Director's decision. In their requests for
review, both H&W and Lin Rol contend that they
are not joint employers of the petitioned-for em-
ployees 2 but rather that the employees sought by
the petition are solely the employees of Lin Rol,
and have merely been assigned to H&W.3 By tele-
graphic order dated 9 November 1983 the National
Labor Relations Board granted both requests for
review limited to the joint employer issue.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reviewed the entire record in this
case, including the briefs of the parties, and makes
the following findings.
' The Petitioner sought a unit of employees employed by H&W and
Lin Rol asserting that they are joint employers of the employees per-
forming warehouse and driver functions at H&W's Kansas City terminal.
2 Review was also sought as to the Regional Director's finding that
employee Swift was nonsupervisory and should be included in the unit.
I The Allied Services Division, Brotherhood of Railway and Airline
and Steamship Clerks, Trade Handlers, Express and Station Employees,
AFL-CIO, herein BRAC, was permitted to intervene based on the exist-
ence of a collective-bargaining agreement with Lin Rol. That agreement
had covered the presently petitioned-for unit employees. At the hearing,
BRAC concurred with H&W and Lin Rol that those entities do not con-
stitute a joint employer.
271 NLRB No. 80
Lin Rol is a labor broker providing experienced
labor and truckdrivers to employers in 12 locations
throughout the Midwest. Its corporate offices are
located in St. Peters, Missouri, where it has been in
business for approximately 3 years.
H&W Motor Express, Inc. is a common carrier
which operates in an eight-state area throughout
the Midwest. The Company's home office is in Du-
buque, Iowa, from which it dispatches its long-haul
road drivers.
The operations of H&W in Kansas City began in
October 1982 when H&W purchased certain assets
and took over certain operations from Kroblin
Transportation, a competitor. At the time of the
takeover, Lin Rol was providing service to Kroblin
at a facility acquired by H&W, at issue herein.4
Kroblin had contracted with Lin Rol for Lin Rol
to provide a terminal manager and five drivers to
meet Kroblin's local transport needs.5 Rather than
arrange for a new crew of employees on takeover
of Kroblin, H&W executed an agreement with Lin
Rol for the continued staffing of the terminal by
Lin Rol employees.6
The agreement executed between H&W and Lin
Rol states, in part, that:
1.... [Lin Rol] shall furnish to [H&W]
such drivers as [H&W] may require to operate
motor vehicle equipment owned or leased by
[H&W]. All drivers so furnished shall be com-
petent, experienced, and satisfactory to
tH&W]. ...
2.... [Lin Rol] drivers shall ... observe
and comply with such safety regulations as
[H&W], the Interstate Commerce Commission
and/or Department of Transportation and/or
the various states may from time to time re-
quire .... At the request of [H&W] and
upon receipt of a written complaint specifying
that an employee of [Lin Rol] has been dishon-
est, drunk, or reckless, resulting in a serious
accident while on duty or the carrying of an
unauthorized passenger, then [Lin Rol] shall
remove such driver from the services of
[H&W] and furnish a substitute as soon as it is
reasonably possible to do so.
4 Though the address has changed to 4401 Gardner Avenue, none of
the parties disputes that this is the same local trucking operation formerly
located on Liberty Street in Kansas City, Missouri.
5 The drivers at that terminal were covered by the Lin Rol-BRAC col-
lective-bargaining agreement identified in fn. 3.
6 At the time of the hearing, the complement of employees provided
by Lin Rol to H&W included the terminal manager and six short-haul
city drivers. In addition, H&W has two of its own employees at the ter-
minal. Both H&W employees are salesmen who are primarily responsible
for soliciting new business and servicing existing accounts.
466
H&W MOTOR EXPRESS
3. [Lin Rol] is the employer of drivers as are
utilized by [H&W] and [Lin Rol] with respect
to drivers furnished to [H&W] shall:
(a-f) make all proper payments of wages,
benefits, taxes, workmen's compensation, [etc.]
and maintain required records.
6. [H&W] with respect to the drivers fur-
nished by [Lin Rol] shall:
(a-d) maintain reports and records to comply
with government regulations and idemnify
[Lin Roll.
9. The term of this agreement is indefinite
and will run until cancelled by either party
upon thirty (30) day's notice prior to the pro-
posed effective date of termination.
The Kansas City facility is used in the following
manner: H&W's road drivers deliver and pick up
long-haul freight to and from the Kansas City ter-
minal. The Lin Rol-supplied city drivers pick up
and deliver local freight for transport within the
city as well as for coordinated transport by road
drivers to out-of-town destinations. The city driv-
ers also deliver the long-haul freight, brought to
Kansas City by the road drivers, to the freight's
local Kansas City destination.
The terminal in issue is managed by William
Gofta, a Lin Rol-supplied individual. Prior to
H&W's takeover of Kroblin, Gofta acted in a simi-
lar capacity under contract from Lin Rol to Krob-
lin. Gofta is primarily responsible for the day-to-
day operations at the facility. Gofta supervises the
six Lin Rol-supplied city drivers on a daily basis:
he assigns work; can independently assign over-
time; can grant sick leave or time off; and can hire,
discipline, suspend, and fire employees.7 Addition-
ally, Gofta participates, on behalf of Lin Rol, in
the administration of contract grievances involving
Lin Rol and BRAC. Gofta also answers phones,
forwards information, and processes paperwork.
Gofta is assisted by Bert Swift, a Lin Rol-sup-
plied employee. Swift is primarily responsible for
clerical work, but also implements Gofta's orders
in the evening after Gofta has left.8
The Kansas City facility is apparently leased by
H&W. All of the dock and office equipment is
owned by H&W as are the vehicles driven by Lin
Rol city drivers. The facility and equipment bear
H&W signs. Gofta utilizes a business card which
7 Gofta testified that he had authority to make such decisions on his
own but may contact Lin Rol to make them aware of or seek advice on
serious matters.
I The Regional Director found Swift to be nonsupervisory and, there-
fore, included him in the unit. We denied the Employers' requests for
review of this finding.
identifies him as the terminal manager for H&W
Motor Express. He is also listed in the H&W direc-
tory as the Kansas City "contact."' Gofta speaks
with H&W's central dispatch in Dubuque on a
daily basis to coordinate freight transport. Gofta
uses a gasoline credit card given to him by H&W,
and he entertains potential H&W clients, for which
he is reimbursed. He has attended at least one
meeting conducted by H&W concerning operation-
al procedures. He also acts as H&W's representa-
tive regarding customer complaints.
Gofta has, on occasion, signed H&W road driv-
ers' timecards to show "down time" while at the
Kansas City terminal. He also receives calls from
road drivers stuck at weigh stations due to over-
weights or overlengths. He responds by going to
the station and paying the fine. He is reimbursed
for these expenditures and he indicated that he did
this simply as an accommodation to H&W.
Road driver-city driver contact is minimal.
There is a common bulletin board at the facility on
which Gofta posts both H&W and Lin Rol notices
for road drivers and city drivers, respectively.
Road equipment and city equipment are not ordi-
narily exchanged between road drivers and city
drivers. The instances when this occurs is limited
to breakdowns, relief duty, and local routing of a
full load.
The joint employer concept recognizes that two
or more business entities are in fact separate but
that they share or codetermine those matters gov-
erning the essential terms and conditions of em-
ployment.1 0 Whether an employer possesses suffi-
cient indicia of control over petitioned-for employ-
ees, employed by another employer, is essentially a
factual issue. Thus, for H&W to be found a joint
employer of the Lin Rol-supplied employees it
must be shown that H&W possesses sufficient indi-
cia of control over those employees, and meaning-
fully affects matters relating to their employment
relationship.
The role played by Terminal Manager Gofta is
an important factor in determining whether H&W
possesses sufficient indicia of control over the Lin
Rol-supplied employees to be found a joint em-
ployer. It is undisputed that Gofta is a Lin Rol-pro-
vided supervisor who supervises the Lin Rol-sup-
plied employees. These facts, on their face, do not
provide a foundation to support joint employer
9 Testimony of H&W's vice president of operations and labor indicated
that the H&W directory includes the names and numbers both of persons
employed by H&W as well as those of persons not employed by H&W
but who may be cartage agents, dray agents, or who may staff call sta-
tions utilized by H&W.
10 Boire v. Greyhound Corp., 376 U.S. 473 (1964); NLRB v. Browning-
Ferris Industrries, 691 F.2d 1117, 1121-1125 (3d Cir. 1982), enfg. 259
NLRB 148 (1981).
467
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status. Nor do we find that the activities Gofta per-
forms on behalf of H&W provide a basis for a joint
employer finding. Thus, while Gofta uses H&W
business cards, is listed in H&W's directory, pays
road drivers' fines, posts H&W notices, and enter-
tains potential H&W clients, these functions suggest
that Gofta serves H&W in a representative capac-
ity primarily with respect to business matters.
However, Gofta's limited actions, ostensibly as an
agent of H&W, are not for the purpose of affecting
the employment relationship of the Lin Rol em-
ployees. Therefore, Gofta's actions are not indica-
tive of H&W control over Lin Rol employees l l
and are distinct from his day-to-day supervision of
the Lin Rol employees on behalf of Lin Rol. Sig-
nificantly, Gofta's authority to assign work and
overtime; grant sick leave or time off; hire, disci-
pline, suspend, and fire employees; and his role to
participate in grievance procedures, all stem from
his capacity as a Lin Rol supervisor. Gofta reports
to and checks with Lin Rol concerning employee
employment matters. Gofta does not have to con-
tact or gain permission from H&W to take action
relating to labor relations.'2 Additionally, the Lin
Rol employees all receive a Lin Rol booklet de-
scribing their terms and conditions of employment.
H&W's ability to meaningfully affect matters re-
lating to the employment of the Lin Rol employees
is limited. Though, as noted above, H&W requires
that Lin Rol employees meet certain standards, and
H&W may request the removal of a driver, such
powers are of diminished importance when closely
examined. The primary employee requirements in
the agreement relate to the employee's compliance
with safety regulations. H&W's ability to request
removal of a Lin Rol city drivers is limited to that
driver's assignment by Lin Rol to the H&W facili-
ty. On such a request for removal, Lin Rol normal-
ly removes the employees from assignment to that
customer. If it does not find reason for termination
within its company guidelines, it will either reas-
sign the employee to another company or transfer
him to another location. H&W cannot request that
Lin Rol fire an individual employee. In fact, the
terms of the Lin Rol-BRAC collective-bargaining
agreement have covered such matters.
Clause three of the Lin Rol-H&W agreement
identifies Lin Rol as the employer of the city driv-
ers. As such, it makes all payments of wages and
II See Walter B. Cooke. Inc., 262 NLRB 626, 641-642 (1982); O'Sulli-
van, Muckle, Kron Mortuary, 246 NLRB 164, 165 (1979).
a The present case is distinguishable from CPG Producets Corp., 249
NLRB 1164 (1980), cited by the Regional Director. In CPG the record
revealed that Kenner "exerts substantial control over the day-to-day ac-
tivities of the drivers leased from Schnabel's." This supported a joint em-
ployer finding. In the present case H&W does not exert substantial, nor
even meaningful, control over the day-to-day activities of the drivers
leased from Lin Rol.
benefits, and withholds required taxes. While the
clause itself is not controlling, the parties have
acted in a manner consistent with the identified
separation of duties and responsibilities. Thus,
H&W concerns itself with the transportation of
freight while Lin Rol handles matters relating to
the terms and conditions of employment of the pe-
titioned-for employees.
Based on the foregoing, it is clear that Lin Rol
through its manager, Gofta, exercises control over
the day-to-day labor relations of its employees at
H&W's facility and determines, apart from H&W,
the terms of the employment relationship. In our
view, H&W does not possess sufficient indicia of
control, nor does H&W meaningfully affect the
employees' employment relationship to a degree to
be found a joint employer of the Lin Rol employ-
ees.13 Accordingly, we find the following unit ap-
propriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees
employed by Lin Rol Labor Industries, Inc., at
the facility located at 4401 Gardner, Kansas
City, Missouri, but excluding sales personnel,
professional employees, guards and supervisors
as defined in the Act.
DIRECTION
As the employees herein cast their ballots based
on the Regional Director's finding that a joint em-
ployer relationship existed, we direct that the im-
pounded ballots be discarded and that a new elec-
tion be conducted should the Petitioner desire to
proceed to an election.
The case is remanded to the Regional Director
for Region 17 for the purpose of conducting an
election pursuant to his Decision and Direction of
Election, as modified herein, except that those eli-
gible to vote are those in the unit who were em-
ployed during the payroll period ending immedi-
ately before the date below.
To ensure that all eligible voters have the oppor-
tunity to be informed of the issues in the exercise
of their statutory right to vote, all parties to the
election should have access to a list of voters and
their addresses that may be used to communicate
with them. Excelsior Underwear, 156 NLRB 1236
(1966); NLRB v. Wyman-Gordon Co., 394 U.S. 759
(1969). Accordingly, it is directed that an eligibility
list containing the names and addresses of all the
eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date
of this Decision on Review and Direction of Elec-
's See Laerco Transportation, 269 NLRB 324 (1984); Union Carbide
Building Co., 269 NLRB 144, 145 (1984).
468
H&W MOTOR EXPRESS
tion. The Regional Director shall make the list
available to all parties to the election. No extension
of time to file this list shall be granted by the Re-
gional Director except in extraordinary circum-
stances. Failure to comply with this requirement
shall be grounds for setting aside the election if
proper objections are filed.
469