Pony Trucking, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1972

198 N.L.R.B. 686 (N.L.R.B. 1972)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pony Trucking, Inc. and General Teamsters , Chauf-
feurs, Warehousemen and Helpers , Local 428,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 8-CA-6896
August 3, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on March 8, 1972, by General
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 428, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union, and duly
served on Pony Trucking, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 8, issued a complaint on March 23, 1972,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies
of the charge, complaint, and notice of hearing
before a Trial Examiner were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 28,
1972, following a Board election in Case 8-RC-8391
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about March 3, 1972, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On April 4, 1972, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On April 20, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 1, 1972, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent failed to file a response to
I Official notice is taken of the record in the representation proceeding,
Case 8-RC-8391, as the term "record" is defined in Secs 102.68 and
102 69(f) of the Board's Rules and Regulations , Serves 8, as amended See
LTV Electrosystents, Inc, 166 NLRB 938, enfd. 388 F 2d 683 (C A 4, 1968),
Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269
Notice To Show Cause and the Union filed a Motion
for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, the Respondent
contends that the Acting Regional Director arbitrari-
ly and capriciously determined, in Case 8-RC-8391,
that the owner-drivers and nonowner-drivers, includ-
ed in the unit found to be appropriate by him, are
employees of the Respondent within the meaning of
the Act rather than independent contractors and that
therefore their designation, selection, and certifica-
tion of the Union as exclusive bargaining representa-
tive is invalid. We find no merit in this contention.
The record in Case 8-RC-8391 reflects that, after a
hearing in which the Respondent participated, the
Acting Regional Director issued on December 7,
1971, his Decision and Direction of Election in which
he found, contrary to the Respondent, that the
owner-drivers and the nonowner-drivers employed
by the Respondent are employees of the Respondent
within the meaning of the Act and not independent
contractors or employees of independent contractors.
Accordingly, he found that they constituted an
appropriate bargaining unit . On December 20, 1971,
the Respondent filed with the Board a request for
review in which it argued again that the owner-
drivers and the nonowner-drivers are independent
contractors and that the Acting Regional Director's
determination that they are employees is capacious
and clearly erroneous. By telegram dated January 13,
1972, the Board denied the request on the grounds
that it raised no substantial issues warranting review.
In its answer to the complaint, the Respondent again
raises these issues.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
F Supp 573 (D C Va , 1967), Follett Corp, 164 NLRB 378, enfd . 397 F 2d
91 (C A 7, 1968); Sec 9(d) of the NLRA
2 See Pittsburgh Plate Glass Co v. N LR.B, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Secs 102.67(f) and 102 69(c)
198 NLRB No. 59
PONY TRUCKING, INC.
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
As found by the Acting Regional Director, the
record shows that the Respondent , a West Virginia
corporation, is a contract carrier , licensed under the
Interstate Commerce Commission , which hauls steel
products to Pennsylvania , Ohio , and New York. A
total of 23 drivers operate trucks for the Respondent.
Fifteen drivers operate the equipment they lease to
the Respondent , and eight drivers operate equipment
leased to the Respondent by the owners of more than
one tractor . Fleet owners lease equipment to the
Respondent and furnish drivers , but do not drive
such leased equipment . The Respondent leases all
tractors and trailers and owns no equipment.
Owner-drivers who lease both a tractor and trailer
to the Respondent receive 77 percent of the gross
revenue charged by the Respondent for hauling the
customer 's product . Those owner-drivers who lease
only tractors to the Respondent receive 67 percent of
the gross revenue charged . Owner-drivers who do not
own a trailer may lease one from the Respondent or
other source . The Respondent leases trailers from
other companies and leases them in turn to owner-
drivers and charges them at a rate of 8 to 15 percent.
Adjustment is also provided for in the percentages
paid owner-drivers depending upon whether they
pr6vide their own tarpaulins and chains to protect
and, secure their loads.
Alt equipment owners execute individual but
identical leases with the Respondent . Each lease
provides that the vehicles are for the Respondent's
"exclusive possession, control, use and responsibili-
ty;" the owner is to furnish competent and physically
fit drivers and helpers to operate equipment; the
drivers shall cooperate with the Respondent by filing
log sheets , physical examination certificates, and
accident and other required reports ; either party may
terminate the lease at any time after 30 days from its
effective date ; "any failure to furnish equipment or
any use of equipment by" the owner or by any
person other than the Respondent prior to written
termination of the lease is a breach of the lease; and
the owner warrants that the equipment is in good
and safe operating condition and agrees "to submit
said equipment for carrier 's inspection at the time
carrier takes possession and periodically thereafter as
required by carrier."
The lease further provides that the owner must pay
for all repairs , maintenance costs , fuels , wages of
drivers and helpers , and public liability and property
687
damage insurance coverage for periods the vehicle is
not being operated in the service of the Respondent,
although the Respondent pays for the cost of all
public liability, property damage , and cargo insur-
ance on the equipment while the same is operated in
the service of the Respondent ; the owner must make
payments for injury to drivers or helpers and
damages to equipment whether the same occur while
equipment is being operated in the service of the
Respondent or not ; the owner must pay for the cost
of insurance coverage for collision , fire , or other
catastrophe ; the owner must pay workmen's com-
pensation , unemployment insurance , social security
or other similar taxes , and insurance or benefits on
the drivers and helpers ; and the owner must make all
payroll tax or other deductions required by law. The
Respondent pays the axle mile tax where required by
state law.
Finally, the lease provides that the Respondent
may sublease the equipment and is considered the
owner during such subleasing . However, the owners
are permitted to sublease their equipment only with
the Respondent 's knowledge and consent and any
such unauthorized sublease releases the Respondent
from any claims during the period of such unauthor-
ized sublease.
Pursuant to Department of Transportation and
Interstate Commerce Commission regulations, the
Respondent requires all drivers to undergo a physical
examination if they do not have a currently valid
medical certificate . Copies of the drivers ' medical
certificates and leases are filed in the Respondent's
office. The Respondent will not permit a driver to
operate a vehicle if he cannot pass a physical
examination.
The record shows that the Respondent maintains a
list of the tractors and trailers and the available
drivers on a rotation board and that the dispatcher
calls the driver at the top of the list to make an
assignment . The drivers pick up and deliver the
goods at the designated times . After completing a
delivery, an owner-driver who has secured previous
authorization from the Respondent may attempt to
secure a trip lease for the return trip . A driver's name
is again placed on the rotation board as soon as he
notifies the Respondent that he has completed his
delivery and that he is again available.
Some accommodation is allowed those owner-
drivers who do not wish to make trips to certain
areas. Although drivers may reject a load , there is no
evidence that successive rejections are permitted. All
drivers are free to choose the route they wish to
travel provided they meet pickup and delivery times
established by the customer . There is evidence in the
record that the Respondent terminated the lease of
one owner-driver who violated a state law by driving
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an excessively heavy load across a bridge and also
violated D.O.T. regulations by drinking beer within
the 4-hour period prior to going on duty.
Although D.O.T. regulations require only that the
vehicles be periodically inspected, and the lease
provides for such inspection, the Respondent at-
tempts to inspect each vehicle every 90 days. When
defects are discovered, the Respondent instructs the
owner to correct such defects. Leases are terminated
by the Respondent whenever the owner-drivers fail
to correct their personal physical defects or defects in
their equipment.
Only the Respondent's name, address, and ICC
permit appear on the vehicles. The Respondent's rate
charges are based on a rate schedule prepared by the
ICC and interpretations of that rate schedule by the
Respondent's rate clerk. Neither the owner-drivers
nor the nonowner-drivers participate in establishing
such rates.
The Board, in making determinations as to whether
an individual is an employee or an independent
contractor, has often stated that it will apply the
common law right-of-control test. Under this test, an
employer-employee relationship exists when the
employer reserves the right to control not only the
ends to be achieved, but also the means to be used in
achieving such ends. However, where control is
reserved only as to the result sought, an independent
contractor relationship exists.
Applying this test to all the evidence relevant to the
relationship in this case, we find, unlike our dissent-
ing colleague, that the owner-drivers and the non-
owner-drivers are employees of the Respondent and
not independent contractors. In making such finding,
we make particular reference to two cases involving
similar facts and issues in which the Board found
that owner-drivers and nonowner-drivers were not
independent contractors, but were employees.3
We find here, as we did in the Deaton cases, that
the Respondent controls the manner and means by
which the owner-drivers and nonowner-drivers per-
form work for the Respondent by determining the
qualifications of drivers, by disqualifying those who
are not qualified or fail to pass the physical, by
terminating the employment of drivers who violate
state laws and D.O.T. safety regulations, by requiring
leased equipment to be inspected every 90 days, by
its "exclusive possession, control, use and responsi-
bility" for all leased equipment for the term of the
lease , by reserving the right to sublease such
equipment, and by requiring the owner-drivers to
request permission from the Respondent before they
can sublease their own equipment. The Respondent
also requires all drivers to file logs, physical examina-
tion certificates, and other required reports; it
performs all dispatch services for the drivers; it
requires all leased equipment to exhibit the Respon-
dent's name and identification number; and it
controls the duration of the relationship since the
Respondent may terminate the lease 30 days after
the commencement thereof.
The record contains further evidence of the
Respondent's control of the means by which the
owner-drivers and nonowner-drivers perform their
daily work tasks. The Respondent may terminate
those drivers and owners who fail to correct defects
in their equipment or have failed to correct personal
physical defects. Also, drivers who fail to abide by
state and Federal regulations pertaining to both
equipment and the driver's personal conduct, may be
terminated by the Respondent. The record also
shows that the Respondent unilaterally determines
the applicable percentages of the Respondent's gross
revenue the owner-drivers are to be paid for their
trips.
We also find here, as we did in Deaton, Inc.,4 that
the Respondent, pursuant to its obligation to comply
with all ICC and D.O.T. regulations which are
applicable in view of its carrier status, must, of
necessity, exercise control over the leased equipment,
as well as the drivers of such equipment, to a degree
sufficient to assure compliance with such regulations.
In order to insure such compliance, the Respondent
specifically provides for pertinent language in its
lease. -
We are also aware that in this case there are factors
which indicate that the owner-drivers exercise some
control in their day-to-day relationship with the
Respondent. Such factors include: the owner-drivers
make payment for all costs operation, maintenance,
repairs, and fuel; the Respondent makes no deduc-
tions for social security or Federal or state income
taxes; the drivers are paid on a "per trip basis" and
are free to choose their own working hours and to
hire and pay helpers and drivers; drivers may select
their own routes; they may reject a given load; and
the Respondent makes payments only to owners of
the vehicles and not to the nonowner-drivers. '
Although we have evaluated these factors, we find
unlike our dissenting colleague, that they are not
controlling. Moreover, we find that the presence of
such factors is not inconsistent with our finding that
the owner-drivers and nonowner-drivers are employ-
ees in view of the Respondent's considerable control
over the manner in which and the means by which
the drivers are required to perform their work
functions. We note, also, that these same factors
which our dissenting colleague finds constitute
3 Deacon Truck Lines, Inc., 143 NLRB 1372, denied petition to review
337 F.2d 697 (C.A. 5); and Deaton, Inc., 187 NLRB No. 102.
4 187 NLRB No. 102.
PONY TRUCKING, INC.
evidence of independent contractor relationship have
been raised in prior Board proceedings and found
not to be controlling.5 Moreover, we note that the
Board has already determined herein that such
factors are not determinative of independent con-
tractor status since, for the most part, the issues
raised by our dissenting colleague in support of a
finding of independent contractor relationship have
already been raised by the Respondent in its Request
for Review of the Acting Regional Director's
Decision, and the Board denied that Request for
Review.
Although our dissenting colleague would rely on
Fleet Transport , Company, , Inc., 6 to support his
finding that the owner-drivers and nonowner-drivers
herein are independent contractors, we find that such
reliance is misplaced and that Fleet is clearly distin-
guishable. In Fleet, the Regional Director had found
in an earlier proceeding that the lease agreement
established that the owner-operators and nonowner-
drivers were employees and not independent con-
tractors. The lease had contained many of the
provisions found in the lease in this proceeding; e.g.,
the employer had exclusive use of the equipment, it
required compliance with ICC regulations, the
employer unilaterally established commissions paid
to drivers, and the employer had the right to
terminate drivers who did not comply with the
employer's rules.
The Board, while finding that the owner-operators
were independent contractors, based its finding on
the fact that the employer had made significant
changes in the lease agreement subsequent to the
Regional Director's finding that the owner-operators
were employees. Such changes included deletions
from the lease of a clause which provided that, when
not in use for the employer, the tractor could be
operated only for the purpose of effecting repairs or
parking or storing; a provision allowing the employer
to make all decisions as to consignors, consignees,
and customer relations and to designate which trailer
would be used by a driver; a provision stating that
the tractor was under the direct control of the
employer when pulling the employer's trailer; and a
clause requiring that the tractor must be lettered and
painted as prescribed by the employer.
Clearly, neither the Respondent nor our dissenting
colleague contends that similar provisions were
deleted from the lease agreements in issue herein or
that the record contains evidence of changed
circumstances following the Acting Regional Direc-
tor's decision.
Finally, we respectfully disagree with the finding of
our dissenting colleague that the factors herein are
5 Chemical Leaman Tank Lines, Inc., 146 NLRB 148, and Western
Nebraska Transport Service Division, 144 NLRB 301.
689
indicative of an entrepreneur relationship between
the Respondent and the lessors. We note that, by
'definition, an entrepreneur is one who manages and
assumes the risks of a business . Here, though the
lessors assume many of the risks in the relationship,
the Respondent controls most of the meaningful
management prerogatives; i.e., exclusive control over
the leased equipment; the dispatching of drivers;
unilateral determination of the percentages of its
gross revenue it will pay the lessors for hauling
products; the right to determine which drivers are
qualified and whether their equipment is operable;
the right to terminate drivers who fail to comply with
state and Federal regulations; and the right to
terminate the lease if the owner-driver fails to
remedy a personal physical defect or a mechanical
defect in his equipment.
In view of the foregoing, and on the basis of the
entire record, we find that the owner-drivers and the
nonowner-drivers are employees of the Respondent.
We shall, accordingly, grant the General Counsel's
and the Union's Motions for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a West Virginia corporation, has its
headquarters, principal office, and place of business
in Steubenville, Ohio, where it is engaged in the
intrastate and interstate transportation by trucks of
goods, including, but not limited to, steel products.
Annually, in the course and conduct of its trucking
operations, Respondent derives gross revenues in
excess of $250,000 of which more than $50,000 is
derived from the interstate transportation of goods
by truck.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters, Chauffeurs, Warehousemen
and Helpers, Local 428, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
6 196 NLRB No. 61.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All owner-drivers and nonowner-drivers operat-
ing leased equipment out of the Respondent's
Steubenville, Ohio, facility, excluding office cleri-
cal employees, multiple equipment owners, and
all professional employees, guards, and supervi-
sors as defined in the Act.
2. The certification
On January 21, 1972, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 8, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on January 28, 1972, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about February 3, February 23,
and March 3, 1972, and at all times thereafter, the
Union has requested the Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about
March 3, 1972, and continuing at all times thereafter
to date, the Respondent has refused, and continues
to refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargaining
of all employees in said unit.
Accordingly, we find that the Respondent has,
since March 3, 1972, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Pony Trucking, Inc., is an employer engaged-in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. General Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local 428, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All owner-drivers and nonowner-drivers oper-
ating leased equipment out of the Respondent's
Steubenville, Ohio, facility, excluding office clerical
employees, multiple equipment owners, and all
professional employees, guards and supervisors as
defined in the Act constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since January 28, 1972, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
PONY TRUCKING, INC.
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about March 3, 1972, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Pony Trucking, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment, with General Teamsters,
Chauffeurs, Warehousemen and Helpers, Local 428,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All owner-drivers and nonowner-dnvers operat-
ing leased equipment out of the Respondent's
Steubenville, Ohio, facility, excluding office cleri-
cal employees, multiple equipment owners, and
all professional employees, guards and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
7 In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
691
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Steubenville, Ohio, facility copies of
the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional
Director for Region 8, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER KENNEDY, dissenting:
Because I believe that the owner-drivers and
nonowner-drivers involved in this proceeding are not
employees of Respondent, I dissent from the majori-
ty's finding that by refusing to bargain with the
Union for such individuals Respondent violated
Section 8(a)(5) and (1) of the Act.
Respondent operates under license from the
Interstate Commerce Commission as a contract
carrier of iron and steel products for three steel
producers in or near Weirton, West Virginia. It hauls
from the Weirton commercial zone to points
throughout Pennsylvania, Ohio, and New York. For
its haulage work it uses leased equipment. Fifteen of
the leased trucks are operated by the owners thereof;
they are known as owner-dnvers. Eight of the leased
trucks are operated by drivers supplied by the
equipment lessors; these drivers are known as
nonowner-drivers.
The Union petitioned for an election in a unit of
the owner- and nonowner-drivers. Respondent con-
tended that the owner-drivers were independent
contractors and the nonowner-drivers were employ-
ees of equipment lessors. It therefore urged that the
petition be dismissed. The Regional Director rejected
Respondent's contention, found that all the drivers
were employees of Respondent, and directed an
election which the Union won. Thereafter, Respon-
dent refused to bargain with the Union arguing, as
stated in its answer to the complaint, that the
Regional Director had erroneously decided that the
drivers involved were employees of Respondent.
Owner-drivers have absolute ownership of their
equipment. Respondent played no part in determin-
ing the make, weight, style, or financing of equip-
ment furnished by the owner-drivers or other lessors.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The owner-drivers pay for their license fees, gas and
oil, vehicle maintenance and repairs, and fire, theft,
collision, and other vehicle-related insurance, with-
out any restrictions on the part of Respondent.
Owner-drivers are paid on a "per trip" basis
according to varying percentages set out in the
different lease agreements without deduction for
Federal or state income taxes or social security.
Respondent maintains a board on which the names
of available drivers are placed in rotation and from
which the drivers are contacted in turn for assign-
ments. A driver is free to accept or reject an offered
load without penalty. He determines his own
working hours and may select his own route for
making deliveries, subject to the requirements that he
meet the pickup and delivery times established by the
customer and that he does not violate Federal or
state laws. Provided he receives permission from
Respondent, a driver may, handle other hauling
business on the return trip and receive the entire
income thereof.
There are, of course, elements of control exercised
by Respondent over the drivers. But, for the most
part, these are requirements imposed by governmen-
tal regulatory agencies primarily in the interest of
safety. In this category are written driver examina-
tions, driving tests, certifications of physical fitness,
vehicle inspections, and maintenance of logbooks by
drivers. Governmental regulations also require that
trucks leased by Respondent be identified with a
decal naming Respondent as operator and that the
lease give the lessee "exclusive possession, control,
use and responsibility" of the equipment, the phrase
used in the Respondent' s lease agreements.
There is no single factor which is determinative of
whether an employer-employee relationship, rather
than an independent contractor relationship, exists
between two persons. All the incidents of the
relationship must be examined and weighed to
decide this question. If one party has the right to
control only the end result of the other's labors, the
relationship is that of independent contractor; if he
has the right to control the means as well as the end,
the relationship is that of employer-employee.8 The
rule is easier stated than applied.
In my opinion, the Regional Director erred in
concluding that the owner-drivers and nonowner-
drivers are employees of Respondent. The owner-
drivers have invested considerable sums in the
equipment which they bring to Respondent's service.
They pay all the expenses in connection with the
operation of this equipment in behalf of Respondent.
They determine the hours they will work, decided
whether to haul or not to haul a given load, and
select the route they will follow in making deliveries.
They are free to select substitute drivers and to hire
as many helpers as they may desire. In the case of
lessors who do not drive their own vehicles, the
lessors hire their own drivers and fix their salaries.
Respondent makes payments only to owners of the
vehicles and not to nonowner-drivers. The above
factors indicate that Respondent is not concerned
with the means by which the owner-drivers and
nonowner-drivers carry out the tasks assigned to
them. Whatever control is exercised by Respondent
over these two groups is in response to governmental
regulations which have been promulgated in the
public interest rather than in the specific interest of
Respondent and trucking companies similarly situat-
ed.
Other factors also indicate that the parties did not
understand their relationship to be that of employer-
employee. Thus, Respondent does not participate in
the determination of what wages are to be paid to
nonowner-drivers or to driver-helpers. It does not
deduct social security or other taxes from the sums
paid the lessors. The earnings of the latter are
determined by how well they are able to control
expenses which, as indicated above, may be consider-
able. All of the above are indicative of an entrepre-
neur relationship between lessors and Respondent
rather than an employer-employee relationship. This
conclusion is not weakened by the fact that Respon-
dent unilaterally fixes the percentage of trip receipts
it will pay to the lessors. Respondent's ability to do
so indicates no more than that its economic power
exceeds that of the lessors. It is not uncommon in
business relationships for the stronger party unilater-
ally to decide the price to be paid for a particular
product or service. Steel companies for whom
Respondent does its hauling may well decide
unilaterlaly the tariffs they will pay for such haulage
work. Nor is the fact that either party may cancel the
lease agreement after 30 days inconsistent with an
independent contract relationship. A business rela-
tionship, as well as an employer-employee relation-
ship may be severable at will.
The facts in this case, it seems to me, are almost
identical with those in the recently decided case of
Fleet Transport Company, Inc., 196 NLRB No. 61,
where the Board concluded that owner-operators
who leased tractors to a trucking company were
independent contractors and that nonowner-drivers
hired by the lessors were employees of the independ-
ent contractors.9 Accordingly, contrary to the major-
ity, I would dismiss the complaint.
8 Fleet Transport Company, Inc, 196 NLRB No. 61
9 See also Reisch Trucking and Transportation Co, Inc, 143 NLRB 953
PONY TRUCKING , INC. 693
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay , wages, hours, and other
terms and conditions of employment with Gener-
al Teamsters , Chauffeurs , Warehousemen and
Helpers , Local 428, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, as the
exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive representa-
tive of all employees in the bargaining unit
described below , with respect to rates of pay,
wages , hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All owner-drivers and nonowner-drivers
operating leased equipment out of the
Respondent 's Steubenville, Ohio, facility,
excluding office clerical employees , multiple
equipment owners , and all professional
employees , guards and supervisors as de-
fined in the Act.
PONY TRUCKING, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-,
ance with its provisions may be directed to the
Board 's Office , 1695 Federal Office Building, 1240
East Ninth Street , Cleveland , Ohio 44199 , Telephone
513-684-3686.