The John Breuner Co.

National Labor Relations Board - Board Decisions

Apr 14, 1980

248 N.L.R.B. 983 (N.L.R.B. 1980)

THE JOHN BREUNER COMPANY 983
The John Breuner Company and General Truck
Drivers, Warehousemen and Helpers and Auto-
motive Employees Union Local 315, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case 32-
CA-I 190
April 14, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On September 6, 1979, Administrative Law
Judge George Christensen issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and the Respondent filed a brief in answer to the
General Counsel's exceptions.
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 record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
2 The Administrative Law Judge relies, inter alia, on Cabot Corporation
and Payne and Keller of Louisiana, Inc., 223 NLRB 1388 (1976), affd sub
no. International Chemical Workers Union Local 483, 561 F.2d 253
(D.C.Cir. 1977), in concluding that Breuner is not a joint employer of the
employees here involved. Therein, a Board panel majority held that a
manufacturer and a construction-maintenance firm that had a cost-plus
contract to perform certain work for the manufacturer were not joint em-
ployers of the employees supplied by the cost-plus contractor. Chairman
Fanning dissented from the majority holding in that case, based on facts
which are, in his view, significantly different from those found in the in-
stant case. Thus, unlike Cabot, the wage rates paid to C & H and Eckdahl
employees are not determined in the contracts between those firms and
Breuner; nor does Breuner require that the aforesaid employees observe
its regulations governing employee conduct, have a right to or in fact
assign work to those employees, discipline them, supervise the manner in
which they perform the work required, or participate in the selection of
new hires. Accordingly, Chairman Fanning does not find present in this
case the requisite degree of control for finding a joint-employer relation-
ship.
248 NLRB No. 125
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge:
On January 18, 19, and 22, 1979, I conducted a hearing
at Oakland, California, to hear issues raised by a com-
plaint issued on October 25, 1978,1 based on a charge
filed by General Truck Drivers, Warehousemen and
Helpers and Automotive Employees Union Local 315,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America 2 on August 30.
The complaint alleged the John Breuner Company, 3 a
retailer of furniture and home appliances, violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act,
as amended (hereafter called the Act), by transferring the
delivery (and installation) of a portion of the merchan-
dise sold at its Richmond and Pleasant Hill, California,
stores to drivers (and their helpers) working out of its
Benicia, California, warehouse without prior bargaining
with IBT 315 concerning the effects of that transfer on
the drivers (and their helpers) employed by Eckdahl and
C & H and represented by IBT 315 who performed such
delivery prior to the transfer.
Breuner conceded it did not bargain with IBT 315
prior to effecting the change, contending it had no legal
obligation to do so because it was not (as alleged in the
complaint) a joint employer with Eckdahl and C & H of
the affected driver/helpers. Breuner also contended the
impact of the transfer on the Eckdahl and C & H driver/
helpers was so slight no remedial order is warranted.
The issues before me are whether:
1. Breuner, Eckdahl, and C & H were joint employers
of the Richmond and Pleasant Hill driver/helpers.
2. If so, whether the transfer of a portion of the deliv-
ery of merchandise from the two stores to Benicia for
delivery by others without prior bargaining between
Breuner and IBT 315 concerning the effect of that trans-
fer on the Richmond and Pleasant Hill driver/helpers
violated Section 8(a)(1) and (5) of the Act.
3. If so, whether the effect on those driver/helpers
was so minimal no remedial order is warranted.
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence, ex-
amine and cross-examine witnesses, argue and file briefs.
Briefs have been received from the General Counsel,
Breuner, and Eckdahl.
Based on my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I
enter the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that at times material Breuner was an employer engaged
in commerce in a business affecting commerce and IBT
315 was a labor organization within the meaning of Sec-
tion 2(2), (5), (6), and (7) of the Act.
' Read 1978 after further date references omitting the year.
2 Hereafter called IBT 315.
3 Hereafter called Breuner.
THE JOHN BREUNER COMPANY
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE. ALLEGED UNFAIR LABOR PRACTICE
A. Background
For many years Breuner has been a major retailer and
lessor of furniture and appliances, primarily in California.
Its warehousing and delivery practices have varied from
place to place and time to time. In some cases, it has
warehoused and delivered merchandise sold at a number
of its retail outlets in a particular area at and from a cen-
tral warehouse located within that area; in other cases, it
has warehoused and delivered merchandise sold at indi-
vidual retail outlets at and from those outlets. It also has
at some times and places accomplished deliveries with its
own trucks and employees and at other times and places
contracted with various motor carriers to deliver its mer-
chandise with Breuner trucks and contractor employees
or contractor trucks and employees, shifting at various
times from one method to another. For example, at one
time Breuner maintained a central warehouse at Emery-
ville, California, and caused merchandise sold at its retail
outlets in Alameda County to be delivered in its own
trucks by its own employees; Breuner subsequently con-
tracted with Signal Trucking Company to accomplish
those deliveries with Signal equipment and employees;
later, Breuner contracted with Eckdahl to assume the de-
liveries with Eckdahl equipment and employees; still
later, Breuner closed the Emeryville warehouse and
Oakland store, shifted merchandise to its newly opened
Richmond, California, store for warehousing and deliv-
ery, and contracted with Eckdahl for delivery of mer-
chandise sold at the new Richmond store with Eckdahl
equipment and senior personnel transferred from Emery-
ville. At its Daly City and San Carlos, California, stores,
Breuner warehoused the merchandise sold at the stores
and utilized its own equipment and employees; to deliver
the merchandise; Breuner subsequently contracted with
Leaseway Trucking to assume the deliveries with
Leaseway equipment and employees; still later, Breuner
terminated Leaseway's contract and contracted with
Eckdahl to accomplish the deliveries with Eckdahl's
equipment and employees; and most recently, Breuner
terminated Eckdahl's contract and reassumecl deliveries
with its own equipment and employees. Similar changes
have occurred at other locations and times.
This case involves driver/helpers who were delivering
furniture, appliances, and rentals from Breuner's retail
outlets at the new 4 Richmond and Pleasant Hill, Califor-
nia, retail stores at the time5 Breuner shifted the ware-
housing and delivery of appliances and rentals from the
new Richmond and Pleasant Hill stores to a newly
opened central warehouse at Benicia, California.
The change in warehousing practices is not before me,
inasmuch as it was conceded the warehousing of rentals
and appliances at the new Richmond and Pleasant Hill
stores at the time of the change was performed by
Breuner employees represented by IBT 315, covered by
a contract between Breuner and IBT 315, and Breuner
bargained with IBT 315 concerning the effect on the
4Breuner closed a small retail outlet in Richmond in te early 1970's
and later opened a new and larger store.
5 October I.
warehouse units of the shift of the warehousing of appli-
ances and rentals to Benicia prior to its accomplishment.
Nor is the issue of whether Eckdahl and C & H violated
the Act by failing or refusing to bargain with IBT 315
concerning the reduction of unit work caused by the
change before me, since no charge to that effect has been
filed.
Pleasant Hill (C & H)
At Pleasant Hill, prior to 1970, Breuner warehoused
and delivered merchandise sold at its Pleasant Hill and
old Richmond, California, retail outlets" from its Pleas-
ant Hill facility with its own warehousemen, driver/help-
ers, and equipment. At that time its warehousemen, driv-
ers, and helpers at Pleasant Hill were represented by IBT
315 and covered by a contract between Breuner and IBT
315. In late 1970, Breuner entered into a contract with C
& H wherein C & H assumed those deliveries.
At that time C & H was owned and operated by two
partners, Holden and another (whose name does not
appear on record). C & H was a motor carrier licensed
by the California Public Utilities Commission (hereafter
called PUC) to operate as a common carrier, subject to
its rules, regulations, and tariffs. Its business consisted of
making deliveries in the area east of San Francisco Bay
for various retailers, namely, J. C. Penney Stores, Berko-
vich & Sons, Berman's, Davies Furniture, etc., with its
own driver/helpers and equipment. Its driver/helpers
were represented by IBT 315 and covered by a contract
between C & H and IBT 315.
C & H agreed to deliver all merchandise sold at
Breuner's Pleasant Hill and old Richmond stores from
the Pleasant Hill store/warehouse, leasing Breuner's
trucks previously utilized by Breuner for such deliveries;
to offer employment to the driver/helpers formerly em-
ployed by Breuner to accomplish those deliveries, with
retention (by those who accepted) of seniority for pur-
poses of layoff and recall and receipt of fringe benefits
based on their combined length of service with Breuner
and C & H and wages and fringes established in the cur-
rent C & H-IBT 315 agreement;7 to maintain the
Breuner vehicles in good repair and condition; to hold
Breuner harmless against any claim versus Breuner aris-
ing out of C & H's delivery operations; to maintain ap-
propriate levels of insurance against claims for bodily
injury, property damage, etc., arising out of C & H's de-
livery operations with a carrier approved by Breuner; to
provide, supervise, and pay driver/helpers to accomplish
the deliveries; to relieve from such deliveries any driver/
helper whose misconduct damaged Breuner's reputation
and good will; to maintain books in accordance with
ICC and PUC regulations and permit Breuner access
thereto on reasonable notice to determine the reasonable-
ness of charges billed to Breuner by C & H for service
or reimbursement under applicable tariffs. Breuner
agreed to cause all merchandise sold at its Pleasant Hill
and Richmond stores to be delivered by C & H at rates
charged under applicable tariffs; to reimburse C & H for
6 This was the older Richmond store which closed prior to the closing
of the Emeryville warehouse.
7 IBT 315 acceded to this, as a result, the former Breuner driver/help-
ers received increased wages and benefits.
THE JOHN BREUNER COMPANY 985
all costs incurred by C & H for the maintenance, repair,
and operation of the vehicles used therefor, and to pay C
& H a management fee based on the number of vehicles
used each day in the deliveries. It was also agreed C &
H was to hire, pay, supervise, and direct its own employ-
ees in accomplishing the deliveries, pay its own taxes and
insurance, that either C & H or Breuner could terminate
the contract on 90 days' notice, and that Breuner could
substitute another carrier in the event C & H was unable
to deliver Breuner's merchandise due to bankruptcy, loss
of license, or labor dispute.
Holden and his partner subsequently dissolved their
partnership (in 1976),8 with Holden retaining the part-
nership name and the Breuner account and his partner
assuming the J. C. Penney account under a different
name. The record does not indicate how other accounts
were divided. On December 14, 1976, Breuner and
Holden entered in a new agreement continuing in effect
the terms of the previous C & H-Breuner contract, but
showing C & H as the sole proprietorship of Holden. C
& H continuously performed on the previous (1970) and
1976 contracts to and including the date of hearing.
Neither at the time the original contract was executed
between Breuner and C & H, nor subsequently, has
Breuner held any ownership or management interest in C
& H or vice versa; there has not been any interchange of
employees between the two at any time during the con-
tract relationship; the trucks operated by C & H in ac-
complishing Breuner's deliveries are painted in Breuner's
colors and carry the Breuner logo (they also carry a
printed notice they are operated by C & H); they are ga-
raged at Breuner's Pleasant Hill facility and C & H uses
Breuner office space, timeclock, and rack in its oper-
ations free of charge; while C & H refused to accede to
Breuner's request that C & H's driver/helpers assigned
to Breuner deliveries wear a Breuner uniform, C & H
agreed to require them to wear a brown shirt (one of the
Breuner colors), provided Breuner reimburse C & H for
the cost of same (Breuner agreed); a Breuner employee
in the warehouse unit (receiving clerk) sorts the delivery
tags for the subsequent day's delivery each afternoon by
area, so the number of trucks necessary to accomplish
the deliveries may be ascertained and, in Holden's ab-
sence from the premises,9 directs mobile repair units to
trucks which have broken down while out on deliveries
and informs incoming drivers of specials which need de-
livery,' ° but C & H assigns a credit for the clerk's ser-
vices in billing Breuner, and Holden decides what equip-
ment and drivers shall accomplish the deliveries; Holden
has done all hiring, firing, and disciplining of C & H
driver/helpers assigned to Breuner deliveries since ex-
ecution of the first Breuner-C & H contract, without in-
terference or advice from Breuner; eight former Breuner
employees hired as driver/helpers by C & H subsequent
8 Sometime prior Breuner closed its small Richmond store and C & H
was only delivering merchandise sold at Pleasant Hill.
9 Holden ordinarily spends approximately 4 hours per day at Breuner's
Pleasant Hill facilities. usually in the morning
'o Breuner sometimes finds it necessary to schedule special (same day)
deliveries after the trucks have left for the day's deliveries. C & H has set
up a system based on truck returnls for such deliveries unless the special
is scheduled after the last truck has returned, after that time, such delis
ery either must be made by Breuner or held oer to the following day
to the initial C & H-Breuner contract have not received
seniority status under the C & H-IBT 315 contract based
on their combined Breuner-C & H service for purposes
of layoff, recall, fringe benefits; either Holden or Holden
and his partner have negotiated all agreements and han-
dled all grievances between C & H and IBT 315 both
before and since 1970, without advice or interference
from Breuner; ' and C & H's personnel policies govern-
ing its driver/helpers assigned to Breuner differ from
Breuner's personnel policies governing its warehousemen
at Pleasant Hill in several respects, i.e., C & H requires
its employees to be clean shaven and Breuner does not-
C & H has condoned thefts and Breuner has a rule re-
quiring discharge for theft-Breuner has condoned
drinking on the job and C & H does not-Breuner's em-
ployees receive discounts on the purchase of Breuner
merchandise and C & H employees do not.
C. Richmond (Eckdahl)
Elaboration of a number of events preceding Breuner's
October 1 transfer of the warehousing and delivery of
rentals and appliances from the new Richmond store to
the Benicia warehouse is necessary to a full understand-
ing of the situation
Prior to 1971, Breuner maintained a central warehouse
at Emeryville from which it made deliveries of merchan-
dise sold by its retail outlets in Alameda County (mainly,
its Oakland store). Until 1971 the deliveries from its
Emeryville warehouse were made in its own trucks with
its own driver/helpers. The latter were represented by
IBT 70;12 the warehousemen were represented by an-
other local of IBT. Breuner decided in 1971 to contract
with Signal Trucking Services, Limited for the deliv-
eries, retaining the warehouse work.
Prior to executing a contract with Signal, Breuner met
with IBT 70 and executed an agreement with that orga-
nization for a 10-year term extending through June 30,
1981, wherein Breuner agreed it would require the con-
tractor assuming its delivery service in Alameda County
(IBT 70's geographical jurisdiction) to offer employment
to the Breuner driver/helpers performing that work, to
grant those who accepted retention of their seniority for
purposes of layoff, recall, sick leave, and severance pay
based on their combined length of service with Breuner
and such contractor, to exact a similar requirement from
any successive contractor, and to meet and discuss with
IBT 70 the effect on the driver/helpers then employed
to make Breuner deliveries in Alameda County on any
I I credit the denial of Holden and James Albertson, Breuner's vice
president and general personnel manager, that Holden called a recess in
the 197t C & H-IBT 315 negotiations for the purpose of consulting with
and securing Breuner's position vis-a-vis the payment of severance pay
based on service prior to 1976; 1 find Holden requested the recess, made
a telephone call to Breuner's receiving clerk to check on the number of
deliveries scheduled for the following day, and did not respond to Henri-
cus' question on returning as to whether he had called to check with Al-
herison on the issue (under discussion prior to the recess), only stating
tilere was no change in this position Breuner never had requested that
any driver or helper be disciplined or not disciplined; all such decisions
were lolden's, including his discharge of a friend of a Breuner executive
' I find at all pertinent times IHT 7(1 was a labor organization within
the Imeaillng of the Act
THE JOHN BREUNER COMPANY 5
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
move of Breuner's terminal outside the geographical ju-
risdiction of IBT 70.
On July 1, 1971, Signal agreed to deliver all merchan-
dise scheduled for delivery to Breuner's customers from
the Emeryville warehouse; to offer employment to all of
Breuner's driver/helpers who previously performed such
deliveries, with retention of seniority for purposes of
layoff, recall, sick leave, and severance pay based on
their total Breuner-Signal length of service; to purchase
Breuner's existing fleet of motor vehicles utilized in such
deliveries at fair market value, replacing vehicles as and
when necessary to maintain deliveries after joint agree-
ment such need existed; to maintain and fuel the vehicles;
to maintain the vehicles in the Breuner colors and logo
with the added legend "owned and operated by Signal"
and use them only for Breuner deliveries and require its
driver/helpers to wear Breuner uniforms paid for by
Breuner, to be solely responsible for the dispatching, op-
eration, and maintenance of the equipment, including the
providing of driver/helpers to man the equipment and
accomplish the deliveries and to immediately relieve
from deliveries any Signal driver/helper whose miscon-
duct adversely affected Breuner's good will and reputa-
tion; in the event their relations terminated, to resell the
fleet existing at the time of termination to Breuner based
on cost less depreciation over a 6-year period, with a 5-
percent salvage value; to hold Breuner harmless for any
claims arising out of Signal's operations under their
agreement; to maintain appropriate levels of insurance on
Signal's employees and equipment with a carrier ap-
proved by Breuner; to keep books in accordance with
ICC and PUC regulations and permit Breuner reasonable
access thereto to determine the reasonableness of
charges. Breuner agreed to cause all merchandise deliv-
ered to its customers from its Emeryville warehouse to
be delivered by Signal at rates charged under applicable
tariffs for each truck and driver utilized each day, to re-
imburse Signal for all maintenance, fuel, and license cost,
fees and taxes (excluding income taxes) and costs for the
services of the helpers; and to pay Signal a management
and other scheduled fees. It was agreed Signal was to su-
pervise, dispatch, hire, direct, and pay its employees as-
signed to deliver Breuner's merchandise, that either
could terminate their contract on 90 days' notice and
that Breuner could substitute another carrier forthwith in
the event Signal was unable to deliver Breuner merchan-
dise due to loss of license, bankruptcy, or labor dispute.
The former Breuner drivers were covered by the cur-
rently effective Signal-IBT 70 collective-bargaining
agreement.
In 1974, Breuner terminated its contract with Signal
and contracted with Eckdahl Warehouse Company to
assume its deliveries from Emeryville.
Eckdahl was an established company with operations
throughout California. While it began as a specialist in
furniture deliveries, by 1974 it was engaged not only in
the delivery to wholesalers and retailers of furniture
shipped from manufacturers by rail and piggyback, it
also delivered furniture from various retailers in Califor-
nia to their customers, ran warehouses, and leased trucks
and men for delivery operations generally. Eckdahl was
and is a licensed motor carrier subject to ICC and PUC
regulation. It never has had any financial or ownership
or management interest in Breuner, nor has Breuner had
any such interest in Eckdahl. Approximately 5 percent of
Eckdahl's annual gross income is derived from it business
with Breuner.
Eckdahl agreed to purchase the Signal fleet utilized in
the Breuner deliveries from Emeryville on the terms
stated in the Breuner-Signal contract; agreed to offer em-
ployment to the former Signal driver/helpers who per-
formed Breuner deliveries from Emeryville with senior-
ity based on their combined Breuner-Signal-Eckdahl
length of service for purposes of layoff, recall, severance
pay, and sick leave; assumed the Signal-IBT 70 contract
covering those employees; and generally accepted the
balance of the terms of the Signal-Breuner arrangement
set forth above, with some exceptions. Those exceptions
were a change in the termination provision from 90 to 30
days, the replacement on the trucks of the Eckdahl
legend the deletion of the provision requiring the termi-
nation of any employee whose misconduct Breuner be-
lieved affected its reputation or good will, and provisions
requiring Breuner to reimburse Eckdahl for increased
costs resulting from future increases contained in the cur-
rent and any future Eckdahl-IBT 70 agreements.
In 1976 Breuner decided to close its Oakland store and
Emeryville warehouse, and also decided to shift mer-
chandise to its new Richmond store for warehousing
prior to sale and delivery from that store. The Richmond
store was in Contra Costa County, within the geographi-
cal jurisdiction if IBT 315.
In accordance with its 10-year agreement with IBT 70,
Breuner notified IBT 70 of its plans and met with IBT 70
to discuss them. In the course of that meeting, Breuner
agreed to offer Eckdahl the delivery work from the new
Richmond store, provided Eckdahl offered employment
to the number of senior driver/helpers assigned to the
Emeryville deliveries needed to accomplish deliveries of
Breuner's merchandise sold at the new Richmond store
and continue in effect the other provisions of the
Breuner-Eckdahl 1974 contract recited heretofore. Eck-
dahl accepted the Breuner proposal.
Eckdahl subsequently met with IBT 70 and IBT 315
(the then-current contract between Eckdahl and IBT 70
was scheduled to expire in 1976 and all three parties
were aware Eckdahl was going to assume delivery oper-
ations from the new Richmond store shortly-with that
store in IBT 315's geographical jurisdiction). Del Ben-
nett, Eckdahl's vice president, handled the negotiations
on Eckdahl's behalf. 3s He requested that Albertson make
himself available in a side room to answer any questions
Bennett might have in the course of those negotiations
concerning the seniority of driver/helpers currently em-
ployed by Eckdahl at Emeryville vis-a-vis their eligibility
to transfer to the new Richmond operations or their sev-
erance. As a result of that meeting, it was agreed the
number of senior driver/helpers employed by Eckdahl
for Breuner's Emeryville deliveries necessary to accom-
plish deliveries from Breuner's new Richmond stores
would remain in Eckdahl's employ with seniority for
a3 The complaint alleged, the answer admitted, and I find at all perti-
nent times Bennett was an officer, supervisor, and agent of Eckdahl,
acting on its behalf
------ -------- ---------- ____ ___ ------ ___
THE JOHN BREUNER COMPANY 987
purposes of layoff, recall, sick leave, and severance pay
based on their total length of service with Breuner,
Signal, and Eckdahl; the balance of the driver/helpers
currently employed would be terminated with severance
pay and recall rights for a limited period in the event de-
liveries were resumed from an Alameda County-based
terminal, and that Eckdahl and IBT 315 would negotiate
a contract covering the rates of pay, wages, hours, and
working conditions of the driver/helpers transferred to
the new Richmond store on the basis of IBT 315's cur-
rently prevailing agreements for new furniture deliveries
in the Contra Costa County area. Eckdahl and IBT 315
subsequently negotiated a contract covering the trans-
ferred driver/helpers (and subsequent hires).
Since that time, Eckdahl has operated vehicles pur-
chased from Breuner (or their purchased replacements)
in delivering Breuner's merchandise from the new Rich-
mond store; the trucks have been painted in Breuner
colors, contain the Breuner logo, and contain a legend
they are owned and operated by Eckdahl; the trucks
have been utilized solely for Breuner deliveries and
parked at Breuner's new Richmond store facilities when
not in use; the Eckdahl driver/helpers have worn
Breuner uniforms while making deliveries; and Eckdahl
utilizes space at the new Richmond store, Breuner's time-
clock and timecard rack in its operations without charge;
Eckdahl driver/helpers have made all deliveries from the
new Richmond store; there has been no interchange be-
tween Breuner and Eckdahl employees; and Breuner em-
ployees hired by Eckdahl subsequent to the initial trans-
fer to deliver merchandise from the new Richmond store
have gone to the bottom of the Eckdahl-IBT 315 senior-
ity list for all pruposes. An Eckdahl employee has routed
and dispatched the trucks and driver/helpers assigned to
the deliveries, handled repair requests, scheduled deliv-
eries of specials, pickups of merchandise by other motor
carriers for interstore deliveries, and occasionally used a
Breuner van to deliver a special. Eckdahl negotiated the
initial agreement (and currently effective) between it and
IBT 315 covering its driver/helpers employed at the new
Richmond store without Breuner's participation,' 4 as it
had with IBT 70; processed all grievances under its con-
tracts with IBT 70 and 315 without interference or
advice by Breuner, and hired and disciplined its driver/
helpers employed at the new Richmond store without in-
terference or advice by Breuner, with one exception,' 5
and Eckdahl employees assigned to the new Richmond
14 I credit the undisputed testimony of Albertson and Bennett that Al-
bertson was present in a side room at Bennett's request for the sole pur-
pose of furnishing information concerning seniority status under the
Breuner-IBT 70 10-year agreement at the 1976 negotiations between Eck-
dahl, IBT 70, and IBT 315, inasmuch as Breuner had turned over its per-
sonnel records concerning the Emeryville driver/helpers to Signal in
1971. Signal neither returned them nor passed them on to Eckdahl, and
Eckdahl, therefore, was unsure of the combined lengths of service under
Breuner-Signal-Eckdahl of the various driver helpers.
' In 1977 Breuner engaged a private investigator to follow a truck
driven by an Eckdahl driver following its dispatch from the new Rich-
mond store and gave Eckdahl his report concerning the excessive amount
of time the driver and helper on that truck spent at a nearby coffeeshop
prior to making deliveries; on the basis of that report Eckdahl disciplined
the driver and posted a notice setting the amounts of time drivers and
helpers might spend on coffeebreaks during the workday. Breuner neither
suggested nor demanded Eckdahl discipline the driver; Eckdahl made
that decision.
store did not receive any discounts on purchases of
Breuner merchandise, while Breuner employees did.
Both C & H and Eckdahl personnel employed at
Pleasant Hill and the new Richmond Breuner facilities
have been invited to and attended Breuner holiday
events, as have employees of other contractors with
which Breuner does business.
D. The October I Change in Warehousing and
Delivery
In September 1978 Breuner decided to warehouse and
deliver all appliances and rental merchandise warehoused
at and delivered from its Pleasant Hill and new Rich-
mond stores at and from its new Benicia warehouse, ef-
fective October 1, 1978, and so informed Eckdahl, C &
H, and IBT 315. As noted above, Breuner discussed the
change and its impact on the Pleasant Hill and new
Richmond warehousemen, since Breuner was party to a
contract with IBT 315 covering those warehousemen,
but refused to discuss the change and its impact on the
driver/helpers employed by Eckdahl and C & H on the
ground Breuner was not their employer nor party to any
agreement with IBT 315 covering the affected driver/
helpers units at the two stores. The record does not dis-
close whether any discussions ensued between C & H,
Eckdahl, and IBT 315 concerning the impact of the
change on their respective units.
In any event, the change was effected on October 1.
The parties stipulated no driver/helpers were laid off or
terminated at either location, since the effect at Pleasant
Hill was a reduction from 13 full-time driver/helpers in
the unit to 11 full-time driver/helpers and 2 part-time
driver/helpers,' 6 and at Richmond a reduction from an
average work force of 8 to 10 full-time driver/helpers to
7 to 9 full-time driver/helpers, with I man retiring and
another on disability.
E. Analysis and Conclusions
1. The joint employer issue
Over the years the Board in a line of cases' 7 has de-
veloped four criteria for measuring whether or not an
employer contracting for the services of another employ-
er's employees constitutes a joint employer for purposes
of the Act, with Supreme Court approval. 8
'i Holden testified without contradiction (and is credited) that he
found sufficient work with shippers other than Breuner to maintain full
income for the two men reduced to part time by the change.
17 The Pulitzer Publishing Company, 242 NLRB No. 11 (1979); Sun-
Maid Growers of California, 239 NLRB No. 50 (1978); Sinclair & Valen-
tine Co., Inc., a Division of Wheelabrator-Frye. Inc., 238 NLRB No 101
(1978); L. E. Davis d/b/a Holiday Inn of Benton, 237 NLRB 1042 (1978);
Furniture Distribution Center, Inc., 234 NLRB 751 (1978); Transportation
Lease Service, Inc., 232 NLRB 95 (1977); Cabot Corporation and Payne
and Keller of Louisiana, Inc., 223 NLRB 1388 (1976), enfd. 561 F.2d 253
(D.C. Cir. 1977); Teamsters Local Union No. 688, affiliated with Interna-
tional Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of
America (Fair Mercantile Company. Inc.), 211 NLRB 496 (1974); Floyd
Epperson and United Dairy Farmers. Inc., 202 NLRB 23 (1973), affd. 491
F.2d 1390 (6th Cir. 1974); Syufy Enterprises, 220 NLRB 738 (1975); Fidel-
ity Maintenance & Construction Company. Inc., 173 NLRB 1032 (1968).
Is South Prairie Construction Co. v Local o. 627. International Union
of Operating Engineers, 425 U.S. 800 (1976); Radio d Television Broadcast
Continued
THE JOHN BREUNER COMPANY 7
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Those criteria are: () whether the two employers
have common ownership or financial control; (2) wheth-
er they have common management; (3) whether their op-
erations are interrelated; and (4) whether they have and/
or exercise common control over the affected employees'
work, wages, etc.
2. Ownership, financial control, and management
It is undisputed, and I find, Breuner never has had a
financial or other ownership interest in either C & H or
Eckdahl, nor has C & H and Eckdahl ever had any such
interest in Breuner; each company is separately managed
and has no common owner, stockholder, officer, direc-
tor, management official, or supervisor.
3. Interrelationship of operations and employee
control
The General Counsel contends the operations of
Breuner, C & H, and Eckdahl are interrelated inasmuch
as Breuner arranges with its customers the delivery dates
for the merchandise it sells at the Pleasant Hill and new
Richmond stores and thereby controls the delivery work
performed by C & H and Eckdahl's employees. That
contention was advanced and rejected in the Fidelity
Maintenance case cited above, the Board holding normal
incidences flowing from performance of a service con-
tract fail to establish "interrelationship of operations" be-
tween the contracting parties. The point is well taken;
adoption of the General Counsel's contention would
make joint employers of all employers engaged in the
chain involved from point of extraction of raw material
to delivery of finished merchandise.
The General Counsel also relies on terms of the con-
tracts between Breuner, Eckdahl, and C & H, the influ-
ence Breuner exercised on employment conditions of its
former driver/helpers, and aspects of the Breuner-C & H
and Eckdahl day-to-day operations as demonstrating suf-
ficient interrelations between them to make them joint
employers.
It is clear the trucks used by both truckers are painted
the Breuner colors; carry the Breuner logo; are used ex-
clusively on Breuner deliveries; are parked at Breuner's
Pleasant Hill and Richmond facilities when not in use;
are owned by Breuner and leased by C & H in the one
case and owned by Eckdahl in the other; that Eckdahl
assumed Breuner's obligation to purchase the trucks from
Signal on the changeover from Signal to Eckdahl and is
obligated to sell the trucks to Breuner in the event their
contract is terminated; that Eckdahl can replace or add
trucks to the fleet only with Breuner concurrence, that
Breuner reimburses Eckdahl and C & H for all fuel,
maintenance, repair, and other costs (tolls, driver tele-
phone calls, etc.) arising from operation of the trucks
(with one exception: Breuner reimburses C & H for all
painting and repainting costs, while Breuner and Eckdahl
split such cost); that the driver/helper at Richmond wear
Breuner uniforms and the driver/helpers at Pleasant Hill
wear brown shirts, a Breuner color, furnished by
Breuner; that C & H and Eckdahl utilize a Breuner time-
Technicians Local 1264 v. Broadcast Service of .Mobile. Inc., 380 U.S. 225
(1965).
clock, timecard rack, and office space at Breuner's Pleas-
ant Hill and Richmond facilities for their operations, free
of charge; that C & H and Eckdahl employees have at-
tended Breuner parties at Breuner's invitation along with
other Breuner contractors and their employees and Eck-
dahl employees have attended meetings at which
Breuner supervision announced changes in Breuner's op-
erations affecting them; that Eckdahl's dispatcher at
Richmond occasionally handles interstore transfers of
Breuner merchandise and Breuner's receiving clerk at
Pleasant Hill laid out routes and handled repair requests
from C & H drivers; that Eckdahl's dispatcher has as-
signed special deliveries to Eckdahl driver/helpers at
Richmond and on occasion, in their unavailability, made
delivery himself, sometimes in a Breuner-owned van; and
that Breuner's receiving clerk at Pleasant Hill has as-
signed special deliveries to C & H driver/helpers at
Richmond pursuant to a procedure devised by Holden
and has handled interstore transfers of Breuner merchan-
dise. It is essentially true, also, that the Breuner-C & H
and Eckdahl contracts are cost-plus contracts, and in one
case (C & H) the contract is terminable (by either party)
on 90 days' notice and the other on 30 days' notice. It is
likewise evident Breuner has carried out its obligations
under the 10-year Breuner-IBT 70 agreement and sought
and secured protection of its former driver/helpers at
both locations by requiring Eckdahl and C & H to apply
total service of its former driver/helpers for purposes of
layoff, recall, and fringe benefit entitlement.
On the other hand, Eckdahl and C & H are indepen-
dent motor carriers for hire, operating under public regu-
lation and control; Eckdahl derives only a small portion
of its revenues from Breuner; Eckdahl and C & H have
independently negotiated agreements with IBT 315 cov-
ering their driver/helpers assigned to Breuner deliveries
(and other driver/helpers employed by them);' 9 Eckdahl
and C & H have done their own hiring, firing, disciplin-
ing, compensating, laying off, recalling, granting or den-
ying request for time off, processing grievances, etc., of
their driver/helpers assigned to Breuner deliveries, su-
pervised and directed their job performance (by Eck-
dahl's dispatcher, essentially, at Richmond and Holden
himself at Pleasant Hill), etc.; there has been no inter-
change of employees or work between Breuner employ-
ees and C & H and Eckdahl employees (on the contrary,
strict lines of demarcation have been followed), C & H
and Eckdahl employees do not receive discounts on pur-
chases of Breuner merchandise and are subject to person-
nel policies different from those Breuner applies to its
employees.
The Board has held the existence of a cost-plus con-
tract is insufficient to support a joint employer finding
Cabot Corporation, supra), that the providing of certain
services by employees of the employing corporation to
aid the smaller corporation supplying it certain service
personnel on a cost or credit basis does not support a
'" Incorporating therein acceptance of the combined service of
Breuner's former driver/helpers for purposes of layoff, recall, and fringe
benefits; since Breuner reimburses Eckdahl and C & H for costs resulting
from the latter, they have little or no reason to oppose such agreement
and, of course, IBT 315 welcomed such added protection of the affected
driver/helpers.
THE JOHN BREUNER COMPANY 989
joint employer finding (Fidelity Maintenance, supra), and
the fact a retail furniture seller-distributor confers with
the trucker who took over the deliveries, employees, and
union contract formerly performed by the seller-distribu-
tor with his own employees over the number of the
trucker's employees and hours of their employment was
likewise insufficient to establish a joint employer rela-
tionship (Furniture Distribution Center, Inc., supra). In the
truck delivery cases holding there was a joint-employer
relation, there have always been supporting findings that
the retailer or distributor, by its supervisors, directly su-
pervised and controlled the employees of his trucking
contractor in the performance of their work (Pulitzer
Publishing Co., supra; Sinclair & Valentine, supra; Trans-
portation Lease Service, Inc., supra; Teamsters Local 688,
etc., supra; and Floyd Epperson, supra).
While it is clear Breuner used its superior bargaining
power to dictate many favorable terms and conditions in
its contracts with Eckdahl and C & H and utilized that
power, inter alia, to protect its former driver/helpers,
Breuner by its supervisors did not supervise and control
the work performance of Eckdahl and C & H's driver/
helpers or dictate their rates of pay, wages, hours, and
working conditions (other than securing Eckdahl and C
& H acceptance of their combined length of service for
Breuner-Signal-Eckdahl in the one case and Breuner-C &
H service in the other for purposes of layoff, etc.) nor
control Eckdahl and C & H's labor relations.
Neither, in my judgment, are Breuner and Eckdahl
and C & H's operations interrelated other than to the
degree and in the manner necessitated by their business
relations.
4. Summary
I therefore find, in view of Eckdahl and C & H's sepa-
rate and independent ownership, management, direction,
supervision, and control of their driver/helpers and labor
relations with those driver/helpers' collective-bargaining
representative; and interrelated operations with Breuner
only to the degree necessary to coordinate their func-
tions, Breuner was not a joint employer of Eckdahl and
C & H's driver/helpers assigned to deliver Breuner mer-
chandise at Pleasant Hill and Richmond.
In view of the foregoing, I find Breuner did not vio-
late Section 8(a)(1) and (5) of the Act by refusing to bar-
gain with IBT 315 concerning the effect on Eckdahl's
and C & H's driver/helpers employed at Pleasant Hill
and Richmond concerning the effect of Breuner's deci-
sion to transfer the delivery of rentals and appliances
from Richmond and Pleasant Hill to Benicia and find it
unnecessary to pass on the issue of whether such transfer
had such minimal effect on those driver/helpers a reme-
dial order is unwarranted.
CONCLUSIONS OF LAW
1. At all pertinent times Breuner was an employer en-
gaged in commerce in a business affecting commerce,
and IBT 70 and IBT 315 were labor organizations within
the meaning of Section 2(2), (5), (6), and (7) of the Act.
2. At all pertinent times units consisting of all driver/
helpers and the dispatcher employed by Eckdahl to ac-
complish deliveries of Breuner merchandise at Richmond
and all driver/helpers employed by C & H to accomplish
deliveries of Breuner merchandise at Pleasant Hill, ex-
cluding all other employees, were appropriate units for
collective-bargaining purposes within the meaning of
Section 9 of the Act.
3. At all times material, IBT 315 has been the duly se-
lected representative of a majority of Eckdahl's and C &
H's employees within the above-specified units.
4. Breuner never has been a joint employer of Eck-
dahl's and C & H's employees within the above-specified
units.
5. Breuner did not violate Section 8(a)(l) and (5) of
the Act by refusing to bargain with IBT 315 concerning
the effect on Eckdahl's and C & H's employees within
the above-specified units of its decision to transfer the
delivery of appliances and rentals from its Pleasant Hill
and Richmond stores to its Benicia warehouse.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I recommend the issuance of the
following:
ORDER 2 0
The complaint shall be and is dismissed in its entirety.
21 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
THE JOHN BREUNER COMPANY 9