Manpower, Inc.

National Labor Relations Board - Board Decisions

May 2, 1967

164 N.L.R.B. 287 (N.L.R.B. 1967)

MANPOWER, INC. 287
Manpower , Inc., of Shelby County and
Armour Grocery Products Co., Division of
Armour and Company and General Drivers,
Salesmen and Warehousemen 's Local
Union No . 984, an affiliate of The
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America , Petioner . Case 26-RC-2796.
May 2,1967
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Kay Fisher
of the National Labor Relations Board. After the
closing of the hearing, the Regional Director, in
conformity with National Labor Relations Board's
Rules and Regulations, Series 8, as amended,
elected to transfer the case to the Board for decision.
The Hearing Officer's rulings are free from
prejudicial error and are hereby affirmed. The
Employers and the Petitioner filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. Manpower, Inc., of Shelby County, herein
referred to as Manpower, is a Tennessee
corporation, engaged in the business of supplying
temporary help and business services to business
firms. The parties stipulated that during the
preceding 12 months, in the course and conduct of
its business, Manpower supplied services to
business firms in the State of Tennessee in the value
of more than $50,000, which business firms, during
the same period, shipped from Tennessee to points
outside of Tennessee, goods and products in excess
of $50,000.
Armour and Company is a Delaware corporation
engaged in meatpacking, industrial, agricultural,
chemical, and other manufacturing activities
throughout the United States. Armour Grocery
Products Company, a Division of Armour and
Company, herein referred to as Armour, the only
plant involved in this proceeding, is engaged in the
manufacture of floor wax and cleaner. The parties
stipulated that during the preceding 12-month
period, Armour shipped from this plant into States
other than Tennessee, goods and products in excess
of $50,000. Both Manpower and Armour stipulated
that they are engaged in interstate commerce and
subject to the Board's jurisdiction, and we so find.
Pursuant to an oral agreement, Manpower has
supplied truckdrivers to Armour since March 1966.
Petitioner seeks a unit of over-the-road truckdrivers
which it contends are employed jointly by Manpower
and Armour. Both Manpower and Armour claim that
these drivers are employed solely by Manpower and
that Manpower has not declined to recognize
Petitioner.
In November 1965, Armour acquired the plant in
question from E. L. Bruce and Company, herein
known as Bruce. Bruce had several drivers on its
own payroll and also used drivers supplied by
Manpower. Upon initial operation of the plant,
Armour employed one truckdriver who had been
employed by Bruce. The driver ultimately went into
the warehouse when the one piece of trucking
equipment also acquired from Bruce had been
disposed of. Until about March 1966, Armour's
distribution of products was accomplished primarily
by common carrier. Since that date until the time of
the hearing, Manpower had supplied about 15
drivers to Armour, approximately 7 of whom had
worked steadily for Armour since the first few
months that Manpower and Armour operated under
their oral agreement. Approximately three of these
drivers had previously been assigned to Bruce by
Manpower. All of the over-the-road drivers working
at Armour are paid by Manpower.
As mentioned above, Manpower supplies these
truckdrivers to Armour pursuant to an oral
agreement which is terminable at will by either
party.' Armour pays Manpower an agreed contract
rate based on the number of miles driven by the
drivers. The drivers themselves are compensated by
Manpower based on a slip containing the total
mileage driven plus any miscellaneous expenses,
and signed by the driver and a representative of
Armour. Manpower has sole discretion as to the
rates of the drivers. Manpower deducts income taxes
and social security and provides workmen's
compensation for the drivers. Manpower advances
money to its drivers before trips taken for Armour
for out-of-pocket expenses and if additional money
is needed the drivers wire Manpower.
Although only Manpower can hire and fire the
drivers, Armour can request certain drivers, a
request which will be accommodated if possible, and
can refuse • to accept the driver referred to it by
Manpower. Armour gives a test run to the drivers in
order to determine their qualifications and furnishes
them with a safety manual. Armour also conducted
two safety meetings.' Armour's dispatcher informs
the drivers of their reporting time, assigns them their
runs, and prepares a manifest giving the drivers
' This agreement has been reduced to writing, although it has another company were in attendance , at the second meeting, only
not been executed
2 At the first meeting two Manpower drivers working for
drivers working for Armour were present
164 NLRB No. 37
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their time of departure, approximate time of arrival,
stops, pickups, and deliveries, and approximate day
of return; in addition, Armour's dispatcher receives
drivers complaints and has disciplined a driver.
Drivers report to Manpower only to get paid, usually
at the end of a run. Of the seven drivers who have
consistently been driving for Armour, only one had
made a trip for another company and then only on
one occasion. All paperwork completed by the
drivers bears Armour' s name; the drivers have a
bulletin board at the Armour plant; and they regard
Armour's vice president for traffic as
their "big boss."
The above evidence indicates that both Manpower
and Armour take part in determining matters
governing essential terms and conditions of
employment of these drivers. Manpower hires and
fires the drivers, determines their rates of pay, and
makes contributions and deductions for them as
required by law. Armour's use of the drivers
indicates that it has control over these employees
consistent with its status as an employer along with
Manpower.3 Armour tests the drivers referred to
them to determine their qualifications and has the
right to refuse any driver supplied by Manpower.
Armour gives the drivers safety instruction, provides
them with a safety manual , establishes the work
schedule, assigns the drivers to given runs, generally
supervises the drivers in the course of their
employment, and in effect holds itself out to the
drivers as their employer. In addition, Armour signs
the slip containing the mileage driven which the
drivers then present to Manpower for payment. In
view of the foregoing, we find that Manpower and
Armour are joint employers of the drivers supplied
by Manpower to Armour.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. Armour contends that if the drivers are found
to be its employees, that the collective- bargaining
agreement in effect between Armour and Local
3148, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, herein called Local 3148, is a
bar to the proceeding and the petition must be
dismissed. The collective -bargaining agreement in
question covers the production, maintenance, and
warehouse employees of Armour.
Prior to the acquisition by Armour, the employees
of Bruce, including the drivers directly employed by
it, were covered by a master agreement with the
Carpenters Union. The drivers of Manpower's
payroll that were supplied to Bruce were not covered
by that contract. When Armour took over from
Bruce, it employed one driver to operate the single
piece of trucking equipment it purchased from
3 See The Greyhound Corporation, 153 NLRB 1488.
4 Sterl ing Faucet Company, 119 N LR B 1225
Bruce. This driver was covered by the contract with
Local 3148 and has since moved into the warehouse.
Sometime after Manpower began supplying drivers
to Armour in March 1966, Local 3148 made a claim
to represent these drivers under its agreement with
Armour which commenced in December 1965.
Armour's position in response to this demand was
that the drivers were not its employees and there
was no basis for discussion concerning
representation.
While it is true that the fact that a new category or
operation has not been specifically named in the
recognition clause of the contract asserted as a bar is
not controlling,4 the Board has consistently held that
to serve as a bar, a contract must clearly by its terms
encompass the employees sought.5 There is no
evidence in the record or in the terms of the contract
with Local 3148 to indicate that the parties intended
to include the over-the-road drivers under the
agreement. When the contract was executed,
Armour's driving was done by common carrier and it
had only one driver on its payroll who soon moved
into the warehouse. Manpower drivers did not begin
working for Armour until 3 months after the
execution of the contract. Armour's answer to Local
3148 that the drivers are not its employees and there
was no basis for discussing representation would be
inconsistent with a finding that it intended to include
them under the contract. The only past history of
bargaining shows that the drivers supplied by
Manpower to Bruce were not covered under Bruce's
master agreement with the Carpenters Union.
Armour employs no other drivers and there is very
little contact between the drivers and Armour's
other employees. Thus, neither the terms of the
contract, the past bargaining history, nor Armour's
present bargaining relationship with Local 3148
evidence an intent to include the drivers under the
contract. We therefore find that Armour's contract
with Local 3148 is not a bar to the election.
Accordingly, we find that a question affecting
commerce exists concerning the representation of
the employees of the Employer within the meaning
of Section 9(c)(1) and Section 2(6) and (7) of the Act.
4. Petitioner seeks a unit of over-the-road drivers
employed jointly by Armour and Manpower.
Manpower's position is that it would recognize and
bargain with Petitioner for the unit requested in the
petition. Armour's contentions that it is not an
employer of these drivers, and, in the alternative,
that if the Board determines that it is an employer of
the drivers its contract with Local 3148 acts as a
bar, have been disposed of. Accordingly, we find
that the following employees of the Joint Employers,
Armour and Manpower, constitute an appropriate
5 RCA Communications , Inc., 154 NLRB 34
MANPOWER, INC. 289
unit for the purposes of collective bargaining within watchmen, guards, and supervisors as defined in the
the meaning of Section 9(b) of the Act: Act. 6
All over-the-road drivers employed jointly by
Manpower and Armour, excluding all production [Text of Direction of Election omitted from
and maintenance employees, clerical employees, publication.7]
6 The unit appears as amended at the hearing . No extension of time to file this list shall be granted by the
7 An election eligibility list, containing the names and Regional Director except in extraordinary circumstances Failure
addresses of all the eligible voters, must be filed by the Employer to comply with this requirement shall be grounds for setting aside
with the Regional Director for Region 26 within 7 days after the the election whenever proper objections are filed . Excelsior
date of this Decision and Direction of Election The Regional Underwear Inc , 156 NLRB 1236
Director shall make the list available to all parties to the election.