Robbins Motor Transportation, Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1975

225 N.L.R.B. 761 (N.L.R.B. 1975)

ROBBINS MOTOR TRANSPORTATION 761
Robbins Motor Transportation , Incorporated ; S.R.T.
Motor Freight, Inc. and General Teamsters , Chauf-
feurs, Warehousemen and Helpers, Local 470, a/w
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Pe-
titioner. Case 4-RC-1 1670
July 28, 1975
DECISION ON REVIEW
BY MEMBERS FANNING, JENKINS, AND WALTHER
On October 29, 1975, the Acting Regional Director
for Region 4 issued a Decision and Direction of Elec-
tion in the above-entitled proceeding, in which he
excluded from the Petitioner's requested unit of
truckdrivers, as not employees of the alleged joint
employers named in the caption (herein called Rob-
bins and SRT), the owner-operators of leased equip-
ment whom he found to be independent contractors,
and the nonowner drivers of leased vehicles whom he
found to be employed by the independent contrac-
tors and not by the Employers; and he directed an
election in a unit of the remaining requested truck-
drivers, who are admittedly employees of SRT.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Petitioner filed a
timely request for review of the Acting Regional
Director's decision on the grounds that in reaching
the above determinations he made erroneous find-
ings of fact and departed from precedent. The Em-
ployers filed opposition thereto.
On December 23, 1975, by telegraphic order, the
request for review was granted and the election
stayed pending decision on review. Thereafter, the
Petitioner and the Employers filed briefs on review.'
The Employers also filed a motion to strike portions
of the Petitioner's brief on review, and the Petitioner
filed an answer thereto.
i The Petitioner also requested that Board Member Walther disqualify
himself from participation herein on the basis that NRM Trucking Compa-
ny, one of the companies named in the petition as an employer of truckdriv-
ers involved, was represented by the law firm of Morgan , Lewis and Bock-
ius, with which firm Member Walther was associated immediately prior to
his appointment as a Board Member , and that Stephen R Tranovich, the
agent for the Employers named in the caption , is also the agent for NRM
Trucking Company The Employers opposed the request, noting that NRM
Trucking Company was unrepresented by counsel during the first day of the
hearing and on the second day was removed , by stipulation , as a party to
the proceedings The request was referred to Member Walther He consid-
ered the request and decided not to disqualify himself inasmuch as the law
firm with which he was formerly associated does not represent any of the
parties to this proceeding and its earlier participation in the hearing was
limited to responding to a subpena for information concerning its client
NRM Trucking Company, prior to removal of its client, by stipulation, as a
party to the proceeding
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review, includ-
ing the briefs on review,' and makes the following
findings:
The Petitioner contends that the record does not
support the Acting Regional Director's finding that
the owner-operators of leased equipment here in-
volved are independent carriers and not employees
of the named Employers. We agree.
Robbins, whose headquarters are at Eddystone,
Pennsylvania, operates mainly in the Middle Atlantic
States area from a number of terminals under a cer-
tificate from the Interstate Commerce Commission
(ICC) as a common carrier for the interstate trans-
portation of iron and steel. SRT, owned by Stephen
R. Tranovich, his wife, and a daughter, has a termi-
nal at Morrisville, Pennsylvania, from which it oper-
ates under a certificate from the Pennsylvania Public
Utility Corporation (PUC) for the intrastate hauling
of iron and steel and certain other commodities. SRT
also acts as an agent for Robbins, principally with
regard to a common customer, U.S. Steel's Fairless
Works, from whose nearby plant intrastate and inter-
state shipments of steel are made.3 At the Morrisville
terminal, which bears the names of both SRT and
Robbins, the SRT staff performs functions for both
carriers, applies the same policies for both, and bills
Robbins for its share of the administrative expenses
incurred. SRT dispatchers control all dispatching at
the terminal. A Robbins safety director spends about
2 days a week at the terminal and performs safety
and inspection functions for both companies, as does
an SRT mechanic safety director.
At the Morrisville terminal, all equipment utilized
by SRT and Robbins is leased, either under a long-
term lease or under a lease from an owner-operator,
as described below. SRT employs 10 drivers who are
admittedly its employees. This complement is supple-
mented by owner-operators of equipment which is
leased by them to either SRT or Robbins and by
drivers hired by owner-operators to drive their equip-
ment. Robbins has 40 such drivers of leased equip-
ment and SRT has 8.4
The lease agreements between owner-operators of
equipment and the carriers involved, which were re-
2 The Employers ' motion to strike portions of Petitioner 's brief insofar as
it objects to the Petitioner's attempt to introduce into evidence a document
which it names "the old Robbins lease ," is hereby granted , absent any show-
ing by the Petitioner that such evidence is admissible as newly discovered
In all other respects, the motion is denied
3 SRT also , on occasion , acts as agent for one or more other carriers
4 The number of owner-operators who lease more than one tractor to
SRT and/or Robbins is not stated in the record
225 NLRB No. 99
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vised in some respects and reexecuted on or about
June 6, 1975,5 are generally summarized below, ex-
cept that the Robbins agreements require compliance
with regulations of the ICC and Department of
Transportation (DOT), while the SRT agreements re-
quire compliance with regulations of PUC and DOT.
Under the leases, the owner agrees to use the
equipment, together with drivers and all other neces-
sary labor, to transport, load, and unload on behalf
of the carrier, or on behalf of such other certified
carriers through authorized "trip leases" or inter-
change agreements, such commodities as the carrier
may make available to the owner. The carrier takes
possession of the equipment and, as a condition pre-
cedent to the validity of the lease, inspects it to insure
compliance with the government regulations pertain-
ing to its condition. Also, during the term of the lease
the equipment will be inspected periodically. If the
equipment does not comply with DOT requirements
it must be put in proper operating condition by the
owner, and failure to do so will result in the immedi-
ate termination of the lease.
For each trip the carrier agrees to pay the owner
74.7 percent of gross revenue.' The owner shall have
the responsibility of the carrier of satisfying the ap-
plicable government regulations, subject at all times
to verification by the carrier. The owner shall retain
all responsibility (a) for hiring and determining the
wages, hours, and working conditions of all drivers
and helpers necessary for performance of the owner's
obligations, who shall remain employees of the own-
er; (b) for selecting, purchasing, financing, and main-
taining the equipment; (c) for selecting all routes;
and (d) for paying all operating expenses, including
all expenses of fuel, oil, repairs, road taxes, mileage
taxes, fuel taxes, fines, licenses, permits, or any other
levies or assessments based upon operation of the
equipment, subject to any regulatory requirements
by various governmental agencies. The owner has fi-
nancial responsibility for workmen's compensation
and withholding and employment taxes on account
of drivers and helpers. The owner agrees to carry
bobtail and deadhead insurance.7 The carrier shall
provide cargo insurance; however, the owner shall be
liable to the carrier for up to a maximum of $1,000
where the owner or its employees or agents are at
fault.' The carrier also maintains, pursuant to regula-
tions, public liability and property damage insur-
5 Except as noted below, the Employers do not point to any substantial
changes in the reexecuted leases which would have a bearing on the issues
under review
6 Less a charge for rental of a trailer, if applicable The 74 7-percent rate
does not include a I-percent charge which , as noted below , is made for
providing Workmen's Compensation coverage for the owner-operators and
ani other drivers they may utilize to operate their equipment
Bobtailing involves operation of a tractor without a trailer; deadheading
is the operation of equipment without a load
ance ; however, the owner shall indemnify the carrier
for losses from its operation to a maximum of $200.
The owner reserves the right to trip lease. The carrier
provides decals to be fixed to the equipment while
under lease. The term of the lease is 30 days and
continuously thereafter until canceled by either party
by written notice. If for any reason the owner fails to
complete delivery, carrier has the right to complete
performance and hold the owner liable for cost there-
of and any other damages. Lastly, the parties to the
agreement state their intention to create the relation-
ship of carrier and independent contractor.
The Employer' s witness , Tranovich, testified as to
the practice under the lease agreements . Inasmuch as
the leases were revised and reexecuted after the filing
of the instant petition and about a month before the
hearing, it is not clear whether his testimony related
solely to practice under the new leases , or whether it
purported to include the practice under the antece-
dent leases . On the other hand, there was testimony
by Petitioner's witness , Stanley B. Moan, who leased
and operated his equipment at the Morrisville termi-
nal for approximately 9 years prior to June 2, 1975,
concerning actual practices under the lease arrange-
ment.
All the disputed drivers, including owner-operators
and others driving their equipment, must complete a
driver qualification questionnaire for the carrier to
which the equipment is leased and undergo a physi-
cal examination by a qualified physician, as required
by government regulations. The applicant is also giv-
en a multiple choice test of his knowledge of operat-
ing procedures under DOT regulations. Past employ-
ers are requested to complete a detailed inquiry form
concerning, inter alia, the applicant's ability to main-
tain accounts, salary garnishments, accidents, license
suspensions or revocations, injuries on the job, physi-
cal disabilities, reason for leaving, general conduct,
and competency as a driver. The applicant is also
given a road test.
A detailed inspection report is completed on the
owner's equipment. The same inspection report form
is utilized for monthly inspections of all vehicles
leased to SRT and Robbins. These inspections are
performed by Solamon, safety director and mechanic
of SRT, or one of his assistants . On the reverse side
of this inspection report is a leased equipment main-
tenance and inspection report form which the owners
are required to complete. It is there stated that in the
event the owner fails to complete this report, and/or
to have the reverse side completed by the designated
inspectors, his equipment will not again be loaded
until this requirement is complied with. It is stated
that completion of this report is "not merely a Com-
b At the Morrisville terminal the limit of the operator's liability is $500
ROBBINS MOTOR TRANSPORTATION 763
pany policy," but that government regulations re-
quire the carrier to cause the records to be main-
tained? Solamon and Summers, who is Robbins'
safety director, also conduct individual safety meet-
ings with all drivers.
As stated, the principal customer of Robbins and
SRT at the Morrisville terminal is the nearby Fairless
Works plant. Interstate hauls are made by Robbins;
intrastate hauls, by SRT. Leased equipment of own-
er-operators when used in making these hauls bear
the decals of the lessee carrier. Tranovich testified
that in general drivers of leased equipment are under
no compulsion to accept a particular load and may
reject any load freely without fear of reprisals. Yet
when asked if the first driver to call in gets his pick of
the loads, he responded: "This is basically true. We
also try to even the loads out, as it were. If a fellow
hasn't gotten a load in three days we would hopefully
offer him a load he could accept ...." On the other
hand, Moan testified that when he turned down a
load to Reading for SRT, he was not given any more
loads the rest of that day, and that this remained the
practice as long as he was employed.
On loads which are less than 40,000 pounds, in
order to accomodate the customer and have them
moved, the carriers, in their discretion, will pay a
premium, i.e., the rate is figured on the basis of 40,
000 pounds. Also, when a driver of a leased vehicle is
detained for more than 3 hours beyond his scheduled
reporting time before the shipper loads him, the ship-
per is billed by the carrier for the time in excess of 3
hours at a rate of $13.70 per hour, and upon receipt
of payment for such detention time from the shipper,
the carrier remits 74.7 percent of that amount to the
owner. Problems have arisen in the past with regard
to operators who "jump" or deviate from their time
scheduled by the carrier for arrival at the Fairless
Works plant to obtain their loads, thereby taking an-
other operator's time slot as directed by the carrier.
In January 1973, SRT imposed a fine of $20 for
jumping, to be paid to the operator whose load is
taken, and warned that anyone who adopts this atti-
tude would not only pay the fine but have his lease
cancelled.
Some loads of pipe are required to be "strung" and
there is a stringing charge to be added to the tariff
for the load. Operators have been instructed that if
the consignee will not make a notation on the deliv-
ery receipt that the load was strung, the driver must
do so. There was testimony that if the notation was
not made, the operator would not be paid for string-
ing the pipe.
9 There was testimony that the monthly inspections were in fact frequent-
ly not made by SRT
The carriers require chains and binders to secure
loads on vehicles and they require header boards to
protect the driver, in compliance with Federal Motor
Carrier Safety Regulations. If the shipper requires
the load to be tarped, the carrier requires the driver
to do so and to supply the tarpaulin.10 Also, there is
evidence that the carrier requires the load to be
tarped if there is any hint of inclement weather. By
letter dated March 8, 1973, from Tranovich, included
in the operators' pay envelopes, carrier provided that
anyone not tarping a bar load and receiving a claim
would pay for the entire claim, not just $500. The
letter also required obedience to the carrier's orders
with the added admonition, "and if I find anyone not
tarping a load, his lease will be cancelled, claim or
not."
The carrier's operations and the original assigned
trips are one way. However, as set forth in a letter to
the Morrisville, Pennsylvania, drivers, all leased op-
erators going to the Baltimore area are not free to
return or arrange their own loads, but "are required
to help out with some of the return loads to the New
York City area." Any other return trip leases must
also go through the carrier, for which it charges a
1-percent handling charge.
Prior to the execution of new leases in early June
1975, SRT and Robbins both had permanent lease
agreements covering the same equipment with some
of the same operators in the belief that it was permis-
sible to do so under the separate state and Federal
regulations. This has presumably changed under the
new leases which give the operators the option as to
which carrier they would lease to.
Free parking space is provided for leased equip-
ment at the Morrisville terminal. With regard to
road, mileage, and fuel taxes, the record is unclear as
to who is responsible. In all states except New Jersey,
the states bill SRT for gasoline taxes,on the basis of
mileage of the vehicle within the state, not the
amount of gasoline actually purchased, and SRT de-
ducts from the operator's settlement sheets the taxes
paid on his behalf, allowing him credit for any fuel
receipts turned in by him. SRT in turn uses these fuel
receipts for gasoline purchased within the state as an
offset against the mileage tax. The operators do not
receive any accounting of SRT's handling of the fuel
tax obligations, although SRT states it would provide
it on request.
As to certain other financial and administrative as-
10 Tarpaulins, as well as hardhats , required by a shipper or consignee
because of regulations of the Occupational Safety Health Administration
imposed on them , are made available by the carriers to the operators at 10
percent above cost, as a convenience to the driver A tire bank is also
maintained by SRT at the terminal where purchases can be made on the
same basis
11 SRT handles this tax obligation for all Morrisville terminal operations
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pects of the relationship between the owner-opera-
tors and the carriers, the practice is for SRT, on its
own and Robbins' behalf, to pay the operators their
share of the tariffs billed regardless of payment from
the shipper, to make interest-free cash advances to
the operators in amounts up to the anticipated reve-
nues due the operator, which advances are to be re-
paid at final settlement for the week, and to bill the
shippers for detention time and to distribute the pro-
ceeds to the operators in accordance with the lease
percentages. SRT also maintains records of logs kept
by all drivers," and it handles the administrative de-
tails of accident reporting as required by its insur-
ance carrier and DOT regulations. SRT also provides
and maintains Workmen's Compensation coverage
for all drivers operating leased equipment, but in
payment therefor deducts 1 percent from the
operator's share of the revenues received." SRT has
a policy of making personal loans to drivers up to a
maximum of $500, charging drivers of leased equip-
ment 10 percent interest on the loan balance, with
repayment in terms of at least $50 a month.
The drivers who are admittedly employees of SRT
also receive as compensation a percent of the load
revenue, either 30 or 31 percent depending on length
of service. SRT also provides them with a medical
plan at a cost of approximately $50 per month, 5
paid holidays at an approximate rate of $35 per day,
and vacations, compensation for which is a weekly
pro rata share of their average weekly commission
for the previous 6 months. Loans to them are interest
free and repayment terms are liberal. Drivers of
leased equipment receive none of these benefits on
the same basis.
In making our determination as to the status of
these owner-operators, we are guided by the common
law right-of-control test, whether the carriers exercise
control over the means used to achieve the ends de-
sired or merely over the ends to be achieved. In ap-
plying this test, we do not consider any one factor
determinative. In making our examination of the
facts we must consider the degree of control exer-
cised over the owner-operators regardless of the rea-
sons for the imposition of that control; that is,
whether inspired by governmental regulations or for
other business reasons.
Based upon our review of the record facts above
summarized, we are not persuaded that the owner-
operators in fact occupy the status of independent
contractors. This is demonstrated first of all by the
carrier's requirements relating to safety in the condi-
12 Moan testified that he has been asked by SRT to modify his logs be-
cause they showed too many hours.
13 Drivers of leased equipment are required by Pennsylvania statute to be
covered by Workmen's Compensation
tion of the equipment, the securing and tarping of
loads, and other aspects of the operation of the
leased vehicles, including the imposition of discipli-
nary measures and threat of lease cancellation.
Moreover, while the Employers state that the owners
of leased equipment are free to accept or reject loads
which are offered to them and to enter into trip leas-
es with other carriers upon delivery of their loads, the
record facts above set forth reveal that the Employ-
ers exercise control over the owner's decisions with
respect to these matters by means of instructions,
fines, threats of reprisal and of cancellation of their
leases; and indeed, as indicated, until recently, some
of the owners had permanent leases with both SRT
and Robbins, thus providing the Employers with
even greater flexibility in the scheduling of loads for
their customers. As well, there are a number of ways
in which the entrepreneurial risk factor frequently as-
sociated with an independent contractorship is mini-
mized. Thus, the Employers wholly assume the risk
of nonpayment by their customers; limit the risk of
loss to owner-operators in the event of claims cov-
ered by cargo and liability insurance while the leased
equipment is being operated in their behalf; perform
a number of administrative services for the owner-
operators without apparent expense to them, such as
in the handling of billing for detention time, the pro-
cessing of insurance claims, and the handling of fuel
tax payments; make interest-free cash advances and
extend personal loans at interest rates lower than
charged by financial institutions; in some cases, pay
a premium for loads below a minimum weight; make
available to the owners free parking for the leased
equipment; and sell certain items of equipment need-
ed in their operations at 10 percent above cost. Final-
ly, the absence of an arm's length relationship typical
of a true independent contractorship is suggested by
the facts that the Employers unilaterally decide what
the owner-operator's percentage of load revenues
shall be for the use of the leased equipment and the
driver's services; whether or not a premium will be
paid for loads below 40,000 pounds; and whether or
not to charge for certain administrative services per-
formed for the owners and for certain benefits pro-
vided them to expedite their operators.
For these reasons, we find that the owner-opera-
tors and the drivers hired by them to operate their
leased equipment are employees of the lessee car-
riers. We also find, inasmuch as SRT applies the
same labor relations policies to all the employees in-
volved, that SRT and Robbins constitute joint em-
ployers for unit purposes. In the circumstances, we
conclude that the following unit is appropriate herein
for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
ROBBINS MOTOR TRANSPORTATION 765
All truckdrivers employed by the Employers at
their Morrisville, Pennsylvania, terminal, includ-
ing owner-operators,14 and nonowner operators
of equipment leased by the owners to the Em-
ployers, excluding office clerical employees,
guards, and supervisors as defined in the Act.
14 As the record does not reveal how many owner-operators have lease
agreements covering more than one tractor , there is no factual basis for
determining whether or not they are supervisors as defined in the Act Ac-
cordingly, if there are such "multiple" owner-operators, they shall be per-
mitted to vote under challenge
Accordingly, the case is hereby remanded to the
Regional Director for Region 4 for the purpose of
conducting an election pursuant to his Decision and
Direction of Election, as modified herein, except that
the Intervenor, Fraternal Association of Special
Haulers, Local 100 (FASH), shall be included among
the choices on the ballot and the eligibility payroll
period for the election shall be that immediately pre-
ceding the date of issuance of this decision.15
15 (Excelsior footnote omitted from publication I