International Transfer of Florida

National Labor Relations Board - Board Decisions

Sep 30, 1991

305 N.L.R.B. 150 (N.L.R.B. 1991)

150
305 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In his Decision and Direction of Election issued December 17,
1990, the Regional Director found appropriate a unit of ‘‘[a]ll full-
time and regular part-time truck drivers including owner-operators
and dispatchers employed by the Employer.’’ No party sought re-
view of this decision by the Board.
2 Lagos is the only nonowner driver making deliveries for I.T.F.
3 However, the payment from I.T.F. to Giron was based on the
number of loads hauled.
4 Our dissenting colleague finds that Giron is an employee based
on I.T.F.’s ‘‘admission’’ that he was. His finding ignores the ample
evidence presented at the hearing that established that Giron is in
fact an independent contractor and the employer of Lagos. The fact
that Giron received pay and benefits from I.T.F. does not establish
that Giron was an I.T.F. employee. We also note that Giron’s name
was removed from the Excelsior list, further evidencing his lack of
employee status.
International Transfer of Florida, Inc. and Inter-
national Longshoremen’s Association, Local
1922, AFL–CIO, Petitioner. Case 12–RC–7356
September 30, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board, by a three-
member panel, has considered a determinative chal-
lenged ballot cast in an election held January 16,
1991,1 and the hearing officer’s report recommending
disposition of it. The tally of ballots shows 10 for and
10 against the Petitioner, with 1 challenged ballot and
2 void ballots.
The Board has reviewed the record in light of the
exceptions and briefs and has adopted the hearing offi-
cer’s findings and recommendations only to the extent
consistent with this Decision and Order.
At issue in this case is the voting eligibility of
Winaldo Lagos. The hearing officer found that Lagos
was an eligible voter and therefore recommended that
the challenge to his ballot be overruled. For the rea-
sons set forth below, we reverse the hearing officer.
International Transfer of Florida, Inc. (I.T.F.) is in
the business of forwarding freight and transporting
customer-owned containers and trailers by utilizing
tractors leased from owner-operators. In October 1990
I.T.F. entered into a lease agreement with Maximo
Giron, who retained the right under the lease to hire
drivers to operate his tractor. Lagos is the third driver
retained by Giron since entering into the lease agree-
ment. After he was hired, Giron sent Lagos to I.T.F.
to introduce himself and let I.T.F. know that he would
be operating Giron’s truck2 Under the lease agreement
between I.T.F. and Giron, I.T.F. has no control over
the financial relationship between Giron and Lagos.
Giron and Lagos agreed that, after maintenance and re-
pair expenses were covered, they would split the cost
of fuel and divide the remainder equally.
Both I.T.F. and Giron required Lagos to follow the
I.T.F. rules, regulations, and requirements applicable to
owner-operators. In this regard, I.T.F. required each of
the drivers, including Lagos, to take written and driv-
ing tests, provide certain documents required under
Government regulations and insurance requirements,
and comply with all company rules. I.T.F. dispatched
its drivers on a first-come-first-serve basis, and Lagos
was dispatched in the same manner as the other opera-
tors. Further, Lagos, like the other drivers, was re-
quired after every delivery to call I.T.F. to be told of
other pickups or deliveries, and could, at his discretion,
reject a load3 Finally, Lagos, like the other drivers,
was required to notify I.T.F. if he was involved in an
accident or was unable to complete a delivery due to
truck breakdown or illness. When I.T.F. believed that
Lagos had attendance problems, it contacted Giron and
advised him of the problem.
At the hearing, I.T.F. argued that Lagos was an em-
ployee of Giron or an independent contractor and was
not its employee. The Petitioner contended that there
were no distinguishing factors between I.T.F.’s treat-
ment of owner-operators and its treatment of Lagos.
The hearing officer found that ‘‘at the very least’’
Giron and I.T.F. were joint employers of Lagos be-
cause Giron ‘‘assigned and directed Lagos to operate
the vehicle under the direct day-to-day control of
I.T.F.,’’ and that as an employee of I.T.F. on the date
of the election, Lagos was an eligible voter.
We agree that Giron and I.T.F. are joint employers4
A joint employer relationship exists where ‘‘two sepa-
rate business entities share or codetermine those mat-
ters governing the essential terms and conditions of
employment,’’ and where the one employer meaning-
fully affects matters relating to the employment rela-
tionship, such as hiring, firing, discipline, supervision,
and direction, over the employees employed by the
other employer. TLI, Inc., 271 NLRB 798 (1984). See
also Laerco Transportation, 269 NLRB 324 (1984).
Giron hires, fires, and determines the compensation of
Lagos. I.T.F. exercises exclusive daily supervision and
direction of Lagos, including dispatching and sched-
uling of work assignments. Through its operational
rules and procedures, I.T.F. controls the manner and
means of deliveries made by Lagos. In addition, I.T.F.
informs Giron of any problems it has with Lagos. In
view of these facts, we find that the criteria for a joint
employer finding have been satisfied and that Giron
and I.T.F. are joint employers of Lagos.
As a general rule, however, the Board does not in-
clude employees in the same unit if they do not have
the same employer, absent employer consent. Lee Hos-
pital, 300 NLRB 9471 (1990). In the instant case, all
of the unit employees, except Lagos, are solely the em-
ployees of I.T.F. As discussed above, Lagos is an em-
ployee of I.T.F. and Giron. Thus, Lagos can only be
151INTERNATIONAL TRANSFER OF FLORIDA
1 Giron’s name had initially been included on the Exclesior list by
I.T.F. Giron did not vote in the election, and I.T.F. appears to argue
that this was because his name was removed from the Excelsior list
at the behest of the Board’s Regional Office. I.T.F. now argues that
it is unfair to treat Lagos as an eligible voter if Giron did not vote.
As the Petitioner correctly points out, however, I.T.F. filed no timely
objection to the election based on impediments to Giron’s voting, so
any such issue is not properly before us.
2 I view the admission as going beyond merely the repeated use
of the term ‘‘employee.’’ Sibilia sought to present Giron as someone
who was on its payroll and entitled to its employee benefits, and not
someone with whom it dealt at arm’s length. Because Sibilia was
the company president, I would treat this testimony as a party admis-
sion.
included in the unit if both Giron and I.T.F. consent
to such an arrangement. Although the record does not
indicate either Giron’s consent or lack of consent, it is
clear from I.T.F.’s challenge of Lagos’ ballot, as well
as from its contentions at the hearing and in its excep-
tions, that I.T.F. does not consent to Lagos’ inclusion
in the unit. Accordingly, we find that Winaldo Lagos
is not an eligible voter, that the challenge to his ballot
must be sustained, and that a certification of results of
election should be issued.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for International Longshore-
men’s Association, Local 1922, AFL–CIO and that it
is not the exclusive representative of these bargaining
unit employees.
CHAIRMAN STEPHENS, dissenting.
Contrary to my colleagues, I would adopt the hear-
ing officer’s recommendation to open and count the
ballot of Winaldo Lagos.
Lagos transported shipments for I.T.F.’s customers,
driving a tractor owned by Maximo Giron. At the post-
election hearing in this case, Ron Sibilia, the president
of I.T.F., testified repeatedly that Giron, who leased
that tractor to I.T.F. for its exclusive use in its freight
forwarding and transport business, was I.T.F.’s ‘‘em-
ployee’’ to whom it gave a weekly ‘‘paycheck.’’1 I
would hold I.T.F. to that admission and would not en-
tertain its present claim that Giron was an entirely
independent party who had merely entered into a
truck-leasing agreement with I.T.F.2
As an employee on I.T.F.’s payroll, Giron was
someone whose actions taken at the request of I.T.F.
were properly attributable to I.T.F. Because it is undis-
puted that Giron did not drive the tractor, but merely
secured a driver for it and maintained the tractor to
meet I.T.F.’s specifications, I would affirm the hearing
officer’s finding that Giron was I.T.F.’s agent for se-
curing the services of Lagos to work for I.T.F. driving
one of its leased trucks under the direction of its dis-
patcher. Lagos can therefore properly be treated as
I.T.F.’s employee. It is irrelevant whether Sibilia or
other top I.T.F. managers were personally involved in
the hiring or discharge of the drivers of Giron’s truck,
just as such noninvolvement of top management would
be irrelevant in determining whether a driver hired by
any regular I.T.F. supervisor to drive for it was an
I.T.F. employee.
I would further find that, as an employee working
for I.T.F. during the eligibility period and on the day
of the election, Lagos was an eligible voter. I would
therefore adopt the hearing officer’s recommendation
that the challenge to Lagos’ ballot be overruled and
that it be opened and counted.