Independent Rapid Trucking

National Labor Relations Board - Board Decisions

Nov 20, 1972

200 N.L.R.B. 367 (N.L.R.B. 1972)

INDEPENDENT RAPID TRUCKING 367
Stanley Levinson d/b/a Independent Rapid Trucking
and General Truck Drivers, Chauffeurs and Help-
ers Union Local 692, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 21-CA-9946
November 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On February 14, 1972, Administrative Law Judge 1
Allen Sinsheimer, Jr., issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
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.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that Respondent, Stanley Levinson
d/b/a Independent Rapid Trucking, Long Beach,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in said recom-
mended Order.
1 The title of "Tnai Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: The above
proceeding was heard at Los Angeles, California, Septem-
ber 16, 17, and 18, 1971. The complaint' issued May 28,
1971,2 alleges violation of Section 8(a) (1), (3), and (5) of
the Act.
The principal issues are: (1) whether the Respondent
engaged in acts and conduct tantamount to recognition of
the Union and subsequently withdrew recognition (or
alternately whether it became obligated to recognize the
I An original charge was filed April 14, 1971, and an amended charge
April 15, 1971.
2 An amendment to the above complaint was issued on June 9, 1971
3 Ruling was reserved concerning an offer as an "admission" of an
Union); (2) whether it engaged in certain acts in violation
of Section 8(a)(1) of the Act; (3) whether it violated Section
8(a)(3) by terminating its relationship with Wallace
Mackinga whom the General Counsel claims to have been
an employee and the Respondent asserts to have been an
independent contractor; and (4) whether a strike which
occurred was an unfair labor practice strike.
Upon the entire record including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel and Respondent, I make the following: 3
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
During the last fiscal year, a representative period,
Respondent performed services valued at approximately
$35,000 for branches of the United States Government
directly related to national defense. During the same
period Respondent performed services valued in excess of
$50,000 for customers within the State of California each
of whom annually purchases and receives goods and
materials valued in excess of $50,000 directly from
suppliers located outside the State of California. Respon-
dent does not deny and I find that it is engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is undenied and I find that General Truck Drivers,
Chauffeurs and Helpers Union Local 692, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor
organization within the meaning of the Act.
IN. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Alleged 8(a)(5) Allegations
In the latter part of February 1971 evidently prior to the
commencement of the Union's organizational activities or
without knowledge thereof Stanley Levinson, the owner
and operator of Respondent, called his employees together
at what was called the "forklift" meeting since it took place
near the forklift. Most of the employees were present along
with Levinson and Gerald Fay, the operations manager
and an admitted supervisor. Levinson announced that the
employees could no longer have breakfast on company
time since they had been abusing the privilege. He then
asked if the employees had any gripes and a number of
matters arose including raises and the issue of job
assignments. Levinson explained that he tried to equalize
the amount of time the employees worked each week and
employee Haynes said he would prefer a seniority system.
Levinson said he would think about it. Other matters
relating to profit sharing, Christmas bonus, free loans, and
hospitalization were discussed.
Union organizational activities began about February
21, 1971, when Gunder Hansen, business representative
affidavit of the alleged discrimmatee Wallace Mackinga. It is hereby
received as such since alleged discrimmatees are considered in certain
respects as if "parties," particularly in the case of sequestration of witnesses
and where they file charges, etc.
200 NLRB No. 58
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and organizer for the Union, was contacted by Merlin
Breland, an employee. By the beginning of March the
Union received by mail nine signed authorization cards
representing all the employees except Wallace Mackinga.
An issue is whether he was an employee or an independent
contractor.
About the beginning of March a meeting was held at the
union office at which were present Hansen, James Cowan,
a business agent, and most of the employees. Hansen
informed the employees he was going to talk to Levinson
to demand recognition. Hansen asked them whether, if
Levinson refused, they would strike for recognition and
they indicated they would. Hansen said that he had also
mentioned the possibility of going to the Board which
could involve an election. Although Hansen may have
mentioned the latter there was no particular consideration
given to it, The employees who testified either had no
recollection or recalled only that the subject was men-
tioned. The emphasis was on striking for recognition in the
event of nonrecognition.
Thereafter Hansen went to Levinson's place of business
to present him with the Union's demands. Hansen testified
his recollection was that this was March 17. Levinson and
Patty Sherman, his office manager, who was present,
placed the time as of March 24. Levinson predicated this
upon the, fact that Sherman was there and that on the 17th
she was out shopping for a birthday present for her son
whose birthday was that day. It also appears from the
sequence of events that the date was probably March 24
and I am accordingly crediting Levinson and Sherman's
testimony thiat the meeting was on the 24th.
Present at this meeting were Hansen, Levinson, and
Sherman. Hansen testified he introduced himself, informed
Levinson that the majority had signed cards and demand-
ed recognition.4 According to Hansen, Levinson asked
how he knew the Union had a majority. Hansen took the
cards out and laid them near Levinson's desk and said he
had cards signed by the majority. Levinson then instructed
Mrs. Sherman to pull out a list of Respondent's employees.
According to Hansen she put the file in front of Hansen
and pointed out the employees under discussion. Hansen
went down the list, then reported that the majority had
signed cards. There is some dispute as to how close the
cards were to Levinson at this point and whether they were
face down or up. Hansen testified that they were face up
and within Levinson's reach. Levinson first testified
Hansen put the cards on a counter about 3 feet from him
face down. Subsequently Levinson said he couldn't see
whether the cards were up or down since he didn't have his
glasses on. Patty Sherman said that they were about an
arm's reach from Hansen and beyond Levinson' s arm's
reach, unless he rolled the chair over, and that they were
face down.
There is no question that Levinson did not look at the
cards. There is a dispute about whether Levinson asked to
see the cards and was refused. Levinson said he asked to
see the cards and that Hansen stated he was not permitted
to show them. Sherman also testified that Levinson asked
to see the cards and Hansen said he couldn't but a third
party "could come in and be there if he wanted to look at
them." Hansen denied that he refused to let Levinson see
the cards. Levinson asserted that he told Hansen he did not
believe his employees had signed cards. Mrs. Sherman did
not specifically testify as to this latter but did testify as set
forth concerning Levinson's requesting to see the cards.
Hansen denied that this was the case. Levinson testified in
some detail that Hansen said he had the majority of the
cards which he would not show him, that he (Levinson)
said, "Well, how do I know that my employees signed these
things?" and that Hansen responded, "Well, we can call an
impartial third party in here, such as a minister or a priest."
Levinson responded, "How about a rabbi?" to which
Hansen laughed and said, "A rabbi is all right." Levinson
then said, "I don't believe that my employees signed this,
because we have always had an open line of communica-
tion, and this is the first time I have heard of this thing."
Levinson thereupon testified he said to Sherman, "Pull the
payroll records and ask Gunder if he recognizes the
names."
Hansen was asked, "Didn't you tell him that he could
not look at the cards because only a third party could do
so?" Hansen responded , "He has a right to look at them at
any time he wants to look at them."
Q. That is not my question.
A. I told him that he could look at them anytime
he wants to.
Q. In fact, didn't you tell him that a priest or
clergyman would have to look at them?
A. If he wanted to do it that way-if he wanted a
third party; it is up to him.
Q. In fact, he told you that maybe a rabbi would be
as good as a priest.
A. There is nothing wrong with that. I don't
discriminate them.
Q. Is your testimony now-as you sit here now-
that you did not tell him he could not look at the cards
unless a third party was present?
A. I never told him he couldn't look at them.
Whatever else the foregoing may reflect it appears there
was doubt indicated by Levinson concerning the cards and
discussion with respect to a third person looking at them. It
is not clear why there would have been any discussion as to
a third person were the cards immediately available to
Levinson as Hansen claims and Levinson and Sherman
deny. While there may be a question as to why Hansen
would set the cards down if he didn't intend Levinson to
4 It was stipulated and I find that "all employees employed by
Respondent; excluding office clerical employees, professional employees,
guards, and supervisors as defined in the Act" constitute an appropriate
unit.
It was also stipulated and I find that as of March 24, 1971, there were
either 9 or 10 , persons in the appropriate unit depending on whether or not
Mackinga was an employee or an independent contractor
Authorization cards of all 10 (including Mackinga) were received in
evidence, 8 dated in February 1971, 1 dated March 6, 1971, and 1 for
Mackinga dated March 24, 1971. It was stipulated and I find that the
employees in the unit as of April 12, 1971 , the first day of a strike were the
same as those on March 24 , 1971. It is clear and I find that at the time of the
meeting on March 24 and at all times material a majority of employees in
the appropriate unit had executed cards designating the Union as their
representative.
INDEPENDENT RAPID TRUCKING 369
look at them, I note that they were not placed on
Levinson's desk but on a counter within reach of Hansen.5
It appears more probable and I conclude that the
discussion as to a third person (in part corroborated by
Hansen) came about as testified to by Levinson. Apparent-
ly nothing came of the third person discussion as Hansen
thereafter checked a list of employees and according to
Hansen asserted he had cards for "just about everyone of
these employees." According to Levinson, Hansen said,
"Yes, Stan I have got them all" and that he replied, "Well,
I don't believe you have got them all," and Hansen then
asked him to sign a recognition agreement.
In any event it is clear that: Levinson did not look at the
cards; Levinson did ask Sherman to furnish a payroll list;
Hansen did look at the list and state that he had "about
everyone" or "them all"; and also at some point Hansen
gave Levinson a recognition agreement and asked him to
sign it (which as set forth post Levinson did not sign).
Levinson, according to Hansen, asked what kind of
contract he proposed. Hansen proposed the standard
contract. Levinson said if he had to pay union wages he
would go broke. Hansen replied that under certain
conditions there could be some relief from the provisions
of the standard contract. There was then some discussion
as to the basic economic provisions with Levinson drawing
out of his desk a copy of a union contract which he had.
Hansen said that in response to Levinson's questions he
told him the cost of wages, health and welfare, prescrip-
tion, dental, and pension plans. In connection with the
pension plan, Hansen explained some relief could be given
here and possibly a delay in implementing the plan.
According to Hansen he gave Levinson copies of the
contract, health and welfare brochure, dental brochure,
and prescription brochure and then Hansen telephoned his
secretary to get the exact cost of the health and welfare,
dental, and prescription plans and he conveyed the
information to Levinson. After some discussion of other
matters, the meeting ended. Hansen suggested that
Levinson read the contract and brochures and said he
would call in about a week to set up another meeting to
which Levinson agreed.
As set forth, during the course of the meeting Hansen
presented Levinson with a recognition agreement and
again asked Levinson to sign it at the end of the meeting.
Levinson said he would not sign anything without talking
to his attorney and that he would advise Hansen of what
the attorney said. There is no question that Levinson did
not agree to sign a recognition agreement at this or any
time and, in fact, said he would sign nothing without his
attorney's approval. Hansen testified that he specifically
asked Levinson to ',sign the agreement but that Levinson
did not sign it. Hansen testified that about midway during
the meeting, ". . . I wanted him to understand that this
was merely a letter of recognition. He was not signing a
contract. That we would have to-by law-take the
proposals to the employees, such as this." According to
Hansen, Levinson said he would not sign because "he
wanted to consult with someone...: . Hansen further
testified, "He said he was going to have to have time to sit
down and read the contracts and everything else, because
he didn't want to sign anything without full knowledge."
Hansen denied that Levinson said he would call his
lawyer and call him the next day. Subsequently Hansen
testified, "He might have said he was going to call. He
wasn't going to sign until he talked this over with his
lawyers, and he wanted time to read. He also wanted
time-he didn't have time; very busy man; didn't
want-he wanted to read the contract and all those
brochures. I don't blame him." Hansen also stated that
when he left the office he told Levinson to read the
contract and brochures and told Levinson he would be
back in a week and would give him a call. Hansen denied
receiving a call from Levinson then or at any time but said
he called Levinson a week or 10 days after the meeting.
Hansen was subsequently asked:
Q. At anytime during this meeting did he tell you
that he would recognize the Teamsters Union?
A. No, he did not.
Q. Or that he would sign that form?
A. No.
Following the meeting, Levinson testified and Sherman
corroborated, that he expressed doubt to her about
whether the employees had signed authorization cards.
Shortly thereafter Levinson went out behind the warehouse
where employee Ron Wilson was working on a trailer. He
asked Wilson if he had signed an authorization card and
Wilson answered that he had and all the men had signed.
Levinson testified that shortly after the meeting, "I said I
was probably going to sign a contract eventually. Q. Who
did you say that to? A. I don't know. Several people in the
place."
Virginia Wilson, who worked in the office, testified that
she asked Levinson "What was going to happen and he
said that he was going to sign the contract because the guys
had filled out cards and he wanted to first talk with his
attorney and his accountant, because it would be foolish of
him to sign something when he didn't know exactly what
would happen, you know. He had to know exactly where
he stood and I agreed.... .
At the meeting of March 24 it was understood that
Levinson and Hansen would meet again. Levinson told
Hansen he would call him after he consulted with his
attorney. Levinson attempted to reach his attorney but was
unsuccessful and testified he called Hansen and informed
him that he had not been able to reach his attorney but
would contact him as soon as he had. Hansen denied
receiving such a phone call. Levinson did reach his
attorney who told him he was not familiar with labor
matters and referred him to another attorney who was also
unfamiliar with labor relations. Thereafter Levinson
contacted Mrs. Gladys Selvin, a labor relations consultant
and representative, and arranged to meet with her on the
morning of April 6.
In the meantime Hansen telephoned Mrs. Sherman and
testified without denial by Mrs. Sherman that he had two
telephone conversations with her either the same day or on
successive days and it was agreed Hansen would meet
Levinson again on March 30 at 2 p.m. Hansen and Cowan
5 However, the recognition agreement was placed by Hansen on
Levinson's desk.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to the plant at 2 o'clock on March 30 (or 31) and
testified that upon arriving at the plant they went to a
catering truck parked nearby and Mrs. Sherman came out
and told them Levinson would not be able to keep the
appointment. Mrs. Sherman then said Levinson had said to
set up a meeting for April 6 at 2 p.m. Hansen agreed to
meet Levinson at that time.
In the meantime, as set forth, Levinson met with Mrs.
Selvin on the morning of April 6. Hansen and Cowan
arrived at the plant at 2 p.m. that day and went to the
office. Mrs. Sherman presented Hansen with the business
card of Mrs. Edwin Selvin, the aforesaid labor relations
consultant, and said that if he had any business with the
Respondent he was to contact Selvin.
Before leaving the premises Hansen made a call from
Respondent's telephone to Mrs. Selvin. Hansen contends
that he told her he was a business representative of the
Union. Selvin and Sherman testified that Hansen said that
he was an employee. However, it appears that Selvin in the
course of the conversation at least understood that the
Union was seeking recognition. Also, during the discussion
it is evident that the word "election" was being used by
Hansen and Selvin. Hansen testified he told Selvin he had
a majority of cards and was demanding recognition.
According to Hansen, Selvin expressed doubt concerning
the Union's having a majority of signed cards and that if
he wanted recognition he would have to go to the Board
and through its processes. Hansen said he then requested
Selvin to agree to "a vote today." According to Hansen,
Selvin refused stating she was in a hurry and was going to
the Board. Mrs. Selvin testified she had a call from a man
who identified himself as an employee who told her he
understood she thought there should be an election and
said, "Come on down; we will have an election. We will
have an election any time." Selvin testified she suggested
he file a petition for an election and that it would be better
to have an election because "you claim you represent all
these people."
Sherman testified that before Hansen and Cowan left,
Hansen said he wanted to talk to Levinson and that there
would be a strike against Respondent if he did not talk to
Levinson. On April 8 or 9, Hansen telephoned Ron Wilson
and told him Respondent refused to recognize the Union
and to find out if the employees still were willing to strike
for recognition. Wilson talked to the employees about
going on strike and informed them there was going to be a
strike because Hansen was having problems getting
Respondent to bargain with the Union. About April 10
Hansen called Wilson. Wilson said he talked to some
employees and they still wanted to strike for recognition.
Hansen told Wilson the strike would start Monday, April
12, on which date a strike commenced.
Prior thereto shortly after the meeting of March 24,
Levinson put into effect a "seniority" method of assigning
employees instead of the one he had been using. This had
been an "equalization" method. Because of the skills or
lack of skills and qualifications with respect to driving and
other work requirements, it appears that there was
probably not a great deal of difference in the effect of the
different methods since seniority could not be literally
followed in any event. This utilization of "seniority" was in
effect for approximately 10 days and ceased April 6
because Selvin had advised Levinson that he was to make
no changes in the working conditions.
As previously indicated there had been some discussion
about desire for seniority at the "forklift" meeting.
Levinson testified that he had put the seniority into effect
because he had been thinking about it; he had read the
union booklet:
... And apparently, to the best of my knowledge,
I thought that I'm going to have to comply with some
of these things that the Union came through and
proposed to me at that meeting with Hansen, and that
is to the best of my knowledge, sir.
s s * * :
I would think I could say that perhaps Mr. Hansen's
visit, and reading the book over, were a corroborating
factor to instituting the seniority system.
The General Counsel argues in essence that Levinson
had at the meeting on March 24 by discussing the contract
and going over provisions, including Hansen's calling his
office for more detail concerning pension aspects, in effect,
recognized the Union even though it is undisputed that
Respondent would not sign a recognition agreement or
anything without legal advice. The General Counsel's
argument necessarily includes a contention that any
question Levinson may have had as to the Union's
majority was negated by Hansen's checking the list of
employees, by Levinson subsequently questioning Ron
Wilson who said everybody had signed, and by Levinson's
conduct allegedly indicative of recognition of the Union,
such as his stating to several people that he was "probably
going to sign a contract eventually," and his purportedly
informing Virginia Wilson that he was going to sign a
contract, but first had to talk with his lawyer and
accountant.
The General Counsel also contends that Levinson led the
Union to believe he was going to negotiate and caused it to
delay in resorting to other methods of establishing majority
status. However it appears that Levinson was seeking
advice from an attorney, that he had contacted two
attorneys, neither of whom could advise him as to labor
matters and that he then did retain Mrs. Selvin. Whether or
not he called Hansen as he claimed, it appears that on
March 30 or 31 after Sherman had evidently arranged an
appointment, that Sherman told Hansen on his arrival that
Levinson was unavailable for business reasons and made
an appointment for 2 p.m. on April 6. On that morning
Levinson had arranged for Selvin to represent him and
instructed Sherman to refer Hansen to Selvin, which
resulted in the telephone conversation referred to supra.
From the foregoing General Counsel presents an
arguable contention but to the contra the record is specific
that Levinson had not recognized the Union and had raised
questions as to the Union's majority and representative
status. It is also evident that Levinson was somewhat
confused by the situation. His statements that he "proba-
bly was going to sign a contract eventually," while at the
same time he was asking questions about union member-
ship, together with his pursuit of knowledgeable represent-
ation, indicate both lack of understanding and indecision.
INDEPENDENT RAPID TRUCKING
As set forth, it is clear that at no time did Levinson look
at the cards which Levinson testified Hansen said he was
not permitted to do, that the discussion as to having a third
party look at the cards lends support to the conclusion that
Levinson was not free to look at the cards, that Levinson at
no time admitted or acknowledged that the Union
represented a majority, and that he did not recognize the
Union. Further it is evident upon Mrs. Selvm's acceptance
of representation of the Respondent that she had suggested
to Hansen that the processes of the Board be followed with
an election conducted by the Board.
The situation would accordingly appear to come within
the ambit of the more recent Board cases which in effect
have said that the Board would find an 8(a)(5) violation
where there was both admitted employer knowledge of
majority status and the absence of any evidence that the
employer was willing to resolve any lingering doubts of
majority status through election procedures, but where
there appear to be doubts as to majority status and/or
where the employer appears willing to resolve any doubts
of majority status through the election procedures, that the
Board absent substantial unfair labor practices would be
unwilling to find an 8(a)(5) violation. See Linden Lumber
Division, Summer & Company,6 190 NLRB No. 116, where
the majority of the Board said:
The facts of the present case have caused us to
reassess the wisdom of attempting to divine, in
retrospect, the state of employer (a) knowledge and (b)
intent at the time he refuses to accede to a union
demand for recognition. Unless, as in Snow & Sons, the
employer has agreed to let its "knowledge" of majority
status be established through a means other than a
Board election, how are we to evaluate whether it
"knows" or whether it "doubts" majority status? And if
we are to let our decisions turn on an employer's
"willingness" to have majority status determined by an
election, how are we to judge "willingness" if the record
is silent, as in Wilder, or doubtful, as here, as to just
how "willing" the Respondent is in fact? We decline, in
summary, to reenter the "good-faith" thicket of Joy
Silk,2 which we announced to the Supreme Court in
Gissel we had "virtually abandoned ... altogether,"
id., 594.
2 Joy Silk Mills, Inc, 85 NLRB 1263, enfd. as modified 185 F.2d
732.
These considerations lead us to the conclusion that
Respondent should not be found guilty of a violation of
Section 8(a)(5) solely upon the basis of its refusal to accept
evidence of majority status other than the results of a Board
election. We repeat for emphasis our reliance here upon
the additional fact that the Respondent and the Union
never voluntarily agreed upon any mutually acceptable and
legally permissible means, other than a Board-conducted
election, for resolving the issue of union majority status. By
such reliance we recognize and encourage the principle
of voluntarism but at the same time insure that when
voluntarism fails the `preferred route" of secret ballot
371
elections is available to those who do not find any alterna-
tive route acceptable. [Emphasis supplied.]
It appears herein that Respondent both had some
question as to the Union's majority and that it had
indicated a willingness to resolve this through the Board's
processes . On that basis I find no violation of Section
8(a)(5) of the Act.
The next question is whether or not the employer
engaged in such unfair labor practices as to justify a
remedy under the Gissel7 concept. This could depend on
the resolution of the other allegations in the complaint
which will be discussed hereafter. However, to the extent I
hereafter am finding any violations , I do not consider such
would support a Gissel remedy and accordingly conclude
that such remedy is inapplicable herein and find no
violation of Section 8(a)(5) on the basis thereof or any
other basis.
On the basis of the foregoing findings I also find that the
strike which followed nonrecognition was not an unfair
labor practice strike.
B. Alleged Acts of Violation of Section 8(a)(1)
One of the alleged acts of violation of Section 8(a)(1) is
the claimed interrogation of Wilson set forth above. Under
the circumstances and on the basis of the cases I conclude
that this one incident where Levinson asked Wilson about
joining the Union would not be such interrogation as to be
violative of Section 8(a)(1) and I so find.
With respect to the adoption of the seniority policy
instead of the equalization method of assigning work, (1) it
was only in effect about 10 days and (2) there does not
appear to have been any substantial effect therefrom. I
conclude that insofar as such may be deemed a violation it
should be viewed as of insufficient impact to warrant a
finding of violation and I accordingly make no such
finding.
The third instance of alleged violation of the Act
concerns the taking of pictures . There is some controversy
as to whether Levinson or Hansen started taking pictures
on the opening day of the strike while the pickets were out
in front. There is no question that Hansen had a camera
out and Levinson had a camera and that Levinson took a
picture of Hansen and the employees , also that Levinson
feigned the taking of several more pictures that day and in
addition on the next day. Levinson testified as follows:
Q. (By Mr. Hibner) Mr. Levinson, why did you
take the picture?
A. Because it was a big joke. We were retaliating
against Hansen for taking my picture.
Everybody was laughing, so I went out and I told the
girls, I said, "Let me take a picture of this guy joking
around."
So I took the picture.
Q. You were kind of mad at Hansen that day, were
you?
A. I don't get mad. I was angry.
Levinson added he was angry:
A. Because I believe he was harassing me, making
6 Compare Arthur F. Derse, Sr, President, and Wilder Mfg Co., Inc., 185 7 N.LR.B v. Gissel Packing Co., 395 U.S. 575 (1969).
NLRB No. 76.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that loud music in the car, of which I have a tape, if you
want it to be offered in evidence.
Respondent also argues that the pickets were evidently
smiling, that Levinson knew all of them, that the Union
was playing, very loudly, a number of Tennessee Ernie
Ford's called "Sixteen Tons," that Hansen was honking a
horn at times, and that the police had been called because
of complaints of others. Respondent contends that under
all the circumstances there could be no substantial coercive
effect from the picture taking (or feigned taking) by
Levinson. To some extent this may be true but nevertheless
Levinson did not have any apparent valid justification for
taking pictures such as in pursuit of an injunction, since
there does not appear to have been any activity occurring
or which could be used for such purpose. I accordingly
find that the picture Levinson took and the feigning of
pictures was in violation of Section 8(a)(1) of the Act as
alleged.
Employee Richard Haynes testified:
Q. Would you please describe what you and Mr.
Fay said to each other?
A. Well, he told me that he would be glad when all
this was over, and he asked me if I wanted to talk to
Stan, and he said that he had heard that some of the
guys wanted to talk to Stan.
And I said no, that I didn't. I said that as far as I
knew, nobody else did either.
He told me that Stan was making a package deal or
something for us, with certain benefits, such as
hospitalization plan and holidays-paid holidays, and
loan privileges up to $200.
Then he asked me-he said, "Are you sure you don't
want to talk to Stan?"
I said, "No, I don't have anything to say."
Fay denied this conversation but admitted that he did
ask Ignacio Hidalgo and Wallace Mackinga if they would
like to talk to Stan to try to work out an end to the strike.
Fay explained that the reason for talking to Hidalgo and
Mackinga was that he had heard rumors that the men
wanted to talk to Stan (Levinson). Fay said they were
willing to talk but Stan wouldn't talk to Mackinga. Fay
also said he was at the "forklift" meeting. He admitted "I
tried to get meetings together with Stan and the men, to try
to break this thing up and go back to work, get them back
to work." I find the latter inconsistent with his denial of his
conversation with Haynes and accordingly credit Haynes
and find that Respondent thereby sought to bargain or
deal with the employees at a time and under circumstances
whereby such conduct violated Section 8(a)(1) of the Act.
C. The Termination of Wallace Mackinga
Mackinga worked as an employee from February to
sometime in December 1969. Respondent was in the
process of developing its overseas business and Mackinga
worked in part on that prior to December 1969 and also on
other jobs and work of the'Company. He was then under
the supervision of Gerald Fay, the operations manager.
Mackinga was paid hourly and was clearly an employee
during this time. There is some dispute as to the extent of
time he devoted to the overseas work prior to December.
There is no question that after December when Mackinga
allegedly became an independent contractor that the
overseas work was performed almost entirely by him
although Levinson said that Mackinga got the "cream" of
the work with the rest left for the Company to take care of.
The pertinent facts with respect to Mackinga 's employ-
ment before December and after are as follows:
On the morning of April 12, 1971, Levinson testified that
he arrived and remarked that Wallace Mackinga had failed
to deliver the goods in his truck . Mackinga said the truck
would be picketed if he delivered the goods. Levinson,
pursuant to instructions from Mrs. Selvin , asked Mackinga
again to make the delivery and Mackinga refused.
Levinson then informed him that their relationship was
terminated . Mackinga was accordingly terminated and
thereafter the overseas work performed by him was
handled primarily by employee La Fortune.
As set forth , the issue is whether or not Mackinga was an
employee or an independent contractor . Mackinga began
employment for Respondent in February 1969 and from
that time until December as stated , there is no issue or
question that he was an employee . He was hourly paid,
received paid holidays , filled out a timecard, was subject to
overtime , and withholding and social security were
deducted from his pay. He was covered by workmen's
compensation and used and operated equipment owned by
Respondent which paid all of the expenses in connection
with the equipment. During the period of February 1969 to
December 1969, Mackinga hauled containerized cargo to
and from port , called "overseas" cargo, and in addition
performed work in driving , packing, and loading of loose
household goods.
Respondent was then in the process of developing its
overseas business. There is some dispute as to how much
work Mackinga performed on the overseas work prior to
December 1969. According to him he was so engaged a
majority of his time and he did most of this work.
According to Operations Manager and Dispatcher -Super-
visor Gerald Fay, the work was equally divided among four
people-Mackinga and three other drivers.
In any case, Fay selected the driver to perform the work
and assigned the truck . Mackinga or the person assigned to
the work was then informed by Kermit Haines of the jobs
to be done and Mackinga and Haines jointly worked out
Mackinga's schedule for performing those jobs. Although
Mackinga testified that other employees only did container
work in 1969 when the workload was too much for him, as
will appear there is an inconsistency therein, since Mackin-
ga testified that after he became a lease operator (in
December 1969), although the overseas work had increased
substantially that he performed almost all of it. While
Mackinga may have performed more of the work than
others in 1969 , it is evident and I conclude that a
substantial amount was then being regularly performed by
other employees.
In 1969 while admittedly an employee Mackinga
received pay of $7,731 and the highest paid employee,
Adkins, received about $8 ,333. Mackinga in the past year
had a gross income of $28,000 with a resultant net
substantially higher than before.
Mackinga had indicated to Levinson that he would like
to make more money and be an independent operator and
INDEPENDENT RAPID TRUCKING
Levinson who considered Mackinga to be an ambitious
person agreed to an oral lease operator relationship.
Pursuant to that relationship under an oral agreement
Mackinga made a down payment of $1,000 and was to pay
off the balance as he was able to on a truck and trailer then
owned by Levinson at its fair market value. During the
interval and throughout the relationship Levinson retained
the title certificates until the truck was paid for, this was
obviously for payment. Another reason was that Levinson
carried the insurance on the truck which was substantially
less expensive as part of a group than it would have been
for Mackinga to buy it individually. The truck continued
to have removable signs containing the name Stan's Vans.
Employees generally wore uniforms. Lease Operator
Mackinga occasionally wore a uniform but generally wore
his own clothes.
In connection with his operation of the truck, Mackinga
charged some repairs and tires to Respondent's credit but
these were deducted from amounts due and owing to him.
Mackinga paid for the oil and gas. There was no
workmen's compensation carried as to Mackinga by
Respondent. Mackinga did not receive overtime nor punch
a timecard, nor was withholding tax, social security,
unemployment, or other taxes deducted from amounts due
to Mackinga. Mackmga filed and paid an estimated tax.
Pursuant to his agreement he billed the Respondent at a
rate of 65 percent of the gross revenue received by
Respondent for the jobs Mackinga performed. Mackinga
received payment from the Respondent in the form
initially of a drawing account of $100 a week subsequently
increased against his invoices to take care of certain
current expenses but also received payments from Respon-
dent in connection with Mackinga's invoices when Res-
pondent had collected from the persons for whom services
had been performed.
During the time that he was performing services as lease
operator, Mackinga had no connection with Fay and
worked solely on overseas commodities and shipments.
Mackinga performed almost all of this work except for a
small number of items which apparently were not
worthwhile, but which Respondent continued to take care
of. Although Mackinga testified he did not turn down any
work, Levinson testified as set forth that Mackinga got the
"cream" of the work and Respondent had to handle some
unprofitable work.
With respect to the handling of his work, at first
Mackinga continued to work with Haines in the scheduling
of the work and subsequently with Lynn Benson who
succeeded Haines. According to Mackinga the relationship
with Haines was about the same afterward except he did
his own routing. In other words they worked out the
scheduling together and he did his own routing. Mackinga
testified concerning his work relationship and the schedul-
ing as follows:
Q. All right.
You would pick your own jobs though, wouldn't
you?
A.- We would set up the runs. I didn't necessarily
pick my jobs, no.
Q. You together would-
373
A. Together we would set the runs up so we would
accomplish the most work with the least amount of
equipment.
Q. And also you wanted to make sure if possible
that you could haul materials both ways on runs so that
it would be more profitable to you?
A. More profitable to both of us; right.
Subsequently he stated:
Q. In fact, didn't you really arrange your own
schedules except when Lynn would occasionally tell
you that a shipment was particularly important, and
you would then do this job first?
A. With Lynn I would arrange and set up the runs.
Without her I couldn't do it. Without her I wouldn't
know what was available or what was-what were the
jobs that we were able to run, you see.
* * *
Q. (By Mr. Hibner) Wouldn't Lynn tell you what
jobs there were and then you would make up a
schedule?
A. We worked the schedule out together.
He was then shown an affidavit he gave the National
Labor Relations Board. The affidavits in pertinent part
reads:
I was not dispatched by Jerry Fay. Lynn Benson,
who handled orders of overseas commodities, would
show me the orders. I would arrange my own schedule,
except that she would occasionally tell me that a
shipment was particularly important, and I would then
do that job first.
Mackinga thereafter testified:
THE WITNESS: There are times when you can set up
your own schedule, if the workload wasn't such that
you were overburdened.
But then again, if there was a great workload, then
we would set it up to the best benefit of moving the
cargo.
TRIAL EXAMINER: Were there any differences be-
tween you as to whether you would make one stop first
and then another, or pick up something first and then
another? Did that arise?
THE WITNESS: No, it didn't.
She might let me know that a certain portion of the
shipment had to be picked up, if there was too much to
run in one load, or something of that nature.
Q. (By Mr. Hibner) That is what you meant by
"particularly important shipments," didn't you?
A. Well, there are different types of important
shipments.
Q. Some that needed special handling?
A. Yes.
Q. There would be some time pressures to have the
stuff moved?
A. Yes.
Before Mackinga was a lease operator all of his trips
appeared on the dispatch book and Respondent knew from
8 Previously received as an admission in fn. 3.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it where to reach him . Thereafter according to Levinson
although Mackinga was not listed in the dispatch book
Respondent did have "control" copies of their bills of
lading and could figure what the run was and "call ahead
and leave a message to contact us, in case we had got work
in the outlying areas to bung back."
While an employee, Mackinga had to give a customer a
quality control sheet to fill out and report on his efficiency,
but after he became a lease operator these forms were not
used.
Mackinga continued to have a key to Respondent's
premises and go there frequently to pick up and deliver
cargo from Respondent's premises and to store his truck
there.
Some of the principal differences involving Mackinga's
work relationship following the change to lease operator
were that he: (1) did no work other than overseas work; (2)
owned his own truck ; (3) took care of his own expenses; (4)
billed Respondent at a 65-percent rate for services
rendered ; (5) did his own routing entirely ; (6) paid his own
taxes; (7) was subject to no withholding taxes; (8) punched
no timeclocks but controlled his own hours ; (9) received no
holidays or vacations ; ( 10) was not listed in the dispatch
book ; ( 11) was not subject to quality control reports by
customers ; ( 12) filed or prepared no logs (as he had
before); (13) could select or perform desirable jobs and
leave certain less profitable ones to Respondent ; (14) could
regulate his own hours although his workload was
necessarily a factor therein ; (15) received remuneration
which was evidently much greater ; (16) could have done
work for others if he carried his own insurance ; and (17)
was subject to no supervision although as stated there was
a necessary working relationship with Haines and then
Benson in connection with the most effective scheduling of
the work, which would be of mutual benefit to both
Respondent and to Mackinga in maximizing the amounts
that he would make.
In connection with the foregoing one question was
whether Mackinga performed work for anyone other than
Respondent , which he did not . Another question was
whether he could have performed work for someone else.
According to Levinson, Mackinga inquired about this and
Levinson informed him that he could perform work for
others provided he took the name Stan's Vans off the truck
and obtained other insurance , since Levinson would not
cover him under his insurance.
Whether or not a person (namely Mackmga herein) was
an independent contractor as distinguished from an
employee is to be resolved by applying certain basic
criteria to all of the material facts.
The Board has stated that the basic criteria involves the
"common law right-of-control test under which an employ-
er-employee relationship exists when the employer reserves
the right to control not only the ends to be achieved, but
also the means to be used in reaching such ends." Further,
the Board has made it abundantly clear that "the
application of the test is not a `perfunctory exercise' but
demands a balancing of all the evidence relevant to the
relationship." 9
In connection with the above I have noted that
Mackmga inquired about his ability to perform work for
other employers. He was told there was no objection
provided the signs were taken off trucks and he obtained
other insurance . Mackinga did not do so.
The instant case accordingly raises a question of whether
or not a person can be an independent contractor when
performing services for only one employer . Actually his
freedom of movement may be as great or greater in such
instance than where he performs services for several
employers but one is the dominant employer who can for
all practical purposes control his services.
In the instant case it appears that Mackinga had more
freedom and more latitude as a lease operator than as an
employee but could not do anything he wanted and still
maintain his relationship with Respondent. As a practical
matter there were necessarily limitations and he would
have to perform work in a certain fashion or there could be
no relationship . The same though would appear to be true
in most independent contractor relationships unless a
particular contractor from either the nature of the business
or the number of contracts could afford to be more
independent . Independence is a relative term or matter at
best.
The cases that deal with this matter include the Aetna
Freight Lines supra where the Board found that the drivers
had such severe restrictions on what they could do and
such requisites for their relationship that they could not be
treated as independent contractors . The Board therein
affirmed the Regional Director who said that he relied
particularly on the following:
... The overall effect of the ICC regulations
requiring comprehensive employer control over the
operations of the drivers and of the leased equipment; the
Employer's right to the exclusive possession, control and
use of the leased equipment during the term of the leases,-
the fact that a substantial majority of the owner-drivers
haul almost exclusively for the Employer; the fact that
all drivers are required to submit employment applica-
tions,- the fact that the Employer can terminate at any
time the lease agreements if the equipment is not
maintained in good working condition or if the equipment
is not operated to the satisfaction of the Employer; the
right of either party to terminate the leases at will, any
time after 30 days; the fact that payments made to the
equipment owners for hauling the Employer's freight are
for the mostpart unilaterally set by the Employer; the fact
that the leased equipment is required to exhibit the
Employer's name; and the requirement that drivers
submit logs and physical examination reports to the
Employer." [Emphasis supplied.]
Concurring Board Chairman Miller stated that he relied on
the following:
... The severe restrictions on trip leasing, the use of
lease terminations as discipline for failure to accept loads,
the carefullyprescribed time restrictions on deliveries, the
detailed and uniformly applied rules regarding procedures
in the event of delays and accidents, and the "how to do
it " directions covering other aspects of the driving
operation, all go well beyond governmental regulatory
rules for the industry.
9 Aetna Freight Lines, 194 NLRB No. 120.
INDEPENDENT RAPID TRUCKING 375
Furthermore, the payment of hourly rates for
detention time, the payment of special cash and
merchandise bonuses, and the unilaterally determined
allocation of expenses between Aetna and the drivers
suggest that there are more "employee" attributes and
less independence than would be present in a true
independent contractor relationship. [Emphasis sup-
plied.]
The instant case (re Mackinga) does not provide for or
set forth most of the restrictions indicated in the Aetna case
upon which the Board relied in finding an employee
relationship. Rather it appears to come within the ambit of
the Board's decisions in Seal Dairy, 135 NLRB 76; Reisch
Trucking and Transportation Co., Inc., 143 NLRB 953; and
L. C. Sinor, 168 NLRB 467, wherein the Board found an
independent contractor relationship.
Although I deem the issue an arguable one I believe that
the differences between Mackinga the employee and
Mackinga the lease operator and the facts appertaining to
the latter are such as to conclude that Mackinga was an
independent contractor and I so find. Accordingly the
termination of his contract by Respondent was not in
violation of Section 8(a)(1) and 8(a)(3) of the Act and I so
find. I shall accordingly recommend dismissal of the
allegations of the complaint appertaining thereto.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
employees as to wages, hours, and working conditions at a
time and under the circumstances set forth above,
Respondent violated Section 8(a)(1) of the Act.
5. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not otherwise violated the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact,
conclusions of law, and upon the entire record in the case,
it is hereby recommended that Respondent, Stanley
Levinson d/b/a Independent Rapid Trucking, Long
Beach, California, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) By photographing, feigning picture taking, or
otherwise giving the impression of surveillance of employ-
ees.
(b) Attempting to bargain or deal with employees as to
wages, hours, and working conditions at a time and under
circumstances when such would not be proper.
2. Take the following affirmative action:
(a) Post at his place of business in Long Beach,
California, copies of the attached notice marked "Appen-
dix A."12 Copies of said notice, to be furnished by the
Regional Director for Region 21, shall, after being duly
signed by Respondent, be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this decision,
what steps Respondent has taken to comply therewith.13
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
Having found that Respondent engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action which I find necessary to remedy
and remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
Although I have found certain violations of Section
8(a)(1) of the Act, I do not find these of such nature as to
warrant a Gissell o type of remedy herein. Upon the basis
of the foregoing findings and conclusions and upon the
entire record in this case, I make the following: II
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. Respondent is an employer engaged in commerce
within the meaning of the Act.
3. As found above by photographing and feigning
photography of employees on the picket line without
justifiable cause, the Respondent has interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act.
4. By attempting to bargain or deal directly with
10 Fn 7 supra.
11 In the event no exceptions are filed as provided by See 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
i3 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read.
"Notify the Regional Director for Region 21, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT by picture taking, feigning picture taking,
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or otherwise give the impression of surveillance of
employees.
I WILL NOT attempt to bargain or deal with
employees as to wages , hours, and working conditions
at a time and under circumstances when such would
not be proper.
STANLEY LEVINSON D/B/A
INDEPENDENT RAPID
TRUCKING
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Eastern Columbia Building,
849 South Broadway, Los Angeles , California 90014,
Telephone 213-688-5200.
Dated By
(Representative) (Title)