North American Van Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 10, 1988

288 N.L.R.B. 38 (N.L.R.B. 1988)

38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
North American Van Lines, Inc. and North Ameri-
can Benevolent Association, Local #1 and
North American Van Lines Commercial Trans-
port Advisory Council, Party in Interest. Case
25-CA-16614-2
March 10, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On June 27, 1986, Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, 1 and the General Counsel filed an an-
swering brief. The American Trucking Associa-
tions, Inc. filed an amicus curiae brief.
The National Labor Relations Board has delegat- '
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order.
The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversmg
the findings.
The Respondent also asserts that the judge's decision is the result of
bias and prejudice and requests an "independent review" by the Board
with separate findings of fact and conclusions of law. We find the Re-
spondent's allegations and request are without merit. As stated by the
Board in Penn Color, Inc. 261 NLRB 395 (1982), "Where is no basis for
finding that bias and partiality existed merely because an admimstrative
law judge resolved important factual conflicts in favor of the General
Counsel's witnesses." Accord: NLRB v. Pittsburgh Steamship Co., 337
U.S 656, 659 (1949) ("[T]otal rejection of an opposed view cannot of
itself impugn the integrity or competence of a trier of fact")
The North American Benevolent Association's (NABA) status as a
labor organization is irrelevant to the findings in this case. Accordingly,
we do not pass on the judge's statement that NABA is a labor organiza-
tion, or that the Respondent allegedly admitted its labor organization
status
In sec. IV, par. 9 the judge correctly stated that the General Counsel's
burden was to make a prima facie showing of employee status, and that
the burden shifted to the Respondent to defend by showing that the per-
sons involved were not in faa employees. The General Counsel was then
entitled to make a rebuttal presentation. Cf, , e g., Licensed Tugmen's
Pilots Protective Assn , 138 NLRB 222, 228 (1962). (The General Counsel
has the burden to prove Sec. 2(5) "labor organization" status) We find it
unnecessary to pass, therefore, on any of the judge's other characteriza-
tions of the respective burdens. In the same section, the judge incorrectly
stated that certain documents "were not made available in response to the
General Counsel's original subpoena" The error is inconsequential. Final-
ly, we affirm the judge's disposition of the "evidentiary matters" raised in
sec. IV
No party excepted to the judge's treatment of the 10(b) issue.
288 NLRB No. 11
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, North
American Van Lines, Inc., Fort Wayne, Indiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order, except that
the attached notice is substituted for that of the ad-
ministrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
The Board also found that the owner-operators
in the Commercial Transport Division, as a class,
are employees within the meaning of the National
Labor Relations Act.
WE WILL NOT dominate, assist, support, or oth-
erwise interfere with the formation or administra-
tion of North American Van Lines Commercial
Transport Division Drivers Advisory Council or
any other labor organization of our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed by Section 7 of
the Act.
WE WILL completely disestablish the Drivers
Advisory Council.
NORTH AMERICAN VAN LINES, INC.
J. Frederick Gatzke, Esq. and Cornell A. Overstreet, Esq.,
for the General Counsel.
Duane L. Aldrich, Esq., of Washington, D.C.
James H. Coil, III, Esq. and Diane L. Prucino, Esq., of
Atlanta, Georgia. —
Thomas A. Cox, Esq., of Fort Wayne, Indiana, for the
Respondent.
Thomas Boswell, of Wood River, Illinois, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Fort Wayne, Indiana, on vari-
ous dates in January, February, March, and September
1985. Subsequently, briefs were filed by the General
Counsel and Respondent and, in accordance with a spe-
cial procedure, reply briefs also were filed.
NORTH AMERICAN VAN LINES 39
The proceeding is based on a charge by the North
American Benevolent Association, Local No. 1 (NABA),
filed on 13 August 1984. The Regional Director's com-
plaint, dated 28 September 1984, alleges that Respondent
North American Van Lines, Inc. of Fort Wayne, Indi-
ana, violated Section 8(a)(1) and (2) of the National
Labor Relations Act by dominating and intefering with
the formation and administration of, and rendering un-
lawful assistance and support to, a labor organization. On
a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation, with a princi-
pal place of business in Fort Wayne, Indiana. It engages
in interstate and intrastate motor transportation, princi-
pally as an irregular route common carrier of general
commodities. It admits that it annually derives gross rev-
enues in excess of $50,000 from the transportation of
freight directly from Indiana to points outside Indiana
and that it derives annual gross revenues in excess of
$500,000, and I find that it is an employer engaged in,
commerce within the meaning of Section 2(2), (6), and,.
(7) of the Act. It also is admitted that the Benevolent As-
sociation is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent is a well-established, certified motor
common carrier of used household goods. Traditionally,
it has performed transportation services through the use
of agents and drivers who are owner-operators operating
under a leasing contract with the carrier. Over the years
its operations grew and evolved and, in addition to the
transportation of household goods, it became involved
with the movement of commodities having similar trans-
portation characteristics, such as new furniture (which is
transported either "cartoned" or blanket wrapped), as
well as electronics and other high value products. Since
1980, with the advent of a .substantial reduction of regu-
lation by the Interstate Commerce Commission, the Re-
spondent further expanded its scope of operation into the
transportation of general commercial freight and it has
now become the largest irregular route, motor carrier of
truckload traffic. During the course of the hearing, the
Norfolk Southern Corporation purchased Respondent
and, effective 21 June 1985, it became a subsidiary of
that company, along with the Norfolk and Western Rail-
way Company and Southern Railway Company. As of
the close of the hearing on 5 September one of Respond-
ent's vice presidents was unaware of any managerial or
operational changes in Respondent, except that he was
aware of an advertisement that acknowledged the acqui-
sition. Jointly, the railroads comprise the largest rail
system in the United States and, at the present time, the
parent company also is seeking approval of a proposal to
acquire the Conrail system.
The Respondent conducts its motor carrier operations
through three product-related divisions: commercial
transportation division (CT), formerly called new prod-
ucts division; household goods division (HHG), recently
renamed relocation systems, and high value products di-
vision (HVP), which formerly was designated the elec-
tronics division.
Respondent's headquarters in Fort Wayne utilizes the
services of various managerial, operational, clerical, and
related employees, not including drivers. It also uses the
services of various agents, especially in the household
goods area.
Although it owns a fleet of over 8000 trailers, Re-
spondents does not directly own any tractors. Instead, it
enters into leasing contracts, predominantly with individ-
uals, described as owner-operators, who provide the
tractor and performs the over-the-road driving. These
tractors are predominantly acquired by operators
through the Respondent's financial services affiliate,
which entity holds the title for the vehicle until at least
such time as financial obligations for the purchase of the
equipment are satisfied, and the driver request transfer of
the title. Other than its office, training, dispatching, and
related equipment, Respondent's only specific direct cap-
ital investment is in its trailers.
The high value products division utilized the services
of 500 to 600 owner-operators, and derives annual reve-
nues of approximately $125 million, while the household
goods division has 400 to 500 owner-operators and
annual revenues of $230 million. The commercial prod-
ucts division has 2500-2600 owner-operators and reve-
nues of $230 million annually.
Commercial products is further divided into four sepa-
rate fleets. The uncartoned fleet (blanket wrap) has ap-
proximately 225 owner-operators and specializes in the
transportation of new furniture and fixtures that are not
packaged in boxes or other containers. The dedicated
fleet (turn fleet), utilizes 200 owner-operators and pro-
vides services to shippers with regular and time-critical
transportation needs. The double-operation fleet, with
another 200 owner-operators, also provides transporta-
tion services to shippers with timely transit requirements,
utilizing two drivers per tractor. The approximately 1800
remaining owner-operators make up the random fleet,
which performs the majority of the division's services by
transporting freight on a call-on demand, irregular basis.
Commercial products primarily utilizes owner-opera-
tors with one tractor; however, there are 85 owners of
more than 1 tractor with an aggregate of 336 vehicles.
The largest of these owners has 61 tractors, several
owners have between 13 and 19, and one has about 25.
Additionally, 17 owner-operators are incorporated, 12 of
which are multiple vehicle owners.
In the latter part of 1982, the Interstate Commerce
Commission (ICC) began an investigation proceeding to
determine whether the Respondent had engaged in un-
reasonable practices pertaining to its dealings with
owner-operators in violation of applicable rules and reg-
ulations. A hearing was held on 16 March 1984, and an
administrative law judge issued a decision that set forth a
detailed factual summary of Respondent's operations and
found that Respondent had engaged in described unrea-
sonable practices, and proposed various remedial actions.
40
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A copy of this decision was made a part of the record,
over Respondent's objections. Subsequent to the close of
this hearing Respondent's counsel forwarded a copy of a
decision dated 12 November 1985 in which the entire
Interstate Commerce Commission, with three commis-
sioners dissenting, discontinued the proceeding on juris-
dictional grounds, finding that the dealing between Re-
spondent and its owner-operators did not constitute a
practice related to transportation or service within the
meaning of the statute.
Under the circumstances, I take official notice of the
latter decision of the Interstate Commerce Commission.
Hearings relative to the ICC investigation began in
January 1983 and continued on intermittent dates
through September 1983. Contemporaneously with these
hearings, Respondent began to pursue a concept originat-
ed by John Bowron, a former executive vice president
for Commercial Transport Fleet Operations. Bowron's
concept involved the creation of a "Drivers Advisory
Council" designed to provide a means and forum for
feedback and communications of ideas and policies be-
tween management and drivers. Bowron, who had
worked with a similar concept in Respondent's Canadian
affiliate, received the concurrence of Respondent's gen-
eral counsel and decided in late 1982 that it was time to
go ahead with the concept. Preliminary meetings were
held among management personnel and then with some
owner-operators in various parts of the country. By
letter dated 18 April 1983, Vice President of Operations
Mark Hobz,ek announced the decision in a special bulle-
tin that told of the Company's plan to establish a council
of owner-operators that would meet quarterly beginning
in June, and he requested that persons interested in par-
ticipating let him know.
During this same period of time Respondent also
became involved in a dispute that resulted in a charge
brought before this Board. During November 1982, after
a series of disagreements with management, Thomas Bos-
well became a member and activist in the Benevolent
Association. He was confronted by then Director of
Contractor Relations Dick Taylor while distributing as-
sociation newsletters in the owner-operator lounge and
requested to stop. Subsequently, he again was observed
distributing newsletters to tractors parked at Respond-
ent's Fort Wayne facility; shortly thereafter, his contract
was terminated. A charge was made and a complaint
was issued by the Board. The dispute was resolved in a
settlement that resulted in Boswell's reaffiliation with Re-
spondent.
After Boswell returned as an owner-operator in mid-
April 1983, he volunteered to serve on the advisory
council, but subsequently received a letter saying he had
not been selected.
The first meeting of the council was held in June 1983.
Subsequent regular meetings occurred in October and
December 1983 and April, July, and October 1984. Each
meeting lasted for 2 days and was attended by 12 owner-
operator council members, plus Director of Contractor
Relations Kevin Lewis, several other management offi-
cials, and a secretary, who took minutes of all the meet-
ings. A letter prepared by Lewis was sent to all drivers
in the fleet describing the highlights of what occurred at
each meeting.
Attendance at the meetings was limited to council
members and authorized management personnel. Thomas
Boswell made an attempt to attend a meeting in July
1984, but was informed by Lewis that it was a closed
meeting, and was told to leave.
In August, Boswell, on behalf of the benevolent asso-
ciation, filed the charge underlying these proceedings.
III. ISSUES
Section 8(a)(2) and (1) of the Act proscribes conduct
by an employer that dominates and interferes with, or
provides unlawful assistance and support to, a labor or-
ganization. Here, it is shown that Respondent established
a "Drivers Advisory Council" of so called owner-opera-
tors. The circumstances under which the council was or-
ganized and operated raise the issues of (1) whether the
council is a labor organization and (2) whether Respond-
ent dominated and interfered with the formation and ad-
ministration of the council and provided it with unlawful
assistance and support.
Respondent denies the Council's status as a labor orga-
nization and, most specifically, pleads that the drivers in-
volved are each independent contractors and are not em-
ployees whose working conditions are subject to the pro-
visions of the Act. Accordingly, the preliminary issue is
presented whether the owner-operators who perform Re-
spondent's transportation services are properly classified
as employees or independent contractors.
IV. EVIDENTIARY MA! MRS
On brief, Respondent again raises several evidentiary
matters, the first of which relates to the admission into
evidence of the initial decision of the administrative law
judge in the proceeding before the Interstate Commerce
Commission As noted, the Respondent has submitted a
copy of a final decision by the Commission dismissing
that proceeding.
Here, I fmd the admission into evidence of a public de-
cision of a Federal agency falls within an exception to
the hearsay rules, and that the document is clearly ad-
missible. Respondent also argues that the decision is not
entitled to be given any weight. In the instant case, the
General Counsel has fully developed a record independ-
ently of that presented in the ICC proceeding and I
therefore rely on this record in reaching my decision re-
garding the independent contractor—employee status of
Respondent's drivers. Although there was no necessity
for turning to any particular factual conclusions reached
in this other proceeding, a perfunctory review makes it
clear that the General Counsel did utilize that decision in
formulating his presentation in this proceeding and there
appears to be an obvious repetition of common or similar
information. I find such background information espe-
cially relevant to any evaluation of the consistency of
witnesses testimony in this hearing. The factual finding
in the ICC decision in numerous instances has been ex-
plained and corroborated on this record and I find that it
enhances the inherent trustworthiness of the administra-
tive law judges' recitation of facts concerning common
NORTH AMERICAN VAN LINES 41
areas of inquiry. Under these circumstances, I find that it
is appropriate to give relevant weight to matters set forth
in the ICC decision, especially concerning background
information and the testimony of common witnesses or
evidence of common events. Accordingly, Respondent's
request that it be stricken from the record and given no
weight is denied.
Second, Respondent argues that several exhibits, con-
sisting of notes and minutes of the drivers advisory coun-
cil meetings and various "Owner-operator Analysis
Forms," are unreliable hearsay and should be excluded.
First, it is noted that the notes and minutes were pre-
pared by Respondent's director of contractor relations,
Kevin Lewis, in the course of his duties and retained as
general business documents in Respondent's files. Lewis
was examined extensively by both the General Counsel
and Respondent and, to the extent the notes indicated
comments by other individuals, many of these same per-
sons, such as Respondent's present vice president, James
Phillabaum, also were examined extensively. The testi-
mony tends to corroborate the reliability of the exhibits
and, otherwise, there is no claim that other declarants,
specifically drivers who were members of the Council,
could not have been called to testify about particular no-
tation of their comments.
The information in the analysis form recites, among
other things, comments recorded by Respondent's coun-
selors concerning their phone discussions with drivers
and their actions taken on problems. The counselor's
notes paraphrase remarks made by drivers and are re-
corded on specific forms supplied by Respondent. They
are used by Respondent as support for termination or
other actions dealing with drivers and are retained in Re-
spondent's business files.
Specifically, I find that the exhibits that purport to be
statements of council members and other drivers are non-
hearsay inasmuch as the notes are offered to show that
persons made statements and not to show the specific
truthfulness of the comments attributed to them. The no-
tation of comments in the context of minutes of the
council meetings and reports of phone conversations be-
tween a driver and his counselor also convey a present
tense impression and, overall, these records of regularly
and routinely conducted business activity show not only
trustworthiness but also indicate that the information
contained is of more probative value than possible other
reasonably procurable information. Accordingly, I find
that even if the comments were considered to be hear-
say, they are relevant, display clear evidence of trust-
worthiness, and are otherwise admissible and entitled to
consideration under the regular business records excep-
tion to the hearsay rule. Accordingly, I affirm my ruling
admitting these exhibits.
Finally, Respondent objects to the receipt into evi-
dence of certain confidential job evaluations made by
Respondent of its dispatchers and counselors. These doc-
uments were offered at a continued hearing as part of the
General Counsel's rebuttal presentation subsequent to the
issuance of a subpoena, Respondent's refusal to honor the
subpoena, and an order of the United States district
court, dated 18 June 1985, that enforced the subpoena.
The court also ruled that it was not within the district
court's province to make an evidentiary ruling of the
propriety of the evidence as rebuttal and it deferred to
the administrative law judge the issue of whether the
evaluations were properly admissible as rebuttal evi-
dence. Otherwise, the court held that the privacy inter-
ests of the counselors and the dispatchers could be pro-
tected by redacting their names from the evaluations and
by using pseudonyms in the place of their real names. At
the further hearing subsequent to the court's decision, I
received the proffered evaluations, but I reserved a
ruling on their admissibility until the matter could be
briefed.
Respondent argues that the rebuttal process may not
be used to present evidence that might appropriately
have been introduced in the case-in-chief, and that the
presentation of these documents is an effort by the Gen-
eral Counsel to reopen his case-in-chief and pursue an
entirely new line of inquiry to buttress his contention
that Respondent's Commercial Transport disptachers and
counselors act as supervisors.
As otherwise discussed, a party who claims as a de-
fense to an unfair labor practice charge that the persons
involved are not in fact employees, bears the burden of
proving this claim. Under these circumstances, it is espe-
cially appropriate for the General Counsel to utilize the
rebuttal process to answer Respondent's defense. Thus,
in the light of Respondent's pleaded defense that its driv-
ers are not employees, the General Counsel was required
only to make a prima facie showing of employee status.
The burden then rests on Respondent to support it de-
fense and the General Counsel was entitled to make an
appropriate rebuttal presentation. Here, as a matter of
procedural convenience and as an aid to the timeliness of
the hearing process, the General Counsel went well
beyond his initial burden in his presentation of a prima
facie case; however, by so doing he cannot be precluded
from responding to the Respondent's evidentiary thrust
in the presentation of its pleaded defense. Here, I also
note that the documents apparently were not made avail-
able in response to the General Counsel's original sub-
poena of documents at the beginning of the hearing.
However, subsequent testimony identified the existence
of such documents as potentially relevant material perti-
nent to the issue of supervisory status of dispatchers and
counselors and control, a key element in evaluation of
the employee status issues, as well as the possibility of in-
consistent testimony by Respondent's witnesses.
Under these circumstances, I conclude that the confi-
dential job evaluations of Respondent's dispatchers and
counselors as introduced into evidence as General Coun-
sel's Exhibits 142-211 constitute proper and material re-
buttal evidence, and they are admitted into evidence.
V. INDEPENDENT CONTRACTOR STATUS-
APPLICABLE LEGAL STANDARD
Section 2(3) of the National Labor Relations Act pro-
vides that coverage is extended to "employees," but not
to "individuals having the status of an independent con-
tractor." As noted by Respondent, this express statutory
exclusion of independent contractors was not contained
in the original Act, but was added by Congress in 1974.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent asserts that the Congressional intent was to
remedy what was viewed as the Board's previous overly
broad definition of the term "employee," by clarifying
the Act to exclude persons having the status of indepe-
dent contractors in the traditional sense. The term "inde-
pendent contractor" was not defined in the Act; howev-
er, the Board and Federal courts have since devised an
evaluation based on the common-law agency test to de-
termine whether a individual is an employee or an inde-
pendent contractor. See NLRB v. United Insurance Co.,
390 U.S 254 (1968), and Seafarers Local 777 v. NLRB,
603 F.2d 862, 909 (D.C. Cir. 1978); Tarheels Coals, 253
NLRB 563, 566 (1980).
Here, I also find that standard rules of construction
generaly place the burden of proof on one who claims
the benefit of a statutory exclusion, U.S. v. First City
Natl. Bank, 386 U.S. 361 (1967). It also is recognized
that exemptions generally are to be narrowly, but sensi-
bly construed to give effect to statutory purposes and
that such construction should not reach a result at vari-
ance with the policy of an Act or serve to destroy the
remedial processes of the Act as a whole, Brennan v.
Valley Towing Co., 515 F.2d 100 (1975).
In Abell Publishing Co., 270 NLRB 1200 (1984), the
Board, citing Fort Wayne Newspapers, 263 NLRB 854
(1982), restated the common law "right to control" test
as follows:
If the alleged employer retains the right to con-
trol the manner and means by which the [job] re-
sults are to be accomplished, the person who per-
forms the service is an employee. If only the results
are controlled, the person performing the services is
an independent contractor.
In Standard Oil Co., 230 NLRB 967 (1977), cited by
the General Counsel, the Board used the general provi-
sions of the Restatement 2d, Agency 220 (1985), and set
forth standards that parallel the Restatement, stating:
Among factors considered significant at common
law in connection with the "right to control" test in
determining whether an employment relationship
exists are (1) whether individuals perform functions
that are an essential part of the Company's normal
operation or operate an independent business; (2)
whether they have a permanent working arrange-
ment with the Company which will ordinarily con-
tinue as long as performance is satisfactory; (3)
whether they do business in the Company's name
with assistance and guidance from the Company's
personnel and ordinarily sell only the Company's
products; (4) whether the agreement which contains
the terms and conditions under which they operate
is promulgated and changed unilaterally by the
Company; (5) whether they account to the Compa-
ny for the funds they collect under a regular report-
ing procedure prescribed by the Company; (6)
whether particular skills are required for the oper-
ations subject to the contract; (7) whether they
have a proprietary interest in the work in which
they are engaged; and (8) whether they have the
opportunity to make decisions which involve risks
taken by the independent businessman which may
result in profit or loss.
As noted both by the General Counsel and the Re-
spondent, the test is not easy or definitive in its applica-
tion. Over the years, various incidents of the relationship
have been assessed as being most significant in certain
circumstances, but no particular factors are decisive. The
Board has exercised a wide-ranging discretion in its eval-
uation of various factors under varying circumstances,
resulting in a history of case law where seemingly inap-
posite decisions are not uncommon and here, the respec-
tive parties each cite numerous such past evaluations in
supoport of their respective positions.
Respondent specifically urges that significant indica-
tors of independent contractor status are whether the
owner-operator has an investment in his equipment and
bears the entrepreneurial risks of profit and loss, whether
the parties intended to create an independent contractor
relationship, and whether the parties' dealings with each
other are consistent with such a relationship. Respondent
also relies on the Board's recent decision in Don Bass
Trucking, 275 NLRB 1172 (1985), especially in regard to
the effect of compliance with Government regulations as
evidence of employer-type control.
The General Counsel also argues that given the com-
plex and somewhat novel nature of Respondent's oper-
ations, prior cases may be of little precedential value
here, and he urges that the case be judged on an ad hoc
basis within the frame work of Standard Oil, supra.
I have reviewed the record in light of the cases cited,
as well as other recent decisions of the Board. The
record was developed through detailed examination on
numerous documents and direct and cross-examination of
many owner-operators, managers, and operational per-
sonnel. Despite the lengthy record developed, I find that
few basic facts are seriously in dispute. The parties, how-
ever, differ sharply on what factual conclusion or inter-
pretations are to be drawn.
VI. INDEPENDENT CONTRACTOR STATUS-FACTUAL
BACKGROUND
The principal aspects of Respondent's management-
driver relationship cover several major areas, specifical-
ly: recruitment and training, fmancing and licensing of
equipment, the contractual agreement and its termina-
tion; day-to-day operations, and, in a broad scene, the
overall nature of Respondent's business. The record will
be discussed in terms of predominant or significant oc-
currences; however, it is recognized that these conclu-
sions are not descriptions of absolutes. Thus, it is ac-
knowledged that the record may contain exceptions or
examples of conflicting occurrences that tend to indicate
that there are some fleet operators of individual owner-
operators who, by virtue of their relative financial inde-
pendence or other entrepreneurial factors, may have de-
veloped and maintained an independence untypical of the
vast majority of Respondent's mainstream drivers. Ac-
cordingly, the following evidentiary descriptions are di-
rected at the predominant management-driver relation-
ship and are not intended to preclude recognition of
NORTH AMERICAN VAN LINES 43
some individual situations that could show a true inde-
pendent status for some owner-operators.1
As noted above, Respondent's commercial transport
fleet has undergone major growth over the last several
years. Also, the drivers utilized by this fleet show an ex-
tremely high annual turnover rate. Specifically, in 1984,
1154 drivers left out of a total of 2589 drivers active at
the end of the year, a turnover rate of approximately 45
percent. As a result of these factors, Respondent has en-
gaged in extensive recruitment of prospective drivers.
While it expresses a preference for obtaining experi-
enced, Department of Transportation (DOT) qualified
drivers who own a tractor, it recognizes the reality that
it can obtain only a few such drivers. Accordingly, it
maintains a recruiting department that seeks out new re-
cruits on a basically continuous basis for training pro-
grams that occur repeatedly through the year. It relies
heavily on advertisements in newspapers and magazines.
A key feature in such advertisements is an indication that
no experience is necessary. For example, in the Army
Times, Respondent's advertisement in part reads:
We will train you. Free—over 70% our 0-0s had
never driven a rig before. We will teach you what
you need to know. And teach you right for free.
Respondent's ads also play up to a driver's interest in
independence, emphasizing
Have you ever dreamed of owning and operating
your own successful business? If so, we'd like to
talk to you. We are North American Van Lines,
and we move our shippers' goods—both household
goods and new manufactured products—with a fleet
of owner-operators. Independent business men who
own their own trucks. Run their own lives. Set
their own hours. And answer to themselves.
Selection for training is done on a first come, first
serve basis after an individual has first talked on the
phone with a recruiter, reviewed other promotional ma-
terial (which included descriptions of the lifestyle of a
driver and comments that they run their own business
without supervision from Respondent), and returned a
signed "Statement of Understanding" that he will oper-
ate on a self-employment basis, as well as a DOT request
for qualification and certification (including physical and
driver's record information), and a credit statement appli-
cable to his purchase of a tractor through Respondent.
Training generally consists of a 2-week course, which
approximately 70 percent of the new drivers attend.
Other applicants, who already are DOT-qualified driv-
ers, take a shorter course. The training consists of in-
struction in DOT requirements, paperwork handling, in-
struction on business aspects of working with Respond-
ent, and driving instruction. On successful completion of
a written and driving test, the new driver signs a con-
tractor's hauling agreement. The terms of the agreement
are the same for all drivers in the commercial transport
'This, however, could present a situation where a multiunit contractor
could be considered to be a supervisor of persons employed to drive his
tractors.
division and are not negotiable on an individual basis.
Some drivers have attempted to Write in changes but
they have not been honored. Respondent's director of
fleet development testified that the training expenses
(drivers pay their own room and board) is outcosted to
the various fleets at a rate of $970 per driver. Although
Respondent contends that such costs are recouped by a
reduced rate of compensation for a driver's first , 65,000
miles, this lower rate is paid to any driver who has not
covered 65,000 miles in the previous 12 months. Other-
wise, Respondent specifically refers to its payment of 4
cents a mile "hauling premium" for drivers operating
over 65,000 miles annually.
With rare exceptions, lead drivers for multiunit opera-
tors also undergo the training programs. Respondent oth-
erwise controls the circumstances under which an exist-
ing operator can become a multiunit operator by requir-
ing him to have a good operating and safety record and
a recommendation from his dispatch, it allows operator
to become a multiunit operator.
Although Respondent's advertising portrays the driv-
er's position as an opportunity to invest in a business, the
recruits primarily appear to be persons who liked the
idea of having a job where a boss is not always looking
over their shoulder and who are otherwise willing to
invest in the downpayment of several thousand dollars
for a tractor. In effect, this downpayment appears to be
comparable to a franchise or the brokerage fee paid to
Respondent in exchange for the right to operate under
Respondent's authority hauling freight obtained by Re-
spondent's solicitation efforts.
Respondent considers a driver's willingness to invest in
the position as some indication of his reliability; howev-
er, it appears that Respondent also makes use of the in-
vestment and the corresponding indebtedness as a moti-
vational tool to maximize the driver's willingness to
comply with the Company's efforts to control the dis-
patch of traffic.
Respondent presents the driver's "ownership" of a
tractor as a principal indication of a proprietary interest
in an independent business; however, approximately 95
percent of all drivers obtain and finance a tractor from
Respondent, financing it through a division of the Com-
pany. The Company generally offers recruits a choice
from two new models, the brands of which may change
from year to year and, when available, the choice of a
used tractor turned in by other drivers. The conditional
sales agreement entered into provides for an acceleration
of the debt due on the truck on the termination of the
driver's hauling agreement with the Company, for what-
ever reason. While Respondent does permit drivers to
bring their own tractors into the fleet, the tractor must
meet basic DOT specifications and, in addition, company
specifications regarding age, horsepower, axles, size, and
cosmetic condition. Currently, the usual downpayment is
10 percent, with a 5-year term at 8 percent, an effective
rate of 14.2 percent. The note is usually transferred by
Respondent to a financial institution; however, Respond-
ent regularly deducts payments from the driver commis-
sions and forwards them to the note holder.
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shippers make damage claims against the Company
rather than individual drivers, but most cargo claims in-
volving driver's negligence are charged back to the
driver at a maximum of $50 per shipment, while claims
resulting from failure to follow "seal procedure" are
shared by Respondent and the drivers up to a maximum
charge back of 50 percent. With the exception of the
base plate license, Respondent pays for and "assists" the
drivers in obtaining all other required permits and li-
censes at no cost.
The General Counsel emphasizes that Respondent's
conditional sales contract differs from that of a typical
sales contract by the absence of a late-payment penalty
provision. In contrast, Respondent's contract authorizes
the secured party to advance payments on behalf of the
debtor, requiring only that the debtor repay these ad-
vances. Thus, when a driver's mileage commission is in-
sufficient to cover the installment payment due on the
tractor, Respondent, who otherwise automatically de-
ducts the payment from the commission, advances pay-
ment penalty free. This, in effect, amounts to an interest-
free loan provided to drivers whose commissions do not
cover the amount of the installment payment, a proce-
dure that lessens the risk of loss in the investment that
would normally be borne by an independent contractor.
Respondent also finances for free all other debits that a
driver may accumulate, with the exception of the interest
it charges on specifically issued sidenotes. The actual av-
erage debit balance per driver in the commercial trans-.
port fleet is near $300 per week, an average total financ-
ing of driver operations by Respondent of approximately
$780,000 weekly.
All company-financed tractors are registered in Indi-
ana under Respondent's name and the title remains in
Respondent's name, even after all payments are made,
unless a driver then makes a specific effort to request
that the title be issued in his own name. Although excep-
tions are sometimes authorized, Respondent also requires
that drivers who operate financed tractors conffilt with it
before making repairs and it often requires drivers to
return vehicles to Fort Wayne for repair. Of current
drivers in the commercial transport division, 100 origi-
nally had their own titles and 100 others had titles trans-
ferred to them on completion of payment. The tractor
purchase-finance arrangement also is contingent on the
driver maintaining his hauling agreement with the Com-
pany and the agreement specifically provides that all fi-
nancing be satisfied at the time of contract termination.
If outside financing is not arranged, Respondent will
either "buy back" the driver's equity or repossess the
unit.
Respondent also requires each contracting driver to
maintain a $3000 "reserve fund," started by a $500 de-
posit and increased with a $20 weekly withholding. This
fund is designed to offset any debit balance existing at
the time of termination.
Respondent points out that the Company goes to great
lengths to ensure that every driver who signs a contract
intends to assume the status of an independent contractor
and each driver must sign a statement of understanding
in which he acknowledges that he will be self-employed.
The contract also provides that the drivers shall not be
treated as employees of North American for purposes of
the Federal Insurance Contributions Act, the Social Se-
curity Act, the Federal Unemployment Tax Act, or
income tax withholdings, and Respondent makes no
withholdings from payment to drivers for these purposes.
In 1973, the Internal Revenue Service issued a memoran-
dum of technical advice in which it concluded that the
Company's owner-operators constituted independent
contractors rather than employees for Federal employ-
ment tax purposes. That memorandum also concluded
that, to the extent owner-operators hire assistants to per-
form services under their direction and control, they
constitute employers of such assistants for purposes of
Federal tax liabilities.
Respondent also points out that its drivers do not
enjoy the numerous benefits and other attributes of em-
ployment enjoyed by its many clerical and other compa-
ny personnel, who admittedly are employees. Instead,
the drivers' direct compensation is based on a cents-per-
miles formula that decreases as the length of a trip in-
creases, and it varies whether the trailer is carrying
freight or empty (deadhead). The rate increases by 4
cents a mile after a unit runs 65,000 authorized miles in a
12-month period, and additional compensation is provid-
ed for performing accessorial services, such as making
multiple pickup and delivery stops, or for authorized de-
tention of layover time. Also, the payment of cash bo-
nuses as an inducement for hauling critical loads also
occurs frequently and the total amount of such payments
by the commercial transport division in 1984 was in
excess of $750,000.
Respondent provides a variety of programs and means
to support the drivers in the performance of their haul-
ing services. It has established several fleet service facili-
ties where, in addition to providing a convenient place
for drivers to purchase fuel and obtain oil changes, lubes,
and trailer repairs, there are shower facilities, laundry fa-
cilities, and a lounge, all of which Respondent provides
free of cost. Respondent also issues owner-operator bul-
letins and other guidelines that apprise the drivers of its
policies and procedures and offer suggestions on how to
accomplish the job. It also has a fleet registration depart-
ment that assists drivers in obtaining any Federal or state
permits and licensing that are required.
Respondent provides drivers with all necessary freight
documents and other necessary paperwork as well as all
required forms for their obtaining collision, comprehen-
sive, public liability and property damage, bobtail insur-
ance, and medical and dental coverage. The driver is re-
quired to have collision insurance and comprehensive is
required if he finances his tractor through the Company.
Bobtail insurance is mandatory whether the tractor is
purchased through Respondent or outside. If the driver
decides to procure the mandatory public liability and
property damage insurance through a source other than
Respondent, he receives increased compensation from
Respondent at the rate of 1 cent per dispatched mile. De-
ductions for workman's compensation coverage are also
mandatory and when this practice began about 3 years
ago, Respondent correspondingly increased compensa-
NORTH AMERICAN VAN LINES 45
tion to 7 cents per mile to offset the increased cost to the
driver.
Respondent provides a comprehensive system of ad-
vances and loans to its drivers, which are authorized by
the dispatcher after a driver has agreed to take a particu-
lar load. Generally, the advance is made through a
"Comecheck" system with a service charge paid by the
driver. Advances generally are at a rate of 30 cents a
mile plus $50 up to $1000, and are debited by the Re-
spondent against the mileage commission paid for that
load when the weekly statement is made out. Other ad-
vances and side loans can be obtained through permis-
sion of a driver's "counselor" in order to cover special
expenses, such as fines and major repairs, that are unre-
lated to a particular load.
Respondent's statistics for 1983 and 1984 show that the
commercial transport division had 2501 and 2589 active
contractors, respectively, at the end of each year, and
that during the same years it terminated 622 and 1154,
respectively. While the turnover for 1984 approached a
rate of 50 percent, Respondent indicated that an average
for the 2 years is approximately 26 percent.
Respondent's records of terminations have a space for
indicating whether the termination was initiated by the
Company or the driver, and Respondent contends that
approximately 95 percent of the contract terminations
that occurred during these 2 years were actually owner-
operator initiated. Many different reasons are listed for
both driver-initiated and admitted company-initiated ter-
mination, including: fleet changes, 254; away from home,
174; family, 128; unknown, 127; dissatisfied/not suited,
115; insufficient income, 105; health, 105; accident, 24;
abandoned unit, 50; other, 512; disqualified, 58; poor per-
formance, 49; and high debit, 22. Respondent contends
that only the latter three reasons truly reflect termination
at the Company's initiative. I find, however, that the so-
called driver initiated termination, such as "away from
home," dissatisfied/not suited, and "insufficient income,"
as further discussed below, appear to be highly influ-
enced by Respondent's manipulation of the drivers
through its dispatch procedures and therefore reflect ter-
minations that can be considered relevant to the matter
of company control over drivers.
With the exception of an initial period of 35 days, the
lease agreement entered into between Respondent and its
drivers continues in effect indefinitely, subject only to
the rights of either party to terminate upon 30 days'
notice and the Company's further right to terminate for
any of six reasons specified in the contract. As part of its
termination process and its apparent effort to influence
the manner in which drivers operate under their hauling
agreement, the commercial transport fleet administration
department uses a form letter, commonly referred to as a
30-day letter, admittedly to attempt to motivate im-
proved performance by drivers who have incurred a
high debit balance or caused customer service failures.
The letter informs the driver that the Company views
the problem in a serious light and will review his run-
ning record at the end of 30 days to determine whether
it wishes to continue the contractual relationship. Such
letters usually are read to and discussed with the driver
over the telephone by his counselor. Respondent asserts
that the issuance of a 30-day letter does not indicate that
a decision has been made to terminate and, at the conclu-
sion of the 30-day period, the driver's record is re-
viewed, usually by his counselor, and a decision is made
whether to continue the contractual relationship, to issue
another 30-day letter, or to terminate.
Despite the high turnover rate, many drivers adjust
successfully to the lifestyle and practices involved and,
as evidenced by the work histories of several witnesses,
the "indefinite" contract term can continue for as many
as 12 years. Moreover, as indicated, 254 drivers "termi-
nated" from the commercial transport fleet during 1983
and 1984 actually did not leave completely but
"changed" or transferred, to one of Respondent's other
fleets or divisions.
The change or transfer from one fleet to another is
generally understood by drivers to be a form of advance-
ment. Although some recruits may initially enter another
fleet, the vast majority of new drivers begin with the
commercial transport division "random" fleet. Respond-
ent, however, tells recruits about the possibility of trans-
fer and, in fact, its recruiting brochure specifically uses
the phrase "request transfer," and recruits are told that it
is an advancement opportunity. Respondent, however,
argues that selection by another division is an independ-
ent contractual event and is not a transfer. One driver
specifically testified that his class was repeatedly told
that if they kept their nose clean, were accident free, did
their job, and were not troublemakers that they could be
up for better runs and for opportunities in the dedicated
fleet, which made more money. Also, regular company
bulletins to the random fleet drivers emphasizes the op-
portunity for increased income in the "uncartoned" fleet.
The "uncartoned" gets 90 percent of its drivers from
random and it holds out to transfers the opportunity for
increased income, more personalized dispatch proce-
dures, and working more with the same customers.
During the period 1 January 1983 through 14 January
1985, 183 commercial transport drivers transferred to the
"high value products" division (18 went in the reverse).
The selection process involves a review of the factors re-
corded in the driver's file and the driver's "counselor" or
dispatch supervisor is usually questioned by management
personnel in the hiring fleet of division. Inquiries are
made regarding the driver's performance record in rela-
tion to factors such as on time pickup and delivering and
effective "communication" with dispatchers and custom-
ers. In this connection, the General Counsel argues that
in the context used, the term "effective communication"
means "getting along" and that it should be inferred that
it indicates an evaluation of how well the driver has co-
operated with Respondent's efforts to dispatch traffic.
A vice president of operations and administration testi-
fied that most random drivers perceive the "dedicated"
fleet as something better as it invloves more stable runs,
and that most dedicated fleet drivers do not desire to go
back to random, and that such drivers have more activi-
ty than random drivers. A communication to random
drivers in the company newsletter for January-February
1983 stated that the minimum qualifications for consider-
ation for selection to the "turn fleet" (dedicated) were
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1500 miles per week, be in the top 25 percent of the fleet
according to "quality assurance" ratings, and be recom-
mended by their "supervisor." Although Respondent dis-
claims the aecurracy of matters ,printed in its newsletters,
especially the use of the term "supervisor," and it further
asserts that the procedures discussed were not followed
or have since been changed, there is no indication that
Respondent published any correction of this information.
Otherwise, I find that the newsletter article is generally
consistent with testimony describing the selection proc-
ess and is indicative of the Company's managerial proce-
dures and practices. And, although some company wit-
nesses disclaim their use or reliance on "quality assur-
ance" ratings, I find that these ratings, as further dis-
cussed below, are accepted managerial tools used to
evaluate the performance of drivers.
The manager of the dedicated fleet testified that in the
selection process he would review the driver's personal
file, looking for such things as delay forms and customer
complaints, time out of service, miles per week, and utili-
zation, which is a driver's loads in a week. With regard
to miles/week, Respondent indicated that 1500 miles!-
week would be an acceptable figure. One former driver
testified he was rejected for turn fleet consideration be-
cause of insufficient miles, but was told that if he
brought his miles up, to call back. The manager also tes-
tified that he would send a memo to the random fleet
counselors seeking drivers who lived in a particular area
and would request they submit names of those interested,
preferably those who had a proven track record.
One of the Respondent's internal memorandum sets
forth its then-current policy for transfer to the high
value products division stating:
4. The next step, probably one of the most impor-
tant, is to contact the driver's current dispatcher in
New Products. This is vital because the dispatcher
porbably knows the driver as well as anyone does
at NAVL. The dispatcher knows how many loads
the driver has refused, if he consistently complains,
why he is in debit balance, his current statement
balance, if he runs as hard as New Products ex-
pects, etc. I always try to get the dispatchers to
give me their own personal opinion of the driver.
This can be extremely helpful because a driver's
personality does not show up in any records, but is
vitally important to his success in
One former driver was told by high value products that
he would need a good quality assurance rating and no
debit. Another driver testified a favorable recommenda-
tion from his dispatch supervisor was withdrawn after a
problem with a delayed load and some load refusals Re-
spondent's assessment records show that numerous per-
formance standards and attitudes are evaluated and noted
as well as notations about physical appearance that in-
cluded comments such as ones that said the drivers
would agree to shave his beard or get haircuts Similar
comments and evaluations also were made on internal
transfer request forms for Respondent's household goods
division.
In the conduct of its day-to-day business, Respondent
has formulated practices whereby driver contacts with
the Company are channeled through dispatchers and
"counselors." Respondent makes special efforts to avoid
the use of terms or titles that relate to the root "super-
vise" in relation to any dealing between the Company
and drivers. Respondent asserts that it employs no one to
supervise the drivers; however, testimony shows that the
role of the counselors was specifically designed to "en-
hance" the driver's performance of his freight hauling.
While Respondent's titles for various jobs have changed,
"fleet administrator" or "senior fleet administrator" have
engaged in similar functions and "dispatch supervisors"
alsb appear to have influential contact with drivers.
The counselors serve Respondent as the equivalent of
supervisors. They are assigned to a list of drivers and
their main function is to perform a variety of duties in-
cluding managing the drivers relation with the Company,
approving and issuing advances and purchase orders,
handling corrections to items on the drivers' quality as-
sur ance reports, receiving questions and complaints from
drivers, negotiating with drivers over sidenotes, perform-
ing a weekly financial analysis for each of their drivers,
initiating calls to drivers about shipper's complaints,
delays, and cargo claims, initiating calls to discuss with
drivers the reasons for their being out of service, coun-
seling drivers into returning to service and maximizing
their handling of loads, and answering general questions
a driver has about the business. New drivers apparently
are required to contact their counselors weekly. This
continues until they establish regular weekly mileage
over 2000 miles. The counselors regularly make evalua-
tions of their assigned drivers; these evaluations are uti-
lized by Respondent in transfers, quality assurance rat-
ings, and terminations.
Respondent also evaluates the counselors. Its records,
describing the abilities of the counselors, which makes
use of euphemisms avoiding specific "supervisory" terms,
reflect the use of phrases such as: was conscientious and
expected driver to be stern and made drivers increase
their performance; "uses tools (30 day letters, etc.) to
control debts; needs to take disciplinary action towards
repeated offenders; push drivers; can solve their prob-
lems and make them understand the correct way to do
things relating to their business—can be firm when [she]
has to; will work on keeping the drivers in service and
pushing them to run harder when the tonnage is avail-
able; and able to determine the times that it is not neces-
sary to have tight reigns on the out of service."
Respondent points out that drivers spend the majority
of their time on the road, unaccompanied by a company
representative and thus under no direct personal supervi-
sion. This situation, however, is inherent in the very
nature of the job and I find that it is not indicative, one
way or the other, of independent contractor status. The
representative of the Company that drivers most fre-
quently have contact with is one the many dispatchers
employed by Respondent. When a driver completes a
run or when he otherwise wishes to come back to work
from an "out of service" period (when he has not been
hauling freight for reasons such as vehicle repairs, illness,
NORTH AMERICAN VAN LINES 47
time off, etc.), he phones a "callback" operator, and pro-
vides the Company with basic information that includes
his identity, phone number, and location. The driver's
name is then added to the bottom of a continuously
maintained computerized list of drivers who are waiting
to be contacted by a dispatcher assigned to the particular
geographic region of the country from which the call
originated. Dispatchers generally return calls to drivers
by consulting the callback list and returning the oldest
call listed. Drivers, however, may be contacted at the
initiative of a counselor or a dispatcher, especially those
that have been in an out-of-service category. Respondent
describes the next stage in the dispatch process as the be-
ginning of "negotiations" between driver and dispatcher.
Respondent's extensive computer system monitors the
available freight, the assignment of loads, and the per-
formance of each driver. Thus, when a dispatcher talks
with a driver regarding the assignment of his next load,
his display screen tells him not only information about
loads available in a particular origin/region but also the
most recent information on the driver, including such
things as the location of his residence, his length of serv-
ice, type of contractor, identification of his counselor,
details of his last several loads, and amount of yearly av-
erage and last figure for each of the items: "cash home"
payment, deficit balance, number of shipments, mileage,
days home, and days out of service.2
The dispatchers are specifically trained not only in the
functions and use of the computer, but also in the art of
how to "sell" loads to the drivers, how to "stress" bene-
fits, and how to "overcome" objections.
The actual process of "negotiation" by the dispatcher
follows the training format. A driver's reluctance to
accept an offered load is met with a "selling" of load,
utilizing available computer data pertaining not only to
the load, but also information that relates to the driver's
performance record. Although Respondent disclaims that
dispatchers utilize "threats," it is clear from the testimo-
ny of some drivers and dispatchers that threats do occur
and the driver is faced with the future prospect of not
obtaining a timely load or a load with attractive mileage
not getting trips to desirable locations and having his
debit balance grow if he rejects the load suggested by
the dispatcher. Also, he is placed in a position in which
his nonacceptance of a load may be entered on the com-
puter record as a "refusal."
Once a load is accepted, the driver chooses his own
route and running hours; however, estimated pickup and
delivery times are established and transmitted to Re-
spondent's customers, and drivers are expected to meet
these goals.
There is no indication that drivers are allowed to oper-
ate (and lease to Respondent) their own trailers. Thus,
although drivers may paint or decorate their tractor as
they wish, the trailer utilized carries the prominent
colors and logo of the Company. The overall impact of
the unit conveys the impression that it represents the
2 The cash home information apparently is no longer initially available
to the dispatcher but may be called up, especially by a counselor. This
change apparently was made as a result of a complaint discussed at an
advisory counsel meeting.
Company and customers look to and deal with drivers as
representatives of the Respondent.
On occasion, especially in certain geographical areas,
when the Respondent has a shortage of out-bound
freight, some drivers have sought to personally deal with
potential cutomers by attempting to arrange a "trip
lease" or to haul freight that is exempt from economic
regulations. The basic agreement between the Company
and driver provides that drivers can trip lease, but only
subject to Respondent's prior authorization. Dispatchers
apparently are not authorized to grant such approval
and, in practice, approval from an authorized official is
very rarely given. On rare occasions, Respondent has
sometimes arranged lease loads for drivers in order to re-
locate a unit from a slow loading area to a heavier traffic
lane. Respondent's drivers's records contains some trip
leasing forms; however, there is no suggestion that these
trip leases were arranged by the driver and then ap-
proved by Respondent. Respondent also requires that the
credit rating of the potential shipper be confirmed before
authorization can be given and, in practice, the experi-
ences encountered by drivers show a lack of any coop-
eration by the Company. Also, for any trip leasing or in-
dependent hauling of a load, Respondent applies a penal-
ty of a $150 trailer rental fee and reserves the right to
terminate the driver for ones unauthorized trip.
Respondent's operations vice president testified that
drivers can trip lease as long as they operate under Re-
spondent's authority. He admitted that it did not encour-
age trip leasing, as the trailer belonged to Respondent,
and it appears that its real policy is not to grant requests
for permission to trip lease, regardless of the circum-
stances.
_
VII. INDEPENDENT CONTRACTORS STATUS—
CONCLUSIONS
My review of the record and the cases cited by the
parties as well as other recent decisions of the Board
lead to the conclusion that the prevailing relationship be-
tween Respondent and its drivers vest the right to con-
trol the manner and means by which the service is per-
formed in Respondent and therefore precludes the driv-
ers from status as independent contractors.
As a preliminary finding, I conclude that the status of
Respondent's drivers under the regulation of other agen-
cies is not determinative here. In this connection, it is
concluded that the holdings of the Interstate Commerce
Commission and the Internal Revenue Service (IRS) are
not of relevant value inasmuch as the ICC recently de-
clined to exercise jurisdiction and has made no formal
findings on the independent contractor issue, and the
IRS condsideration was in the primary form of a memo-
randum of technical advice issued in 1973, when Re-
spondent was primarily a hauler of household goods and
related commodities, well before Respondent's operations
had expanded to the size and scope of its current nation-
wide transportation of general commodities.
Respondent emphasizes its "intent" and its contractual
agreement with the drivers; however, the record shows
that Respondent's "intent" in designating its drivers as
independent contractors is an obvious effort to clothe the
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
relationship with the outward appearance of seeming in-
dependence. This intent does not control the ultimate re-
ality of Respondent's dealings with its drivers and it does
not control the evaluation of the relationship as it falls
within the applicability of the National Labor Relations
Act.
Here, a constant theme of Respondent's organizationl
and administrative process is to reiterate the concept of
independence and to avoid terminology that might infer
an employee-supervisor relationship. I find that this por-
trait of an independent relationship is a deliberate illusion
presented to drivers to induce them to perform basic
over-the-road driving services for the Company so that
the Company in turn may perform its common carrier
obligations. As an incident of this form of relationship,
the Respondent gains the perceived benefits of avoiding
direct and indirect labor cost and of avoiding significant
capital cost investment in costly tractor equipment, while
the driver obtains a cents-per-mile commission for the
time he spends in performing the service and for his ini-
tial investment in a downpayment on the tractor utilized.
Here, Respondent operates with a daily dispatch of
thousands of drivers to serve thousands of customers and
it does not allow the daily accomplishments of its oper-
ations to be left to chance or to the uncontrolled person-
al whims of individual drivers. Respondent does not limit
its control of the operation to the ultimate result of its
service—the delivery of the customer's freight. In actual-
ity, Respondent has carefully and thoroughly structure
its organization to allow the exercise of control over its
total business endeavor, including the manner in which
its drivers perform their , services.
In this connection the record shows that Respondent's
counselors act as the driver's supervisors. Also, both
counselors and dispatchers regularly manipulate the dis-
patch and work assignment process and exercise control
over any driver to attempt to operate in an independent
manner.
A review of Respondent's transfer, recruiting, training,
financing, licensing, and termination procedures and
practices shows a clear attempt by Respondent to give
the impression that drivers obtain an independent status;
however, the substance of the relationship does not per-
suasively indicate an independent contractor relationship
between the Compnay and its drivers. The actualities of
its practices show that drivers are selected and treated in
a manner that is not inconsistent with status as an em-
ployee. This is especially true in that drivers are effec-
tively prohibited from trip leasing or other independent
use of their tractors and are otherwise made solely de-
pendent on Respondent for any profit opportunities
Moreover, drivers are presented with advancement possi-
bilities that are coupled with evaluation of the manner
and means by which they perform their daily task, fac-
tors that tend to be indicative of a permanent relation-
ship and employee status.
Respondent places special reliance on the drivers pro-
prietary interest or investment in the business; however,
it is recognized that it is not uncommon for employees in
various trades and occupations to provide their own
basic education and training, to provide their own tools,
equipment, or special clothing, or to make monetary in-
vestments through stock purchase programs. Thus, even
if the owner-operator is considered to contribute his own
tractor, free of domination or influence by Respondent,
the mere contribution of a worker's capital investment
alone is not inconsistent with status as an employee.
Here, Respondent supplies the total investment in the
trailer portion of the tractor-trailer unit, and its colors
and logo give a dominant impression that it is Respond-
ent's vehicle. Significantly, it or its affiliate holds title to,
sells, fmances, and otherwise dominates control of the
vast majority of the driver's tractors. Respondent also
supplies necessary paperwork and other material and
provides drivers with the numerous accessorial services
discussed above. As noted, Respondent effectively pre-
vents drivers from trip leasing or making any independ-
ent use of the vehicles. Although a driver may ultimately
secure full title and ownership in his tractor (or receive
some reimbursement for their payments when a vehicle
is turned in), Respondent's records show that only 100 of
the current drivers have obtained this proprietary inter-
est in company-financed tractors, while only 100 others
independently held or received vehicle ownership. Thus,
the vast majority of the tractors used are held by the
Company with the driver being in a position substantially
equivalent to that of a leasee. As noted, the trailer por-
tion of the unit is unequivocally owned by the Company,
and drivers are not allowed the option of owning a com-
plete unit. Under these circumstances, I find that the pro-
prietary interest of the predominant number of drivers is
so qualified as to be more indicative of employee status
than of status as an independent contractor, see H & H
Pretzel Co., 277 NLRB 1327 (1985).
Significantly, mileage rates and other terms of the
driver-management contract are not negotiated with indi-
vidual owner-operators or representatives, but are unilat-
erally dictated by Respondent. Driver dissatisfaction in
the terms are not resolved by the process of independent
business negotiation, but become reflected in the obvi-
ously high driver turnover rate.
In 1984, this turnover rate approached 50 percent and
I find it to be indicative of Respondent's position of uni-
lateral control and the nonnegotiability of the purported
independent relationship between the drivers and Re-
spondent. While some efforts may be made by Respond-
ent's counselors to retain drivers by including them to
run more miles and thereby satisfying their equipment
obligations, drivers must relinquish their independence
and accede to effective acceptance of Respondent's dis-
patching control in order to succeed.
The conclusion reached is supported by Respondent's
records of turnover reasons, despite its claim that 95 per-
cent of the drivers leave on their own initiative. Some of
these drivers obviously fall into a category in which
their financial situation, lack of sufficient income, and
equipment indebtedness, coupled with their lack of suc-
cess under Respondent's controlled dispatch procedures,
dictate their departure. Other drivers admittedly are ter-
minated at the Respondent's initiative and here again it
appears that the root cause of such terminations often is
based on their failure to cooperate with Respondent's ex-
ercise of control over their operations.
NORTH AMERICAN VAN LINES 49
Respondent, citing Don Bass, supra, urges that control
aspects of the relationship relative to compliance with
the regulation of other governmental agencies cannot be
considered applicable. As found above, however, Re-
spondent's management of its drivers' activities goes
beyond those required by other regulations.
The Board's most recent evaluation of owner-operator
employee status occurred in Precision Bulk Transport, 279
NLRB 437 (1986), citing Don Bass supra, in which a
number of factors similar to some of those involved were
considered, including restrictions on independent "trip
leasing." In Precision the Board found that such restric-
tions gave the Company control beyond that imposed by
other Federal regulations and limited the drivers' enter-
preneurial freedom. Because this factor essentially stood
alone, the Board found it insufficient to support a finding
of statutory employee status in light of other factors. The
other facts in the instant case, however, differ significant-
ly from those discussed in Precision. For example, in
direct contrast to the instant case, the Precision drivers
received no instructions about the type of vehicle to buy,
and the Company did not finance or maintain other con-
trols over the vehicle. Here, Respondent not only has fi-
nancial and other controls over most of the drivers' trac-
tors, including retention of title and direction over repair
work, but it also owns the trailer portion of the tractor-
trailer unit necessary to perform the service involved.
Other factors that differ from the Precision case in-
clude the fact that Respondent's drivers are shown to be
subject to adverse personal actions such as being placed
out of service, receiving refusal notations on their
records, being threatened with termination, and being
denied recommendations for promotion or transfer when
they refuse or attempt to refuse loads. Here, Respondent
retains specific approval rights over the hiring of addi-
tional or replacement drivers and it has provided major
assistance in obtaining licenses, insurance, tires, fuel, and
other accessorial aids. Respondent does not allow drivers
to furnish their own trailers and it effectively disallows
drivers the opportunity to arrange an independent back
haul.
Here, the record shows that drivers who are not ter-
minated gain a permanent working arrangement with Re-
spondent and can transfer between divisions. They do
business in Respondent's name and with its assistance and
guidance, they operate under an agreement that is not
negotiated but is promulgated and changed unilaterally
by Respondent, and they use the skills expected of ordi-
nary truckdrivers, all factors consistent with employee
status. See Standard Oil, supra.
Here, despite the fact that some 200 drivers have inde-
pendent ownership of their tractors and others are multi-
unit operators (who, along with a few other experienced
operators, tend to be allowed to exercise a quarter
degree of independence), such exceptions are not repre-
sentative of the vast majority of the 2800 drivers in Re-
spondent's commercial transport division. Thus, an over-
view of the entire record leads to the ultimate conclusion
that a majority of Respondent's drivers are part of a
highly controlled relationship in which the Respondent
effectively manipulates and controls the daily manner
and means of its drivers' operations in a fashion that is
not typical of the traditional independent contractor.
Accordingly, I conclude that the Respondent has not
met its burden of showing that its owner-operators are
independent contractors in the traditional sense. I other-
wise find that the predominance of evidence shows that
the drivers of Respondent's commercial transport divi-
sion, as a class, are statutory employees within the mean-
ing of Section 2(3) of the Act and are not independent
contractors within the meaning of the statutory exclu-
sion.
VIII. DRIVERS' ADVISORY COUNCIL
The idea for a drivers' council was originated by an
executive vice president for the commercial transport di-
vision and implemented with the concurrence of Re-
spondent's general counsel following exploratory meet-
ings between other management personnel and some
drivers, and was designed to provide Respondent with a
means and forum for feedback and communications of
ideas and policies. As noted above, a total of 6, 2-day
meetings were held in 1983 and 1984, each attended by
12 driver members of the council, as well as Respond-
ent's director of contractor relations, Kevin Lewis, sev-
eral other management personnel, and a secretary, who
took minutes at all the meetings. And after each meeting
Lewis sent a letter to all fleet drivers setting forth high-
lights of what occurred at the meeting.
Respondent initially received requests to be on the
council from 90 to 100 drivers. Its dispatch manager then
made out a file card with information about each driver's
weekly mileage and "cash home" records as well as his
addresses, starting date, and fleet designation. Some com-
ments about the driver's suitability for the council were
also noted. The final selection of members was made by
management and was arrived at by attempting to select a
cross-section of the fleet, taking into account the statis-
tics on the cards and information about the candidates.
Respondent attempted to select drivers it thought were
"good businessmen" and some drivers selected were
"Vanguard" award-winning drivers, specifically known
to management. A manager also testified that there were
a couple of individuals they positively knew they did not
want. One of these individuals was Boswell, who they
felt would not provide an acceptable dialogue that
would facilitate communication between management
and drivers. After the initial formation of the council,
Respondent selected replacement members when an
original member left. Vice President Bruce testified that
he suggested Moats, a driver he had known from a pre-
vious Vanguard trip and who had visited him in his
office. After a conversation either he or the Respond-
ent's director of operations decided to select Moats. Fur-
ther examination by the General Counsel, however, dis-
closed that Moats also was known to management be-
cause he had been a witness who testified on behalf of
Respondent in the investigation proceeding before the
ICC. When a Council member objected to Respondent's
unilateral action in selecting Moats, the director agreed
that the selection method had to have "credibility" and
thereafter a system was devised that required Lewis to
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
develop a list of drivers and candidate profiles. Members
of the director's staff prepared the profiles. This proce-
dure was followed when the council next selected re-
placements; however, Lewis also informed the council
that "if management agreed with their selection" or the
alternate, Lewis would then contact them.
On a day-to-day basis, the council was actively man-
aged by Lewis, who opened and responded to all corre-
spondence it received. As noted, he also prepared the
summary of meetings sent to all drivers. On his own ini-
tiative, Lewis also prepared "Rules of Order," which he
said were designed not only to provide a productive at-
mosphere, but also to limit any discussion of compensa-
tion or grievance issues, to limit members to one crack at
a topic, and to require the presentation of a unified front
by the council once a decision was reached.
The meetings of the council were generally conducted
at a local Fort Wayne hotel or motel. Respondent paid
the bills for the lodging and meals of the council mem-
bers and the meeting rooms and it otherwise provided
complete fmancial support for the council's functioning.
Although the driver-council members were not paid
while at meetings, this factor is not significant as the
drivers were not salaried, but rather were compensated
on a mileage basis. Here, the driver-council members
were assigned specific loads to bring them to the Fort
Wayne area or were paid loaded miles, regardless of
whether they hauled any freight, and they were prefer-
entially dispatcheed with return loads at the end of the 2-
day meeting. Respondent further added to its financial
support and oversight involvement by preparing and dis-
tributing to all drivers a summary of what it considered
to be the main discussions of the meeting. Although
some council members had an opportunity to review the
distribution, there is no indication that they could or did
make any in the material prepared by management.
The record shows that Respondent's council had no
charter, no regular offices (the position of chairman ro-
tated for various meetings), and no provisions for fund-
ing. It also is shown that the meeting schedules were set
and coordinated by Respondent. Although members pur-
portedly suggest topics for the next agenda, the meetings
were dominated by presentations by management, with
only a minor amount of the time set aside for drivers to
meet without officials. Otherwise, it appears that Lewis
and the stenographer were always present.
Respondent attempts to minimize the fact that the
council has suggested changes in company operations,
but it does acknowledge that this did occur and that
some suggestions were favorably acted on by manage-
ment, including such things as reimbursement for ex-
penses in washing Respondent's trailer equipment and ex-
panding the availability of tire sale services. Respondent
also acknowledges that it publicly attributed several
other policy changes to the council, including restoration
of a 30-day notice in its contract termination clause, but
states that these were changes it had already decided on
and that they were not actual accomplishments of the
council and thus did not tend to demonstrate that the
council existed for the purpose of dealing with the Com-
pany concerning working conditions.
Here, I find that the council was created to be a vehi-
cle for use by management in the dissemination of infor-
mation and also for the exchange of information between
driver and management concerning operations and,
almost implicitly, working conditions. Once the council
was created, it was then carefully and knowingly manip-
ulated by Respondent in a transparent attempt to avoid
any obvious display of dominance.
Although the Respondent denies that its Drivers Advi-
sory Council is a labor organization, the record, especial-
ly minutes of the several council meetings, unquestion-
ably show that the council engaged in discussions and
sought resolutions of matters dealing with working con-
ditions, grievances, and compensation. Section 2(5) of the
Act defines a labor organization as
any organization of any kind, or any agency or em-
ployee representation committee or plan, in which
employees participate and which exist for the pur-
pose, in whole or in part, of dealing with employers
concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of
work.
Here, the record shows that Respondent's driver-em-
ployees participated in the meeting, but that some of the
drivers' ideas and recommendations were adopted by
management and some complaints were favorably acted
on. Accordingly, I conclude that the Drivers' Advisory
Council clearly falls within the statutory definition of a
labor organization. See Clappers Mfg., 186 NLRB 324
334 (1970), and Texas Bus Lines, 277 NLRB 626 (1985).
Section 8(a)(2) of the Act provides:
It shall be an unfair labor practice for an employ-
er . . . (2) to dominate or interfere with the forma-
tion or administration of any labor organization or
contribute financial or other support to it. . . .
The critical factors for evaluation of illegal company as-
sistance and domination of a labor organization are dis-
cussed in Homemaker Shops, 261 NLRB 441 (1982), revd.
in part at 724 F.2d 535 (1984). These include consider-
ation of the organizational bylaws and governing rules;
whether there are regular officers and provisions for
dues; who had authority to schedule meetings, election
procedures, and grievance handling; and whether the
Company pays wages and other cost.
Respondent, while admitting that it originated the con-
cept of the council, suggests that it did not unilaterally
implement the concept but acted only after getting "en-
thusiastic" endorsement of the idea and requests by 90 to
100 volunteers to serve. It suggested that there is no evi-
dence of driver opposition to the council concept; how-
ever, it does not address the fact that the drivers were
never presented with any opportunity to vote for or
against the concept. It also failed to recognize the nega-
tive corollary that can be implied by the fact that of
some 2500 drivers in the commercial transport division,
2400 failed to volunteer their endorsement of the council.
On brief, the Respondent also suggested that no infer-
ence should be drawn that the selection of replacement
NORTH AMERICAN VAN LINES 51
council member Moats was based on its knowledge that
he had testified on Respondent's behalf in the ICC pro-
ceeding. My review of the record, however, indicates
that Vice President Bruce was a reluctant witness who
attempted to minimize his knowledge of events, and I be-
lieve that both his testimony and that of then Director of
Operations Phillabaum are sufficiently ambiguous to
allow room for a valid inference that Moats was selected
to be on the council because he was a driver whose fa-
vorable and cooperative attitude toward Respondent was
known to management.
As noted, Respondent selected the original members of
the council, it played a substantial role in determining re-
placements, and it appears that it also reserved to itself
the power to veto the council's selection of replacement
members. Also, when a body of rules governing the op-
eration of meetings was created, it was proposed by
management. These rules, in addition to providing a pro-
cedural framework for the conduct of meetings, also
made an attempt to control discussions dealing directly
with issues of compensation or grievances, two specific
factors that would clearly tend to indicate that the coun-
cil functioned as a labor organization. Here, I find that
Respondent's action in establishing these restrictive rules
also is indicative of Respondent's exercise of coercion,
and restraint of the council in order to prevent it from
effectively representing the interest of employees. This
factor in particular distinguishes the instant case from the
situation discussed by the court in the Homemaker case,
supra, relied on by Respondent.
In connection with the issue of funding, it is clear that
the council existed solely at Respondent's sufferance.
Motel accommodations as well as meals and meeting fa-
cilities for driver members and attending management
personnel were completely paid for by Respondent and
clearly go beyond the minimal compensation discounted
by the court in Homemaker, supra at 547.
Under the circumstances, I find that the reality of the
Company's involvement in the initial formation of the
council, in June 1983, in the early operation of the coun-
cil, and through the period of subsequent modification in
1984 requires a conclusion that Respondent has dominat-
ed and interfered with both the formation and adminis-
tration of a labor organization.
Respondent, however, urges that its creation of the
council and its most active involvement in council affairs
occurred in 1983, a time outside the 10(b) limitation
period. A review of the record of council meetings
during portions of 1984, a timeframe that unquestionably
falls within the 10(b) period, shows the following:
During the Council meeting on 4 April 1984, Director
of Contractor Relations Lewis served as chairman,
rather than any employee member. The discussion cov-
ered numerous questions and complaints on operational
conditions, including a complaint that phone clerks were
too arbitrary in dealing with drivers. Respondent replied
with an assurance that rules would be loosened. Also, a
company representative gave a presentation of "things
that were changed as a result of the last meeting" and,
among other things, listed the following:
Tractor purchase/Saturdays
Wash bay quality/quantity
Fort Wayne off site work schedule
Credit cards and personnel checks accepted
Los Angeles off site
Modified weekend purchase orders
Vehicle service adding two more phones
Expanding vehicle service inbound Watts lines
from 5 to 7
Mastercharge-Visa benefits April 23, 1984 in Fort
Wayne
Expand third shift at tractor shop
Tractor shop will have Watts line April 16, 1984
At that same meeting council also replaced the hus-
band-wife team members and another member of the
council, and selected an alternate. Lewis' notes for that
meeting stated:
I told council I would contact Mr. and Mrs.
Bingham if management mutually agreed. [and] will
get management approval for new members (or al-
ternate) contact new members to see if they are in-
terested, then ask them to be members.
During the meetings on 10 and 11 July 1984, Charging
Party Boswell attempted to attend but was asked to
leave. He left after further being asked if he wanted them
to call the police. The council then replaced a member
after receiving candidate profiles prepared by manage-
ment. It also brought up and discussed expansion of
group insurance participation and vehicle insurance cost.
"Call back" problems with dispatchers were raised and
management replied that improvement would be attempt-
ed. A member questioned whether drivers had a choice
where to have tractors repaired and an example was
given in which driver was not given a choice. Manage-
ment promised to see what could be done.
During the meetings of 30 and 31 October 1984, the
council discussed the renovation of Respondent's facility
in Los Angeles with phones and laundry equipment, and
management gave assurance of improvements. Other
problems, including a specific discussion of dispatchers
placing drivers out of service to force them to take
loads, were discussed and a statement was made that the
council did not want the benevolent association at coun-
cil meetings.
This brief summary of events at council meetings
during the 10(b) period shows that the council discussed
conditions of employment that were acted on by the
Company, and that the Company exercised domination
over the council through such activities as chairing a
meeting and controlling selection of replacement council
members. Also, direct expenditures by Respondent of
several thousand dollars occurred for these meetings and,
accordingly, I conclude that Section 10(b) is not a bar to
this proceeding.
Moreover, these latter factors do not stand alone but
exist together with Respondent's original actions in orga-
nizing, assisting, and dominating the council prior to the
10(b) period, and it is shown that the 1984 actions of the
council otherwise were a continuation of Respondent's
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD -
original improper activities. Compare Al Bryant, Inc., 260
NLRB 128, 135 (1982).
Under these circumstances, I conclude that the Gener-
al Counsel has shown by a preponderance of the evi-
dence that Respondent has unlawfully formed, dominat-
ed, and rendered assistance to a labor organization in
violation of Section 8(a)(2) and (1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent North American Van Lines, Inc. is an
employer within the meaing of Section 2(2) of the Act
and has engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The owner-operators who perform transportation
services for and under contract with Respondent's Com-
mercial Transport Division are employees under Section
2(3) of the Act and collectively do not have status as in-
dependent contractors.
3. North American Van Lines Commerical Transport
Division Drivers Advisbry Council is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
4. By dominating, assisting, supporting, and interfering
with the formation and administration of the council, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(2) and (1) of
the Act.
THE REMEDY
Having found, as set forth above, that the Respondent
has engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action set forth below designed to ef-
fectuate the policies of the Act.
It having been found that the Respondent has dominat-
ed and interfered with the formation and administration
of the employees' advisory council, and has contributed
support thereto, it is recommended that the Respondent
cease and desist from such conduct and it is further rec-
ommended that it be ordered to completely disestablish
the council.
As part of the relief sought, the General Counsel also
seeks imposition of a so called visitatorial clause whereby
the Board would be authorized to engage in certain dis-
covery activities in order to monitor compliance. Al-
though the imposition of such a provision recently has
become a common practice, there is no showing that it is
of particular applicability or usefulness in dealing with
the type of unfair labor practices involved in this pro-
ceeding. Accordingly, the request is denied and no visita-
torial clause will be imposed as part of the Order.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, North American Van Lines, Inc.,
Fort Wayne, Indiana, officers, agents, successors, and
asssigns, shall, jointly and severally
1. Cease and desist from
(a) Dominating or interfering with the administration
of North American Van Lines Commercial Transport
Division Drivers Advisory Council, or with the forma-
tion or administration of any other labor organization of
its employees, and contributing support to North Ameri-
can Van Lines Commercial Transport Division Drivers
Advisory Council or to any other labor organization of
its employees.
(b) Recognizing, or on any manner dealing with,
North American Van Lines Commercial Transport Divi-
sion Drivers Advisory Council, or any reorganization or
successor thereof, as a representative of any of its em-
ployees for the purpose of dealing with the Respondent
concerning grievances, labor disputes, wages, rate of
pay, hours of employment, or other conditions of work.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Completely disestablish North American Van Lines
Commercial Transport Division Drivers Advisory Coun-
cil.
(b) Post at its Fort Wayne, Indiana facilities copies of
the attached notice marked "Appendix." 4 Copies of the
notice, on forms provided by the Regional Director for
Region 25, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."