The Aetna Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 23, 1971

194 N.L.R.B. 740 (N.L.R.B. 1971)

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Aetna Freight Lines , Incorporated and Fraternal
Association of Special Haulers , Local Union No.
100, Petitioner . Case 6-RC-5456
December 23, 1971
DECISION ON REVIEW
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 23, 1971, the Regional Director for Region
6 issued a Decision and Direction of Election in the
above-entitled" proceeding in which, inter alia, he
found that the owner- and nonowner-drivers of
equipment leased to the Employer were its employees
and not independent contractors or employees of
independent contractors and that the requested unit
of such drivers is appropriate.
Thereafter, in accordance with Section 102.67 of the
National Labor Relations Board's Rules and Regula-
tions, Series 8, as amended, the Employer filed a
timely Request for Review of his Decision on the
grounds that, in failing to find that the Petitioner was
disqualified from acting as a labor organization, he
departed from officially reported precedent, and that,
with respect to his finding that the requested drivers
are its employees, there are compelling reasons for
reconsideration of policy.
By telegraphic order dated August 17, 1971, the
National Labor Relations Board granted the Request
for Review and stayed the election pending decision
on review. The Employer and the Intervenor, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, filed briefs on
review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
1 The Employer's request for oral argument is hereby denied as, in our
opinion, the Request for Review and the briefs on review adequately
present the issues and the positions of the parties
2 We reject the Employer's contention that the Regional Director erred
in finding that the single owner-drivers and the nonowner-drivers are
employees of the Employer within the meaning of the Act In making
determinations of whether drivers operating under lease agreements with
common earners are employees of independent contractors, the Board has
long applied the common law right-of-control test under which 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 reaching such ends Deaton Truck Line, Inc., 143 NLRB 1372, affd 337
F 2d 697 (C.A 5) The Board has made it abundantly clear that "the
application of the test is not a `perfunctory exercise' but demands a
balancing of all the evidence relevant to the relationship " Deaton Inc, 187
NLRB No 102, and cases cited therein. Obviously, such balancing requires
consideration of those elements of control over "the means to be used"
retained by the carriers in direct conformity with Interstate Commerce
Commission regulations We see no reason to abandon the test either in the
Employer's arguments or in our colleague's concern that such application
of the right-of-control test too seldom results in a finding of independent
contractor status We apply the test neither to discourage nor to encourage
the use of independent contractors in this industry, for we believe such
subjective considerations play no proper role in our determinations Our
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the entire record in this
case with respect to the issues under review, including
the briefs on review,I and hereby affirms the Regional
Director's Decision,2 with the following additional
findings:
The Regional Director found, on the basis of record
evidence that the Petitioner is an organization in
which employees participate and which exists in
whole or in part for the purpose of bargaining and in
fact has bargained with employers concerning wages,
hours, and working conditions, that it is a labor
organization within the meaning of the Act. As above
indicated, the Employer asserts that the Petitioner is
disqualified from acting as a bargaining representa-
tive of the requested unit of owner and nonowner-
drivers of equipment leased to the Employer by
reason of its association with and domination by
Fraternal Association of Steel Haulers, herein re-
ferred to as Steel Haulers .3 The Employer contends
that fleetowners who lease a substantial amount of
equipment to the Employer and may be members of
Steel Haulers are in competition with the Employer
when they lease equipment to other carriers.
In Tryon Trucking Inc., 192 NLRB No. 123, the
Board rejected as lacking evidentiary support a
contention that the Petitioner's parent organization
was controlled by individuals other than drivers or
owner-drivers. In the instant case, we likewise find no
record evidence to support the argument that fleet-
owners through their membership in Steel Haulers
dominate or control the affairs of the Petitioner. We
therefore find no merit in the contention that the
Petitioner is disqualified from acting as a labor
organization herein.
The case is remanded to the Regional Director for
the purpose of conducting an election pursuant to his
concern is with determining whether the parties to the relationship have in
fact established the drivers as true independent contractors or have clothed
them with employee status In our view , the Regional Director has properly
applied the right-of-control test to the facts of this case and we affirm his
finding that single owner -drivers and nonowner-drivers are employees of
the Employer In affirming that finding , we rely on the record facts recited
in his decision and upon the additional record facts set forth below When
drivers make mistakes in logs or manifests which must be corrected, the
Employer issues stoploads (instructions not to give such drivers loads until
he corrects his errors) through its dispatchers . The Employer has issued a
directive that four stoploads can result in cancellation of the driver 's lease
The Employer provides a number of services for the drivers. It assists them
in the purchase and financing of their equipment; it sells them all necessary
items , such as gas , oil, safety devices, and parts ; and it has established
central pickup points for the salvage of items such as tires for resale The
Employer also issues directives from time to time setting forth procedures
to be followed by drivers in situations which arise in the course of their
duties, such as accidents Supplementing the ICC requirements as to safety,
the Employer requires the drivers to be at least 25 years of age and to have
at least 3 years ' driving experience in hauling steel
3 In US Steel Corp v . Steelhaulers, 431 F.2d 1046, the Third Circuit
Court of Appeals found that the appellants had not met the burden of
proving Steel Haulers to be a labor organization, thereby immunizing it
from an antitrust injunction.
194 NLRB No. 120
AETNA FREIGHT LINES, INC. 741
Direction of Election except that the eligibility payroll
period therefor shall be that immediately preceding
the date of issuance.
CHAIRMAN MILLER, concurring:
I concur in the' conclusions reached here by my
colleagues. While in other cases such as Deaton, Inc.,
187 NLRB No. 102 (1971), I have expressed the need
for careful scrutiny of the facts in determining
whether the individuals involved are "employees" or
"independent contractors," I am satisfied that in this
case sufficient control over the manner in which these
individuals operate has been demonstrated to support
a finding of employee status. The severe restrictions
on trip leasing, the use of lease terminations as
discipline for failure to accept loads, the carefully
prescribed time restrictions on deliveries, the detailed
and uniformly applied rules regarding procedures in
the event of delays and accidents, and the "how to do
it" directions covering other aspects of the driving
operation, all go well beyond governmental regulato-
ry rules for the industry.
Furthermore, the payment of hourly rates for
detention time, the payment of special cash and
merchandise bonuses, and the unilaterally deter-
mined allocation of expenses between Aetna and the
drivers suggest that there are more "employee"
attributes and less independence than would be
present in a true independent contractor relationship.
In my view, my colleagues are sometimes too ready
to find employee status in cases involving this
industry. There has been a trend toward finding
employee status in nearly every case, and to virtually
eliminate, by a sort of decisional fiat, any possibility
of independent contracting in the trucking field.
With that trend I disagree. But if a company such as
the Employer here wishes to have whatever operating
advantages accrue to it by utilizing independent
contractors rather than employees, it must afford
them the highest degree of independence which ICC
and state regulatory authorities will permit. Paper
labels will not suffice. There must be genuine
independence. The facts here indicate that such
independence does not exist.
For these reasons, I concur in finding employee
status.