The Maxwell Co.

National Labor Relations Board - Board Decisions

May 17, 1967

164 N.L.R.B. 713 (N.L.R.B. 1967)

MAXWELL CO. 713
The Maxwell Company and Truck Drivers
Union Local 413, Affiliated with the
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America. Case 9-CA-3892.
May 17, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 22, 1966, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision.' Thereafter, the Respondent filed
exceptions and a supporting brief. The General
Counsel filed limited exceptions and a brief in
support thereof, and the Charging Party filed a brief
in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the following modifications:I
1. The Trial Examiner found, and we agree, that
the single owner-drivers 3 and the drivers who
operate vehicles owned by others are employees of
the Respondent, rather than independent
contractors or employees of independent
contractors. We therefore also concur in the finding
that the Respondent, by discharging its drivers for
engaging in a strike, violated Section 8(a)(3) and (1)
of the Act.4
Like the Trial Examiner, we find no merit in the
Respondent's argument that the complaint herein
i By errata dated November 25, 1966, and December 9, 1966,
the Trial Examiner ordered that certain routine corrections be
made in his Decision
2 The Respondent's request for oral argument is hereby denied
as, in our opinion, the record, exceptions, and briefs of the parties
adequately set forth the issues and positions of the parties
' The Union's uncontested position as regards the multiple
owners-drivers is that the Board's finding in Indiana Refrigerator
Lines, Inc , 157 NLRB 539, is controlling here, and that these
individuals are supervisors within the meaning of the Act
4 The General Counsel excepted to the apparently inadvertent
exclusion of the name of Lou Wright from the list attached to the
Trial Examiner's Decision as Appendix A As the Trial Examiner
found Wright was a discrimmatee entitled to an offer of
reinstatement and compensation for any loss of pay suffered, we
must be dismissed because the Regional Director, in
1962, administratively dismissed a petition 5 for an
election among these drivers based on his
conclusion they were independent contractors or
employees of independent contractors. In addition to
the reasons set forth by the Trial Examiner in his
footnote 30, it is clear that even though no appeal
was taken from that action, the Board is not
precluded from determining the status of those
drivers at this time, based on a fully litigated
record.6
2. Since we have found the drivers to be
employees, we also adopt the Trial Examiner's
conclusion that the unit sought by the Union,
consisting of all employee drivers operating from
Respondent's Ironton, Ohio, terminal, is
appropriate.? Having concluded that Respondent
engaged in unfair labor practices violative of Section
8(a)(3) and (1), we are further persuaded that such
conduct demonstrates that Respondent had
completely rejected the collective-bargaining
principle and its violations could only have had the
effect of destroying conditions needed for a fair
election. As the Union did represent a majority of the
employees in the appropriate unit, under these
circumstances only a bargaining order can
adequately restore as nearly as possible the situation
which would have existed but for the Respondent's
unfair labor practices. Accordingly, we shall order
Respondent, upon request, to bargain with the Union
in the unit herein found appropriate.8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent,
The Maxwell Company, Ironton, Ohio, its officers,
agents, successors, and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
Add the following name to "Appendix A":
Lou Wright
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges unfair
labor practices not found herein by the Board.
shall amend the Order to add the name of Lou Wright thereto
' Case 9-RC-4958
6 Cement Transport, Inc , 162 NLRB 1261, fn 11, Mock Road
Super Duper, Inc , 156 NLRB 983
r This decision is in accord with a number of recent cases in
which the facts were substantially identical to those herein
Cement Transport, Inc , supra, Indiana Refrigerator Lines, Inc ,
supra, National Freight, Inc , 153 NLRB 1536. Chemical Leaman
Tank Lines, Inc , 146 NLRB 148. Deaton Truck Lines, Inc , 143
NLRB 1372, affd 337 F 2d 697 (C A 5)
" Mock Road Super Duper, Inc , supra at 986-987, and cases
cited therein In the circumstances of this case, we find it
unnecessary to determine whether Respondent' s refusal to
bargain in this unit violated Section 8(a)(5) of the Act , and we shall
dismiss that allegation of the complaint
164 NLRB No. 97
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER 'S DECISION
SIDNEY SHERMAN, Trial Examiner: The charge herein
was served on Respondent on April 8, 1966,1 the complaint
issued on May 31, and hearing was held on September 7
and 8. After the hearing briefs were filed by all parties.
The issues litigated related to alleged discriminatory
discharges and refusal to bargain.
Upon the entire record,2 including my observation of the
witnesses, I adopt the following findings of fact and
conclusions of law:
I. RESPONDENT'S BUSINESS
The Maxwell Company, herein called Respondent, is a
corporation under Ohio law, and is engaged, as a common
carrier, in the transportation of steel and steel products
between points in Ohio, Kentucky, and West Virginia. It
maintains a principal office in Cincinnati, Ohio, and a
dispatching office or terminal at Ironton, Ohio.
Respondent's annual gross revenue exceeds $50,000, and
it annually transports in interstate commerce materials
valued in excess of $500,000.
Respondent is engaged in commerce under the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers Union Local 413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter
called the Union, is a labor organization under the Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to recognize the Union as the
representative of the drivers of equipment used to haul
loads supplied by Respondent?
2. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging certain of such drivers?
3. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to reinstate the drivers after their
abandonment of a strike?
A. Sequence of Events
Respondent has for many years been engaged in the
business of hauling steel, principally for the Armco Steel
Corp., between points in Kentucky, West Virginia, and
Ohio. Respondent's main office is in Cincinnati, Ohio, but
the vehicles used in its operations are dispatched from a
branch office in Ironton, Ohio. All of the tractors and most
of the trailers used in such operations are owned by
individuals who have lease arrangements with Respondent
and who either drive the tractors, themselves, or supply
drivers for the tractors, under circumstances discussed
below.
On April 25, 1962, the Union filed with the Board a
petition for an election among Respondent's
"truckdrivers."3 On May 19, 1962, the Regional Director
dismissed the petition on the basis of an ex parte
' All events herein occurred in 1966 , unless otherwise
specified
2 In its posthearing brief Respondent for the first time urged
that its discharge of the drivers here involved was justified by
certain alleged misconduct, discussed below In view of the
investigation, stating that the unit sought was
inappropriate because it was "composed of persons who
are independent contractors not included within the
definition of employees as defined in Section 2(3) of the
Act." No appeal was taken from this ruling.
Early in 1965, the Union launched a new organizational
campaign among the drivers of the leased equipment,
including the owners-drivers, and on August 9, 1965, the
Union, by letter, notified Respondent that it had been
designated by a majority of its "steel haulers" and
requested recognition. On August 13, Respondent
rejected this request, asserting that the "steel haulers"
were not its employees but independent contractors, and
that there had been no change in Respondent's
relationship to these individuals since the 1962 ruling,
cited above.
On February 27, Respondent rejected the Union's
request for a meeting, and on the same day the Union
called a strike of the drivers. They picketed Respondent's
Ironton office and none of the equipment under lease to
Respondent appeared at its premises to accept hauling
assignments. This situation continued until April 4, when
the picketing was enjoined by a State court. Meanwhile, by
letter dated March 10, Respondent notified all the owners
of leased equipment that it was cancelling its contract with
them effective March 10, because they had not made their
equipment available to Respondent. On March 18, the
Union by letter again requested recognition, and on
March 29, Respondent again refused.
On April 4, the Union requested that Respondent
resume its former dealings with the striking drivers.
Respondent refused. However, beginning on April 15,
Respondent executed new contracts with some of the
owners.
B. Discussion
1. The "employee" status of the drivers
Respondent does not own any tractors and only a few
trailers. It procures from consignors, principally Armco
Steel Corp., hauling jobs, which it assigns to owners of
tractor-trailers who have executed contracts, hereinafter
called "leases," with Respondent. These assignments
are made in the following manner:
At its Ironton office Respondent maintains a board on
which vehicles available on a particular day for hauling
assignments are listed in the order in which they have
reported, and all available loads are first offered to the
operator of the vehicle at the head of the list. After he has
made his selection, the remaining loads are offered to the
next vehicle, and so on down the list.
The owners of the vehicles and the drivers fall into four
categories, as follows:
a. Owners who do not drive, but engage others to drive
for them.
b. Multiple owners-drivers, who own two or more
vehicles, one of which they drive themselves.
c. Single owners-drivers, who own only one vehicle,
which they operate themselves.
d. Drivers who operate vehicles owned by others.
novelty of this contention , I offered the General Counsel and the
Union an opportunity to answer it, which the General Counsel did
in a supplemental brief
' Case 9-RC-4958
MAXWELL CO. 715
The Union claims only the last three categories.
(As herein used, unless otherwise indicated, the term
"owners" will denote all owners, whether or not they
drive, and the term "drivers" will denote all drivers,
whether or not they are also owners.)
The central issue in this proceeding is whether, as the
General Counsel contends, the foregoing drivers are
employees of Respondent or whether, as Respondent
contends, the owners are independent contractors and the
nonowners-drivers are their employees. Resolution of this
question requires review of the terms of the owners' leases
with Respondent and of the practices of the parties
thereunder.
Respondent has used essentially the same form of lease
since at least 1960. It is entitled "Agreement for Hire of
Motor Vehicle Equipment," and provides in part as
follows:
1. While the leased vehicle is "being operated pursuant
to the provisions of this agreement, and while on the
business of Maxwell, Maxwell shall be entitled to exclusive
possession, control, and use" of such vehicle.
2. The owner is required to bear all operating expenses,
to keep the vehicle in good repair, and to comply with all
State and Federal regulations, including immediate
reporting of accidents.
3. The owner agrees that neither he nor his drivers are
employees of Respondent, that he will provide workmen's
compensation and other insurance required by law with
respect to his drivers, and that he will be responsible for
the withholding and payment of all taxes required by
Federal or State law to be withheld with respect to the
owner or his drivers.
4. The owner agrees to carry insurance protecting
himself and his drivers, and vehicles against injury or loss,
and to make no claim against Respondent for such injury
or loss, even when due to Respondent's negligence.
5. The owner agrees to be responsible for the first $250
of (1) any loss or damage with respect to cargo carried on
the owner's vehicles or (2) any property damage or
personal injury inflicted on third persons or on
Respondent as a result of the operation of the owner's
vehicles.
6. Respondent agrees to pay the owner for the use of his
vehicle a specified percentage of the revenue derived by
Respondent from the owner's hauling operations.
7. Respondent agrees to permit the owner to affix to his
vehicle its name and other identification, insofar as
necessary to the performance of the contract.
8. It is agreed that, if the owner's vehicle breaks down
while making a delivery, Respondent may use substitute
equipment to complete the delivery.
9. It is agreed that the lease will "continue in force until
cancelled" by either party, and that Respondent reserves
the right to terminate the lease at any time that the leased
vehicle or its driver is not in compliance with ICC
regulations.
10. Respondent agrees to pay the State Highway Use
Tax.4
It also developed at the hearing that Respondent carries
cargo insurance and public liability insurance with respect
to all vehicles leased to it.
A curious feature of the above lease is that, while
Respondent's president, Maxwell, referred to it at the
hearing as a "permanent" lease, there is no provision
requiring the owner to make his equipment available to
Respondent or requiring Respondent to use such
equipment. All that the lease says in this respect is that
Respondent shall have exclusive control and use of the
equipment while it is being operated under the lease on
Respondent's business, and at the hearing Maxwell agreed
that this meant only that Respondent had such use and
control while the vehicle was making a delivery for
Respondent. Thus, literally read, the lease basically
merely prescribes the conditions and obligations which
will attach if and when the owner sees fit to accept a
hauling assignment from Respondent. However, it appears
from the record that, in practice, the parties did not
execute such a lease unless they contemplated entering
into a continuing relationship, as distinguished from a so-
called "trip lease" arrangement, where the parties were
concerned only with a single transaction (the hauling of a
particular load) and did not have any immediate intention
of engaging in a series of such transactions. And the
record shows that most, if not all, the owners have had a
longstanding relationship with Respondent.5
Nevertheless, absent any provision to that effect in the
lease, it cannot be regarded as imposing any continuing
legal obligation on the parties, and any "cancellation" of
the lease would seem to have no legal significance, as
there was nothing that could be cancelled as a matter of
law. However, as a practical matter, a cancellation by an
owner would operate as a notice to Respondent that the
owner no longer intended to register with Respondent for
loads, and, by the same token, cancellation by Respondent
would constitute notice to the owner that it no longer
intended to offer him any loads. Thus, the "permanency"
of the arrangement depended, not on any legal obligation
imposed by the lease, but rather on the self-interest of the
parties and the mutual advantage they derived therefrom.
This absence of any bilateral commitment militates
against an independent contractor status, which is
normally based on an agreement requiring the
performance of specified services, and prescribing the
conditions under which the contract may be terminated.
The circumstances here are suggestive rather of the less
formal arrangement normally associated with an
employer-employee relationship and which usually
imposes no legal obligation on the employees to perform
any particular services and requires the employer only to
pay for services, if and when performed, and which may be
terminated at will by either party.6
These considerations bring us to the central issue in all
cases of this type-namely, how much control was
reserved by the Respondent not only over the results to be
achieved, but also over the means to be used to achieve
that result.? The result contemplated here was the delivery
of a load to its destination. The means used was the
vehicle and its operator.
As already noted, the lease itself provided that
Respondent was "entitled to exclusive possession, control,
and use" of a vehicle while it was actually engaged in
making a delivery for Respondent, and required the owner
a See "Exhibit B" attached to G C Exh 3 unless terminated for such reasons or that it shall remain in effect
A Nunnery, for example, executed his first lease with for any specified period, but only that it shall continue in effect
Respondent in 1960 "until cancelled "
ti While the contract refers to certain conditions under which it ' E g , Denton Truck Lines, Inc , 143 NLRB 1372, 1377, affd
may be terminated, it does not provide that it shall continue 337 F 2d 697, 699 (C A 5)
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to keep the vehicle in good repair, and to conform in all
respects, including the method of operation of the vehicle,
with State and Federal law, and it is expressly stipulated in
the lease that noncompliance by a driver or vehicle with
ICC regulations will entitle Respondent to cancel the
lease.
Moreover, it is undisputed that, while they took the
initiative in recruiting drivers, the owners were required to
submit to Respondent detailed information regarding a
prospective driver, and to obtain Respondent's approval of
the driver before he could be hired.8 It was also
undisputed that, upon completion of a trip, a driver is
required to submit to Respondent various reports relating
to the trip and the condition of his vehicle,9 that
Respondent makes an annual inspection of the vehicles at
its own expense, and that it pays for the drivers' physical
examinations , which are required by ICC regulations,
whenever it is not convenient for the drivers to arrange for
such examinations themselves.
While the lease does not in terms require an owner to
haul exclusively for Respondent, Maxwell admitted in
effect that, if one of its lessors executed a "permanent"
lease with another carrier, Maxwell would deem it
necessary to terminate Respondent's arrangement with
that lessor.10 Moreover, with regard to so-called trip
leases, which contemplated only a single transaction
between an owner and another carrier, T. Mathes, an
owner-driver, testified that in 1964 Gable threatened to
cancel the witness' lease because he had hauled a load out
of Ironton under a trip lease for another carrier, and,
absent any contradiction of such testimony," I credit it.
Wright testified that he had been told by Gable in June
or July 1965 that Respondent did not allow trip leasing,
and that during the 8 months that he operated vehicles
under lease to Respondent he had worked on only three
trip leases, and then only when no loads were available
from Respondent. Church testified that in 1965 Gable told
him that Respondent forbade trip leasing, Blackstone
testified that Gable indicated to him that Respondent did
not look with favor upon trip leasing , and Blackstone
insisted that he had never engaged therein while operating
vehicles under lease to Respondent-a period of 3 years.
Gable denied generally that he had forbidden any
drivers or owners to engage in trip leasing, or that he had
reprimanded them therefor, except when their name was
"on the board available for a load."12 However, there then
ensued the following colloquy:
Q. Did you discuss trip leasing with Mr. Church?
A. I don't remember.
Q. Telling him he couldn't trip lease under certain
circumstances?
A. I didn't discuss it with him.
In view of the foregoing vacillation, as well as demeanor,
I credit Church's foregoing testimony that Gable forbade
trip leasing. Moreover, in view of the mutually
corroborative nature of such testimony and that of T.
' While Respondent's dispatcher, Gable, denied that he in fact
ever "rejected" any applicant, he admitted that one driver,
Sparkman, was not hired by the owner sponsoring him, after
Gable voiced an objection to him Moreover, there was testimony
by Church and D Adkins that two other drivers, Rowe and
Rigsby, had not been hired by them after Gable refused to
approve them, and A Nunnery testified that he did not hire a
driver because of Respondent's objection to him This testimony
was not specifically contradicted, and I credit it See also the
incident involving Zelker, discussed below
Mathes, Wright, and Blackstone, I credit the two latter
witnesses, despite Gable's general denial.
There was further testimony that, even after a driver
had completed a delivery for Respondent, he was not free
on his return trip to enter into a trip lease with another
carrier until he had first cleared with Respondent to
ascertain that it had no return load ("backhaul") for him.
While Gable admitted requesting that the drivers clear
with Respondent for that purpose, he denied that such
clearance was mandatory. However, Wright testified to an
occasion, late in 1965, when Gable admonished an owner
(D. Adkins) to reprimand or replace his driver
(Shonkwiler), if he persisted in failing to inquire of Gable,
after completing a delivery, about the availability of a
return load. As such testimony was partially corroborated
by Adkins, and Gable disputed only that he had suggested
replacing the driver, I credit Wright. Moreover, as a
witness for Respondent, McAllister testified that he had
made a number of such "backhauls" under trip leases but
always did so only after ascertaining from Gable that
Respondent had no return load for him.
In view of all the foregoing testimony, I find that
Respondent required that the owners haul exclusively for
it, except that it permitted trip leasing where it would not
interfere with their availability to serve Respondent.
Perhaps even more significant than any of the foregoing
items is the undeniable fact that Respondent had
unlimited potential control over the owners' method of
operation by virtue of its aforenoted freedom to terminate
its course of dealing with a particular owner (and his
drivers) at any time and for any reason. This unlimited
right of termination was a powerful weapon in
Respondent's hands, and the record shows that it did not
hesitate to use, or threaten to use, that weapon in order to
secure compliance with its dictates regarding such
matters as the hiring and discharge of drivers by owners,
the expediting of deliveries, hauling for other carriers '13
and even participation in a group health insurance plan.
Thus, T. Mathes testified that within the past year he
had been told by Gable that Respondent would cancel the
lease on the vehicle owned by the witness' father, A.
Mathes, unless the latter's driver, Blackstone, mended his
ways. Gable's version was that he had been asked by the
elder Mathes to contact his son if Blackstone caused any
difficulty, and that the witness had a dim recollection of
having talked to the son about Blackstone. In view of
Gable's vagueness, and the absence of any specific
contradiction of T. Mathes on this point, I credit him and
find that Gable not only called Blackstone's shortcomings
to the son's attention but threatened to cancel his father's
lease unless Blackstone reformed. Blackstone, himself,
testified that in 1964 Gable reprimanded him for delay in
completing a delivery and threatened to lay him off for a
week.
A. Mathes himself testified, without any contradiction,
that in 1963 or 1964, Gable complained of the fact that the
witness' driver had been dilatory in delivering a load, and
'Such reports called for detailed information as to the driver's
itinerary, the reason for each stop and delay, and the nature of any
repairs to the vehicle
"' As noted below , this was the ostensible reason for the
cancellation of the lease of D Adkins on March 8
" Gable merely professed to be unable to recall the incident
'' See discussion above as to Respondent's dispatching
procedure
" See discussion above of the T Mathes-Gable incident
MAXWELL CO. 717
stated that Mathes would either have to deliver the load
himself or replace the driver.
Church testified that on an occasion in 1964, when he
was an owner-driver under contract to Respondent, he was
reprimanded by Gable for a few days' delay in making a
delivery, and warned that if it ever happened again
Church's lease would be cancelled. As there was no
contradiction of this testimony, I credit it.
According to Wright, a driver, he overheard Gable tell
the wife of Warner Willis, an owner, that a certain driver,
Zelker, could not be used on Willis' vehicle, and that if
Respondent ever caught Zelker working for one of the
owners, that owner's lease would be cancelled and he
would be "fired." Gable admitted that he had threatened
to cancel Willis' lease if he used Zelker, and I so find.14
Albert Nunnery, an owner, related without
contradiction, and I find, that about 2 years ago
Respondent threatened to cancel his lease if he continued
to use a driver with a bad accident record; and Maxwell
acknowledged that he would cancel an owner's lease
under such circumstances.
Gable admitted that he threatened to cancel the lease of
Newsom, because of delay by his drivers in loading their
trucks, and acknowledged that Respondent would cancel
the lease of any owner who insisted on using a driver not
approved by Respondent
T. Mathes testified that in 1964 he heard Gable threaten
to cancel Warner Willis' lease unless he participated with
the others in a group health insurance plan. Gable
admitted that Willis indicated to him reluctance to
participate in the plan, but denied any threat to cancel
Willis' lease. On the basis of demeanor, I credit T. Mathes.
As against the foregoing indicia of an employer-
employee relationship, Respondent points to the following:
1. The owners furnish vehicles in which they have a
large capital investment,'' and are required to bear the
cost of operating and maintaining them.
2. An owner is required to bear the cost of collision
insurance on his vehicle and accident insurance for
himself and his driver.
3. The lease recites at several points that the owner is
an independent contractor.
4. The lease imposes on the owner all the obligations of
an employer with respect to his drivers under State and
Federal law relating to withholding of taxes and under
State unemployment insurance and workmen
compensation law.
5. There is no express requirement in the lease that an
owner haul exclusively for Respondent.
6. An owner may refuse loads offered him by
Respondent.
7. A driver receives his compensation, not from
Respondent, but from the owner of the vehicle operated by
the driver, and such owner determines the amount of such
compensation.
8. There are various rulings by State authorities that
the drivers are not employees of Respondent.
Of the foregoing items, little weight can be given to the
characterization in the lease of Respondent's relationship
to the owners and their drivers, as these are merely
statements of legal conclusions. Nor is it material that the
owners have agreed to assume, with regard to the drivers
of their vehicles, certain obligations which are imposed
upon employers by State and Federal laws. Such
assumption is merely another manifestation of the
agreement of the parties that they will consider the owners
to be "independent contractors" and the drivers of their
vehicles to be their "employees," which agreement,
needless to say, is not binding on the Board.16 Nor are the
rulings of State authorities determinative here.
As to the exclusiveness of an owner's services, while the
lease does not provide therefor, it has been found above
that in practice Respondent requires that owners haul
exclusively for it, except where hauling for others will not
interfere with their availability to serve Respondent.
As to the right of an owner to refuse a load which he
does not consider profitable, it was generally agreed that
loads were assigned in order of registration of the vehicles
with Respondent's dispatcher, and that each registrant,
when his turn came, was free to select any load that had
not yet been assigned. However, Blackstone, a driver,
testified that he was not free to refuse a load if he was the
only one available to haul it, and while A. Nunnery and
McAllister testified that they had refused loads and had
never been subjected to any pressure by Respondent to
accept a particular load, they did not specifically
contradict Blackstone's testimony that Respondent would
not brook a refusal of an owner or a driver to haul a load
when no one else was available. In view of this, and as I do
not regard Gable as a candid witness, I do not credit his
assertion that there was no limitation on the right of a
driver to refuse a load, and I find that, as Blackstone
testified, the right to refuse a load was subject to the
availability of another vehicle to haul that load."
However, it is clear that some loads were more
profitable than others, and there is no gainsaying the fact
that even the limited right of selection afforded the owners
gave them an opportunity to increase their return from a
particular trip by selecting the more profitable of the
various loads offered them. Other opportunities to
maximize their profit were afforded by their freedom to
effect economies in operating and maintenance costs, and
an owner always had the choice of hauling a particular
load himself, or paying another to haul for him. Moreover,
if he decided to use a driver, the owner was free to
negotiate with the driver as to what his rate of pay would
be Finally, by obtaining a backhauling assignment from
another carrier instead of returning empty from a trip, an
owner could increase his profit on that trip.
However, virtually all of these opportunities for
maximizing an owner's profit were present in such cases
as Chemical Leaman Tank Lines, Inc., 146 NLRB 148;'"
National Freight, Inc., 153 NLRB 1536: Deaton Truck
Lines, Inc., 143 NLRB 1372, affd. 337 F.2d 697 (C.A. 5);
National Freight, Inc., 146 NLRB 144; and Indiana
Refrigerator Lines, Inc., 157 NLRB 539. Nevertheless, in
those cases, on the basis of the respondents' actual or
potential control over the operations of the owners of
14 This incident occurred after November 1965, but apparently
before February 27, 1966, when, so far as the record shows,
Wright last worked for Respondent
' The record shows that the purchase price of a new tractor-
trailer is about $25,000
" See National Freight, Inc , 153 NLRB 1536, 1538.
17 Respondent adduced documentary evidence purporting to
show that on a particular day four drivers registered for hauling
assignments but none of them took one of the available loads
However, there was no evidence as to what, if any, disciplinary
action Respondent took against such drivers
'"See particularly the facts set forth in Member Leedom's
dissent, at 152 and 153, including those relating to the payment of
the drivers by the owners This factor was also present in
National Freight, inc ,146 NLRB 144,145
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leased equipment the Board found that they were not
independent contractors, and that they and their drivers
were employees of the respondents. As the extent of such
control here present seems, on the whole, comparable to
that found to exist in those cases, and particularly in view
of the fact that Respondent's all-important power to
terminate a lease was, if anything, even broader than that
of any of the carriers involved in the foregoing cases, I
deem such precedents controlling here, and find that the
instant owners are not independent contractors but,
subject to the qualification noted below, are employees of
Respondent, and that their drivers are also such
employees."'
As it sufficiently appears from the record that owners
who use drivers may effectively recommend the hiring of
such drivers, that Respondent has placed no limitation on
their authority to discharge such drivers on their own
initiative, to fix their rate of pay, or to transfer them from
one vehicle to another, and that the owners have
considerable latitude with regard to the direction of
drivers' work, I find that such owners are supervisors, and
may not be included in the unit here sought."'
2. The discharges
As already related, on February 27 the Union
established a picket line at Respondent's Ironton
premises, which remained in effect until April 4. During
that period all lessors and drivers either participated in the
picketing or respected the picket line, and none of them
applied to Respondent for hauling assignments. Moreover,
cargo which was already loaded on or about 20 of the
vehicles had not yet been delivered on March 2, when
Respondent notified all its lessors that it would cancel
their leases effective March 4, "unless proper delivery of
cargo is accomplished before this time and you continue to
perform your obligations under this agreement."
On or about March 2, the striking owners and drivers
returned the loaded cargo to its point of origin.
Subsequently, on March 8, Respondent sent all the
lessors, except D. Adkins, a letter, stating that since
February 27, their equipment had "not been made
available to the Maxwell Co., for hauling under the terms
of [this] agreement," and warning that unless such
equipment was "made available for loading" by March 10,
and they commenced to fulfill their "obligations" under
their agreement by that time, their lease would be
cancelled as of that date. At the same time, D. Adkins was
notified that his lease was being cancelled as of March 4,
because during the week of March 6 he had not made his
equipment available to Respondent and had entered into
an agreement with another carrier covering the same
equipment, thereby violating his agreement with
Respondent.
On March 10, Respondent notified all the lessors
(except D. Adkins) that, since they had not yet made their
equipment available to Respondent, their lease was being
cancelled as of March 10.
At the hearing, Maxwell admitted that he knew that the
owners' vehicles had not been made available to
Respondent because of the strike.
The foregoing letters refer to the "obligations" of the
drivers under their leases to make their equipment
available and may be deemed to imply that the leases were
cancelled because of the breach of such obligation.
Moreover, in the case of D. Adkins, Respondent purported
to cancel his lease on the ground that it had been breached
by his entering into a lease with another carrier. However,
the leases themselves, as already noted, do not in terms
impose any obligation on a driver to serve Respondent,
and at the hearing Maxwell acknowledged that there was
no such contractual obligation. Moreover, with regard to
the case of D. Adkins, whose lease was purportedly
cancelled because he entered into a "permanent" lease
with another carrier, Maxwell conceded that Adkins did
not thereby violate any provision of his lease with
Respondent. Maxwell contended, nevertheless, in effect,
that Respondent could not tolerate such a "permanent"
arrangement by one of its lessors with another carrier,
because it militated against the availability of such lessor
to haul for Respondent.
However, it is not clear why, during the strike, Maxwell
was concerned about the effect of Adkins' lease with the
other carrier on his availability to haul for Respondent.
Maxwell admittedly was aware that D. Adkins was
picketing "pretty regularly" at Respondent's Ironton
office, and it was therefore evident that he had no
intention to haul for Respondent in any event, so long as
the strike continued, and by the same token it was evident
from such picketing by Adkins that whatever arrangement
he may have made with the other carrier,'' he had not
abandoned his interest in resuming relations with
Respondent after the strike was over.
Indeed, at the hearing, apparently recognizing the
implausibility of any construction of Adkins' action as a
severance of his relations with Respondent, Maxwell put
his cancellation of Adkins' lease on another
ground-namely, his concern that Respondent might be
held responsible for any damage to third parties caused by
Adkins' vehicles while operating under the other lease.
Maxwell asserted that under ICC rules Respondent would
be primarily responsible to third parties for damage
caused by one of its lessors. Presumably, this has
reference to the rule of the ICC requiring that, in case a
carrier leases equipment, the lease shall provide for "the
exclusive possession, control, and use of the equipment,
and for the complete assumption of responsiblity in
respect thereto, by the lessee for the duration of said
contract, lease or other arrangement. ""
However, Respondent's leases contain no such
provisions for assumption of responsibility , and it is not
clear how Maxwell or his counsel could reasonably have
thought that the mere fact that Respondent had executed a
lease for Adkins' vehicles, which lease imposed no
continuing obligation on Respondent, would render it
liable to third parties for damage caused by the vehicle
while it was engaged in serving another carrier under a
different lease.
i" Respondent contends that the Board should not give weight
to such control over the drivers as Respondent is required to
exercise under ICC regulations However, in the cases cited
above the Board did not differentiate between such control and
that exercised for other reasons See, e g , National Freight, Inc ,
153 NLRB at 1537, 1538
2" Deaton Truck Lines, Inc , supra, Indiana Refrigerator Lines,
Inc , supra, and cases there cited at fn 5 There is as much reason
here as there was in those cases for finding that the foregoing
authorities are exercised by the owners in the interest of
Respondent
" There was no evidence that such arrangement was legally
binding on Adkins to any greater extent than his arrangement
with Respondent
" Code of Federal Regulations , Title 149, Part 207, par 4(a)(4)
MAXWELL CO.
In any event, Respondent now appears to have
abandoned any contention that any of the leases was
terminated to avoid any possible third-party liability;'' or
because of the breach of any duty imposed by such leases;
for, in its brief, Respondent contends only"" that it was
justified in terminating the leases by the action of the
strikers in holding for several days undelivered cargo with
an alleged total estimated value of $200,000.2' Respondent
cites a decision of the Supreme Court of the State of Ohio
to the effect that the wrongful detention by a common
carrier of goods delivered to it for transportation is a
conversion and Respondent invokes the analogy of a
"sitdown" strike. However, the temporary detention of the
cargo was not cited by Respondent in its March 10 letter
as the reason for the cancellation of the leases, nor is it
clear that Respondent now contends that the leases were
in fact cancelled for that reason. The contention appears
to be rather that such detention constituted "just cause"
for termination, and removed the strikers from the
protection of the Act.
There is no evidence or contention that, apart from the
loss of its share of the revenue from the undelivered cargo,
Respondent suffered any actual damage as a result of the
strikers' failure to complete delivery, and the fact that
Respondent did not see fit to cite such failure as the
reason for terminating the leases, but instead exerted
pressure upon the strikers to abandon the strike and
resume hauling for Respondent, is persuasive that, once
the cargo had been returned to its source, Respondent was
no longer concerned over the temporary detention thereof,
and was, in fact, willing to condone it. Moreover, Maxwell
insisted that, after the abandonment of the strike on
April 4, Respondent resumed its former dealings with
those owners who wished to do so, as soon as hauling
"Maxwell testified that he "understood" that other drivers
besides D Adkins had begun to haul for other carriers, but did not
claim that he terminated for that reason any lease other than
Adkins'
'A At the hearing, Maxwell testified that even before March 10,
a few unidentified owners voluntarily submitted to Respondent
receipts for their equipment, which action normally signifies an
intent to cancel the lease for such equipment However, Maxwell
was unable to explain plausibly why it was necessary for
Respondent to cancel the lease of such owners if, as the foregoing
testimony implies, they had already voluntarily done so,
themselves And. Maxwell admitted that none of the equipment
receipts in his possession bore a date earlier than March 10, and
that he could not determine from his records who the owners were
that he claimed signed receipts before that date Moreover,
Respondent's answer admits that it cancelled the leases of "the
parties with which it had contracts" because of breach thereof,
and no contention is made there or in Respondent's brief that any
of the owners voluntarily terminated their leases In view of this
and in view of the vagueness of Maxwell's foregoing testimony, I
do not deem it to be entitled to any probative weight
'' At the hearing, I sustained an objection to testimony as to the
dollar value of the undelivered cargo, and Respondent made an
offer of proof on that point For the purpose of this discussion I
have assumed the veracity of such offer
2', Respondent's solicitation of the strikers to resume hauling,
and its renewal of its prestrike relations with the owners and
drivers after the termination of the strike constitute such
affirmative evidence of condonation as was deemed by the court
to be lacking in N L B B v Marshall Car Wheel and Foundry Co
of Marshall, Texas, Inc, 218 F 2d 409 (C A 5), cited by
Respondent See Packers Hide Association, Inc , 152 NLRB 655
Moreover, here, unlike the situation in Marshall Car, there was no
evidence that the strike was deliberately timed so as to place
Respondent in maximum jeopardy
21 As they have been found to be supervisors, their discharge
719
assignments became available, and there is no evidence to
the contrary.'''
Furthermore, as Respondent admittedly carried cargo
insurance with respect to all the leased vehicles, it is not
apparent how it could have been placed in jeopardy of
financial loss by the temporary detention of the cargo.
After due consideration of all the foregoing matters, it
appears that the General Counsel has made out a prima
facie case that Respondent terminated the leases, thereby
in effect discharging not only the owners, but also their
drivers, because of their involvement in the strike; that,
even if one considers the various defenses advanced at the
hearing but apparently now abandoned, such defenses are
not meritorious; and that the contention in Respondent's
brief that the strikers forfeited the protection of the Act by
the detention of cargo likewise has no merit in view of
Respondent's condonation of such conduct, if for no other
reason. Accordingly, I find that by, in effect, discharging
its drivers, other than the multiple owners-drivers,'' for
engaging in the strike called by the Union on February 22,
Respondent violated Section 8(a)(3) and (1) of the Act.'"
3. The refusal to bargain
a. The appropriate unit
In view of the findings above as to the employee status
of the owners and drivers, it is concluded that the
following unit is appropriate for purposes of collective
bargaining:
All tractor-trailer drivers operating from
Respondent's Ironton, Ohio, terminal, excluding
dispatchers, guards, professional employees, and
supervisors"as defined in the Act.si'
for engaging in union activities may not be deemed to violate the
Act National Freight, tnc ,154 NLRB 621
211n view of this finding, it is not necessary to consider
whether, as alleged in the complaint, Respondent also violated the
Act by refusing on April 4, to reinstate the strikers A finding on
that issue would not affect the remedy herein
'0 As noted above, all owners who use drivers are excluded as
supervisors
"' Respondent contends that the Board is precluded by the
dismissal in 1962 of the Union's representation petition from now
finding that a unit of drivers is appropriate Respondent points to
the fact that the Union failed to request review of the Regional
Director's action in dismissing the foregoing petition, which was
based on a finding that the drivers were not employees but
independent contractors and Respondent cites the following
from Sec 102 67(f) of the Board's Rules and Regulations, Series 8,
as amended
The parties may, at any time, waive their right to request
review Failure to request review shall preclude such parties
from relitigating, in any related subsequent unfair labor
practice proceeding, any issue which was, or could have
been, raised in the representation proceeding
However, it is clear from the context of the foregoing provision
that it relates only to the failure to request review of a decision by
a Regional Director after a hearing upon a petition, and not of a
dismissal of a petition without a hearing, such as occurred here
That such provision does not apply to summary dismissals is
underscored by Sec 101 18(c) of the Board's Statements of
Procedure, which provides, in effect, that, when a Regional
Director dismisses a petition without a hearing because of
inappropriateness of the unit sought, the petitioner may appeal to
the Board as a matter of right It is clear therefore that the
"request for review" procedure, which contemplates only
discretionary review by the Board, was not intended to apply to
summary dismissals, and that any limitations placed by Sec
102 67(f) of the Board's Rules upon subsequent litigation by
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. The Union's majority status
(1) On February 27
The General Counsel contends, and it is found below,
that the Union made a proper bargaining request on
February 27, when it called the strike. Respondent does
not dispute that the Union at that time had been
designated as their representative by a majority of the
drivers in the bargaining unit herein found appropriate.
In any event, the record shows that of the 24 drivers in
that unit on February 27,31 the Union had been designated
by 13 before the inception of the strike on that date. '12 On
February 28, two more drivers applied for union
membership." W. Ledford's application for union
membership is dated February 27 and, as there is no
preponderating evidence that such application was made
before the inception of the strike,14 and no evidence of any
prior designation of the Union by him, he will not be
counted as a prestrike, but only as a poststrike, adherent
of the Union.
As it has been found that 13 of the 24 drivers had
designated the Union by February 27, it is found that on
that date the Union represented a majority of the
employees in the appropriate bargaining unit.
(2) On March 18
Concededly, the Union made a bargaining request on
March 18, which was rejected on March 29. By March 18,
all the drivers had been discharged and none of them was
rehired before April 15. However, as it has been found that
such discharges were unlawful, the drivers remained
"employees" of Respondent within the meaning of the
Act, and it is found that on March 18 and 29, the Union
represented all 13 prestrike adherents plus Rusk, Strugill,
and W. Ledford, a total of 16 out of 24 then in the unit.35
parties who fail to request review are not applicable to parties who
fail to exercise their right to appeal (Significantly, the Board's
Rules are silent as to any like limitation on parties who fail to
exercise the latter right )
Respondent also cites holdings that the Board will not permit
relitigation in unfair labor practice cases of objections to an
election or challenges to ballots which were resolved in a prior
representation case , even though the aggrieved party was there
denied a hearing on such objections or challenges However, such
hearing is denied in representation cases only where the
aggrieved party fails to show that there is any issue of fact which
warrants a hearing (0 K Van and Storage, Inc , 127 NLRB 1537)
and the policy underlying the foregoing treatment of objections
and challenges is to prevent undue protraction of litigation over
the validity of an election by requiring that all issues of fact
pertaining thereto be raised in the representation case By thus
expediting the determination of a union 's representative status,
such policy promotes the Act's paramount purpose of
"encouraging the practice and procedure of collective
bargaining " (See Sec 1 of the Act ) It is not clear what policy of
the Act would be served by foreclosing the Board or its agents
from reconsidering the propriety of an administrative
determination , which, as here, in effect deprived a group of
individuals of the protection of the Act
(As the Regional Director's 1962 action was not based on a
hearing doctrines of res judicata and estoppel by judgment are
clearly inapplicable )
i' See TX Exh 1 I have excluded from this enumeration A
Mathes, H Howard, J Tedford, and W Willis, as they were
multiple owners - drivers and hence supervisors The General
Counsel would add Boggs, who drove for A Nunnery for about a
week immediately preceding the strike However, on the basis of
It is therefore concluded both on February 27 and
March 18, the Union represented a majority in the
appropriate unit.
c. The demand and refusal
(1) Background
In the original petition filed by the Union in 1962, the
unit sought was defined as "all truck drivers, excluding
office clerical, supervisory and professional employees,"
guards, watchmen , etc. After dismissal of that petition, the
Union made no further demand until, by letter dated
August 9, 1965, Mann, the Union's president, requested
recognition of the Union as the representative of
Respondent's "steel haulers." On August 13, 1965,
Respondent rejected this request, citing the ruling in the
1962 representation case that Respondent's drivers were
independent contractors, and asserting that there had
since then been no change in Respondent's relationship to
its drivers. The General Counsel does not allege that the
foregoing refusal violated the Act (presumably, because it
antedated the applicable period of limitations) and it is
here considered only insofar as it sheds light on later
events.
(2) The request of February 27 and March 18
There were no further contacts between Respondent
and the Union until February 27, when it is agreed that
Union Agent Ward telephoned Maxwell from Ironton and
proposed negotiations. The exact terms of this proposal
are in dispute. According to Ward, he told Maxwell that
the Union represented a majority of "his people" and
requested recognition, and, when this request was
rejected, Ward told Maxwell that "he was officially on
strike," and the drivers promptly began to picket. Ward
Nunnery's credible testimony, I find that while he had in the past
been a regular driver for Nunnery, Boggs ceased driving for him
about January 21, and that about a week before the strike
Nunnery rehired Boggs but only as a replacement for Baylous,
pending his recovery from surgery Accordingly, I find that Boggs
was at the time a temporary employee and not eligible (As
Baylous was on February 27 on sick leave, he will be considered
as in the unit on that date )
" = C Adkins, T Mathes, Wright, Shonkwiler, McAllister, J
Willis, Church, Blair, Porter, Blackstone, Clark, Scalf, and G
Howard Although G Howard did not sign a union membership
application until February 27, and Scalf did not sign one until
February 28, 1 count them as prestrike adherents of the Union,
because they had signed authorization cards for the Union in
March and May 1965, respectively, and, in view of this, coupled
with their subsequent execution of membership applications, it is
inferred that their interest in representation by the Union
continued unabated up to February 27
" Rusk and Sturgill
" While John Ledford testified that he saw W Ledford sign his
application 2 weeks before the strike, I do not credit such
testimony in view of the witness ' vagueness and the conflict
between his testimony and the date on the application (W
Ledford did not testify )
" So far as the record shows, Respondent did not during the
strike make any effort to replace the strikers
In view of the above finding as to the Union's majority status
there is no need to consider whether , in view of Ward's
uncontradicted testimony that about 24 drivers participated in the
picketing , it should be found that the Union had an even greater
majority during the strike
MAXWELL CO. 721
added that Maxwell did not question the Union's majority
status and gave no reason for his refusal of recognition,
and that about 24 drivers participated in the picketing,
which continued until enjoined by a State court on April 4.
Maxwell's version was that he was told by Ward only that
"he had our men out on the street and that he wanted to
talk" to Maxwell about the matter; and that Maxwell told
Ward that he was in no position to talk at that time, that, in
any event, the Union's president, Mann, "was familiar
with the situation regarding our drivers," and that Ward
should contact Mann.
At the hearing, Maxwell explained his refusal to enter
into any discussion with Ward on the ground (1) that he did
not know who Ward wag, all Maxwell's prior "discussions"
having been with Mann, and (2) that the unit had, in any
event, been held to be inappropriate.
It is evident from the foregoing that, even if one
credits Maxwell that there was no specific request for
bargaining about a contract for the drivers, he
nevertheless inferred that that was the purpose of Ward's
call and refused to discuss the matter further, at least in
part in reliance on the 1962 ruling that the drivers were
independent contractors, but referred Ward to Mann with
whom Respondent had had the correspondence in August
1965, described above, regarding recognition of the Union.
Accordingly, contrary to Respondent's contention, I find
that, even on the basis of Maxwell's version, there was a
proper request for bargaining.36 Whether Maxwell was
justified in rejecting such request because of a doubt
about Ward's connection with the Union or about the
appropriateness of the unit raises a separate issue, which
will be considered below.
In any event, there is no dispute that by letter of
March 18, the Union unequivocally requested recognition
as the collective-bargaining agent of all "truck-drivers
employed by" Respondent, and that this request was
rejected on March 29, on the ground that the drivers
referred to in the Union's letter were not employees but
independent contractors.
Respondent contends, nevertheless, that neither the
demand of February 27 nor that of March 18 constituted a
proper request for recognition because the bargaining unit
contemplated by both demands included multiple owners-
drivers (four in number)37 who, as found above, were
supervisors. In Deaton Truck Lines, Inc., while finding that
the nonowners-drivers and single owners-drivers there
involved were employees of the respondent, the Board
found that the multiple owners-drivers were supervisors.
The Board there stated:38
Inasmuch as the Union insisted upon their inclusion
in the unit , as Respondent is under no duty to bargain
for a unit including supervisors, and as such
insistence was one of the obstacles to the conclusion
of an agreement, we find that Respondent has not
violated Section 8(a)(5) by its refusal to bargain for the
unit insisted upon by the Union.8
8 Cf Great Western Broadcasting Corporation d/b/a KXTV, 139
NLRB 93.
In the Great Western case cited by the Board in the
foregoing extract, the parties bargained at length for a
contract, and on the basis of a review of the Respondent's
bargaining and other conduct, the Board found an
unlawful refusal to bargain, notwithstanding that the
Union specifically insisted throughout the negotiations
upon the inclusion of supervisors in the bargaining unit. In
rejecting the contention that the inappropriateness of the
unit for which the Union was seeking to bargain precluded
a violation finding, the Board relied on the view that the
Union's insistence upon representing the supervisors had
not constituted an obstacle to reaching an agreement.39
Here, it is likewise clear that the inclusion of the
multiple owners-drivers was not what prevented
recognition of the Union. The Union at no time expressly
requested that they be included in the unit,40 and
Respondent at no time indicated any objection to the
Union's demand for recognition on the ground of their
inclusion. Respondent's position throughout was rather
that the unit was inappropriate for a more basic
reason-namely, that none of the individuals whom the
Union sought to represent was an employee of
Respondent. Accordingly, I do not deem the Union's
demands of February 27 or March 18 to be vitiated by the
fact that the Union may have in fact desired to include the
multiple owners-drivers in the unit,41 and it is found that a
proper request for recognition was made both on
February 27 and March 18.
d. Respondent's good faith
Respondent contends that, even if it be found to have
refused to bargain with respect to an appropriate unit,
such refusal was justified by Respondent's good-faith
reliance on the Regional Director's unappealed ruling in
1962 that the unit then sought was inappropriate. In this
connection, Respondent asserts, and I find, that the unit
which the Union now claims to represent is identical with
that involved in the 1962 case, and that since then there
has been no material change in the nature of Respondent's
dealings with the drivers. 42
While conceding that a bona fide but erroneous belief
that a unit is inappropriate does not normally excuse a
" See Barney's Supercenter, Inc , 128 NLRB 1325, enfd 296
F 2d 91 (C A 3). Benevento Sand & Gravel Co , 131 NLRB 358,
367-368, enfd 316 F 2d 224 (C A 1)
See fn 31 above
" 143 NLRB at 1378
In its decision, the Board found that, although the
respondent initially proposed the exclusion of the supervisors, it
later agreed to their inclusion upon certain conditions, and
indicated no further concern over this issue
It is evident from the manner in which Great Western is cited in
Denton that the Board did not regard the two cases as in conflict
in accord with Great Western are American Rubber Products
Corp , 106 NLRB 73. Dan River Mills, Incorporated, Alabama
Division , Inc, 121 NLRB 645, Sakrete of Northern California
Inc v N L R B , 332 F.2d 902 (C A. 9), cert. denied 379 U S.
961, enfg 140 NLRB 765 Those cases hold that refusal of
recognition may not be justified by the inclusion of guards or
supervisors in a proposed plant unit, where recognition was in fact
refused on other grounds
411 When a union requests recognition in a particular unit, it is
not required to specify all the statutory or other traditional
exclusions from such unit Thus, a request for recognition as
representative of production and maintenance employees is
ordinarily sufficient, even though it does not specify the exclusion
of supervisors, guards, office clerks, professional employees, etc
41 At the hearing the Union disclaimed any intention to include
any owner who did not drive, and there is no contention that the
Union's various demands were construed by Respondent to apply
to them
42 The General Counsel presented no cogent evidence of any
such change
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to bargain,43 Respondent contends that this rule
should not be applied where, as here, a Regional Director
of the Board had already dismissed a representation
petition on the ground that the very unit in issue was
inappropriate.
The precise question thus presented seems to be one of
first impression.44 However, there is no need to resolve
that question, as I am convinced from a review of the
totality of Respondent's conduct that, in refusing to
recognize the Union, Respondent was motivated at least in
part by a rejection of the principle of collective bargaining.
While it is true that in 1962 the Regional Director
administratively found that the drivers were not
employees of Respondent, the Board, itself, in the line of
cases cited above, beginning with Deaton Truck Lines,
supra, which was decided in August 1963, reached a
contrary result on comparable facts. Although such cases
involved other employers, they should have sufficed to put
Respondent on notice that it could no longer safely rely on
the validity of the Regional Director's ex parte ruling in the
1962 representation case. Moreover, even if Respondent
was justified in regarding the 1962 ruling as authoritative
until reversed, such ruling was in effect reversed by the
Regional Director himself, when, after another ex parte
investigation, he issued the instant complaint, wherein the
drivers are alleged to be employees. Yet, preferring to rely
on the Regional Director's earlier, albeit repudiated,
position, Respondent has persisted in its refusal to
bargain.
Even more significant is the fact that, when the owners
refused to abandon the strike, Respondent terminated
their leases, thereby in effect discharging them and, in the
case of multiple owners, their drivers. Such discharges
have already been found to have been unlawful because in
reprisal for the drivers' strike activity. In addition, the
discrediting of the Union, the undermining of the drivers'
allegiance to the Union, and indeed the summary
elimination of its majority status were foreseeable effects,
and, inferentially, objects, of such mass discharge. Indeed,
it is not clear what other immediate advantage
Respondent could have hoped to derive from such action.
There is no evidence that Respondent was contemplating
entering into new leases. On the contrary, the record
shows that Respondent suspended all operations during
the strike, and there is no evidence that any effort was
made to replace the strikers. Moreover, the old leases
constituted no legal obstacle to the execution of any new
leases, since, as Maxwell himself acknowledged, the old
leases imposed no continuing legal obligation on
Respondent.
It is thus clear that Respondent was not merely content
to rely on its asserted good-faith doubt of the
appropriateness of the unit but took action calculated to
destroy the Union's majority status and nullify any effort
by the Union to obtain a Board certification through an
election. Such conduct is persuasive that, whatever other
considerations may have contributed thereto,
Respondent's refusal to bargain with the Union was
motivated basically by an antipathy to collective
bargaining, and by the hope that, by postponing the issue,
Respondent would be afforded an opportunity to
undermine the drivers' adherence to the Union.45
It is accordingly found that Respondent has, since
February 27, refused to recognize the Union, and that
Respondent thereby violated Section 8(a)(5) and (1) of the
Act.46
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation 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 commerce.
V. THE REMEDY
It having been found that the Respondent violated
Section 8(a)(1), (3), and (5) of the Act, it will be
recommended that it be required to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It has been found that Respondent refused to recognize
and bargain with the Union, which represented a majority
of the employees in an appropriate unit. Accordingly, I
shall recommend that the Respondent be ordered to
bargain, upon request, with the Union as the exclusive
representative of the employees in the appropriate unit.
Having also found that on March 10, Respondent
unlawfully discharged certain of its drivers,47 I shall
recommend that, to the extent it has not already done so,
Respondent be required to offer all of them, except
Boggs'48 reinstatement to their former or substantially
equivalent positions without impairment of seniority or
other rights and privileges. I shall also recommend that
" Owego Street Supermarkets, Inc , 159 NLRB 1735. Southern
Paint Company, Inc , 156 NLRB 22, and cases there cited. Tom
Thumb Stores, Inc , 123 NLRB 833 See also H & W Construction
Company, Inc , 161 NLRB 852, and cases there cited
" Cf West Texas Utilities Company, Inc , 85 NLRB 1396,
1398-99, where the Board held that the respondent's refusal to
bargain was not excused by its reliance on an erroneous
interpretation by the Boards General Counsel of relevant
statutory provisions as relieving the respondent of any duty to
bargain with the union involved
4' Keystone Floors, Inc d/b/a Keystone Universal Carpet
Company, 130 NLRB 4, enfd 306 F 2d 560 (C A 3) (refusal to
bargain with union for salesmen on ground that they were
independent contractors, accompanied by discharge of salesmen)
JoyStlk Mills, Inc , 85 NLRB 1263, enfd as modified 185 F 2d 732
(C A D C ), cert denied 341 U S 914
°i There is no need to dwell on Maxwell' s apparent claim that
he rejected Ward's request for negotiations in part on the ground
that Maxwell had had no prior dealings with Ward Had Maxwell
been genuinely concerned about Ward's credentials, it would
have been a simple matter for him to ask Ward to present
evidence of his connection with the Union cr to inquire of the
Union about Ward
Even if it be assumed that Respondent was justified in refusing
to bargain because of the 1962 ruling, it would seem appropriate
to order, as a remedy for Respondent's discriminatory discharge
of all of the Union adherents, that it bargain with the Union, upon
request See BetterVal-UStore of Mansfield, Inc , 161 NLRB 762
4' C Adkins, Blackstone, Blair, Boggs, Church, Clark, G
Howard, W Ledford, T Mathes, McAllister, Porter, Rusk,
Shonkwiler,J Willis, and Wright
4M As found above, Boggs was a temporary replacement for
Baylous, pending his recovery from surgery, and the record shows
that Baylous was able to return to work on March 11 Accordingly,
it is found that Boggs' employment would have ended on that
date , in any event
MAXWELL CO. 723
Respondent be required to make them whole for any loss
of earnings suffered by reason of the discrimination
against them, by payment to each of a sum of money equal
to that which they normally would have earned as wages
from April 4, to the date of any past or future offer of
reinstatement, less their net earnings during such period.
Backpay shall be computed in accordance with the
formula stated in F. W. Woolworth Company, 90 NLRB
289; interest shall be added to backpay at the rate of 6
percent per annum. Isis Plumbing & Heating Co., 138
NLRB 716.
In view of the Respondent's unfair labor practices,
particularly the discriminatory conduct found above, there
exists a threat of future violations, which warrants a broad
cease-and-desist order.
CONCLUSIONS OF LAW
1. All tractor-trailer drivers operating from
Respondent's Ironton, Ohio, terminal, excluding
dispatchers, 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.
2. At all times material the Union has been and still is
the exclusive representative of all the employees in the
aforesaid unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
3. By refusing since February 27, 1966, to recognize
and bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
4. By discharging its drivers for engaging in a strike,
Respondent has violated Section 8(a)(3) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law, it is recommended
that Respondent, The Maxwell Company, Ironton, Ohio
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Truck
Drivers Union Local 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of
all tractor-trailer drivers operating out of its Ironton, Ohio,
terminal , excluding dispatchers, professional employees,
guards, and supervisors as defined in the Act.
(b) Discouraging membership in Truck Drivers Union
Local 413, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or in any other labor organization, by
discriminating against employees in regard to their hire or
tenure of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form, join, or assist the above-named
Union, or any other labor organization and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent
permitted by the provisos in Section 8(a)(3) of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request recognize and bargain collectively in
good faith with Truck Drivers Union Local 413, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of all tractor-trailer drivers
operating out of its Ironton, Ohio, terminal, excluding
dispatchers, professional employees, guards, and
supervisors as defined in the Act, with respect to rates of
pay, wages, hours of employment, or other conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(b) To the extent it has not already done so, offer to the
employees named in Appendix A attached hereto, except
Robert Boggs, immediate reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and notify
them, if they are presently serving in the Armed Forces of
the United States, of their right to full reinstatement upon
application, in accordance with the Selective Service Act
and Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Make whole the said employees, including Boggs, in
the manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy," for any loss of pay they
may have suffered by reason of the Respondent's
discrimination against them.
(d) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Recommended Order.
(e) Post at its terminal in Ironton , Ohio, copies of the
attached notice marked "Appendix B."49 Copies of said
notice, to be furnished by the Regional Director for Region
9, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 9 in writing,
within 20 days from the date of receipt of this Decision,
what steps Respondent has taken to comply herewith.so
"' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
"' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
298-668 0-69-47
724
Cletis Adkins
Ralph Blackstone
Billie Blair
Robert Boggs
John Church
Philip Clark
Gary Howard
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
William Ledford
Thomas Mathes
Paul McAllister
Floyd Porter
James Rusk
Walter Shonkwiler
John Willis
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL bargain in good faith, upon request, with
Truck Drivers Union Local 413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of all employees in the
bargaining unit described below in respect to rates of
pay, wages, hours of employment, or other conditions
of employment , and, if an understanding is reached,
embody it in a signed agreement . The bargaining unit
is:
All tractor-trailer drivers operating from our
Ironton , Ohio, terminal , excluding dispatchers,
professional employees, guards, and supervisors
as defined in the Act.
WE WILL NOT discourage membership in Truck
Drivers Union Loca1413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any
other labor organization , by discriminating against
employees in regard to their hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization , to form, join , or assist
Truck Drivers Union Local 413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization , to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities, except to the
extent permitted by the provisos in Section 8(a)(3) of
the Act.
WE WILL offer the employees listed in Appendix A
of this Decision , except Robert Boggs , reinstatement
to their former or substantially equivalent positions,
to the extent that we have not already done so, and we
will make all of them, including Boggs, whole for any
loss of pay suffered by reason of the discrimination
against them.
All of our employees are free to become or remain, or
refrain from becoming or remaining, members of Truck
Drivers Union Local 413, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , or any other labor organization.
THE MAXWELL COMPANY
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, Room 2407
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3663.