The Transport Co. of Texas

National Labor Relations Board - Board Decisions

Mar 8, 1955

111 N.L.R.B. 884 (N.L.R.B. 1955)

884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the Board has held that responsibility for the rejection of
defective work is not sufficient reason for excluding inspectors from a
production and maintenance unit, we hereby include them.4
The work performed by the janitors allies them closely with the
production and maintenance employees. Accordingly, we include
them in the unit'
The production control laboratory employees set up' formulas and
conduct tests of a technical nature at various stages of the production
process. They have college training in chemistry. Upon the basis of
the entire record, we find that they are technical employees. In accord
with Board practice, they may not be added to the production and
maintenance unit, as one of the parties to this proceeding opposes their
inclusion.6
The purchasing agent orders tooling and changes in tooling as well
as the raw materials and chemicals needed in the Employer's opera-
tions. He maintains records of the quantity of supplies on hand. We
find that he does not have a sufficient community of interest with the
production and maintenance employees to warrant including him in
the proposed unit.'
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for purposes of collective bargaining
within the meaning of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's Los
Angeles, California, plant, including the truckdriver, compounders,
trimmers and pressmen, millmen, and maintenance, mould mainte-
nance, scheduling, extrusion, stock preparation, shipping and receiv-
ing, and tumbler and sand blasting employees, janitors, inspectors,
leadmen and leadwomen, and back-order clerk, but excluding produc-
tion control laboratory employees, purchasing agent, office clericals,
guards, and supervisors 8 as defined in the Act.
[Text of Direction of Election omitted from publication.]
Bell Aircraft Corporation, 96 NLRB 1211 at 1212.
Palmer Manufacturing Company , 103 NLRB 336 at 339.
Plealip Carey Mfq. Company , 107 NLRB No . 26 at 3 ( not reported in printed volumes of
Board Decisions and Orders).
9 Heintz Manufacturing Company, 100 NLRB 1521 at 1523
8 On the basis of the record, we find that foremen are supervisors within the meaning
of the Act
THE TRANSPORT COMPANY OF TEXAS AND TRANSPORT COMPANY, INC.
and TRUCK DRIVERS LOCAL UNION No. 657, 968, 577, 941, 568, 47 &
969, AFL, PETITIONER. Case No. 39-RC--856. March, 8, 1955
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John F. Burst, hearing officer.
111 NLRB No. 147.
THE TRANSPORT COMPANY OF TEXAS, ETC. 885
the hearing officer's ruling made at the hearing are free from preju-
dicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Petitioner seeks to represent in a single unit all over-the-road
truckdrivers of The Transport Company of Texas and Transport
Company, Inc., contending that the two Corporations constitute a
single employer within the meaning of the Act. The Companies as-
sert that each of them is a separate employer, and that because of the
intrastate character of the business of The Transport Company of
Texas, the Board should refuse to assert jurisdiction over that
Company.
The Transport Company of Texas and Transport Company, Inc.,
are separate Texas corporations. Each is engaged in hauling petrole-
um and chemical products. The Transport Company of Texas does its
hauling entirely within the State of Texas . Transport Company,
Inc., is an interstate operator transporting products between Texas
and Oklahoma.
Mr. Edgar Linkenhoger owns 98 percent of the stock of Transport
Company, Inc., and more than 50 percent of the stock of The Trans-
port Company of Texas. He is a director, president, and general
manager of both Corporations. As general manager, Mr . Linken-
hoger is in charge of their overall operations. He purchases all their
equipment.
The main office of the two Corporations is located in the same build-
ing in Corpus Christi, Texas. They use common payroll clerks, bill-
ing clerks, and a single safety engineer. At Houston and Amarillo,
Texas, both Corporations use the same terminals,' terminal managers,
and dispatchers.
The drivers of the two Corporations are usually hired by the ter-
minal managers in accordance with identical rules that are established
by the main office. Applicants for employment in both Corporations
use the same application form. The drivers of both Companies are
paid in the same manner, receive the same benefits, and work under the
same rules and regulations. A driver for one Corporation may drive
for the other when the truck he is assigned to breaks down. Trans-
port Company, Inc., frequently leases its equipment and drivers to
The Transport Company of Texas for an intrastate haul when the
equipment and driver are returning from an interstate run without a
load.
Although the two Corporations have separate properties, separate
trucks, and separate drivers and keep separate accounting records, in
view of the foregoing and the entire record, including the substantial
1 The Transport Company of Texas has terminals at Brownsville, Corpus Christi, El
Paso, Houston, San Antonio, Wichita Falls, and Amarillo, Texas. Ti ansport Company,
Inc., has terminals at Houston and Amarillo , Texas, and Tulsa, Oklahoma.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
identity and centralization of 'ownership and control, the physical
proximity of the main offices, the nature of the Corporations' opera-
tions, and the similarity of working conditions at both Corporations,
we find that The Transport Company of Texas and Transport Com-
pany, Inc., constitute a single employer within the meaning of Section
2 (2) of the Act.2
The record shows that Transport Company, Inc., derives revenue in
excess of $100,000 annually from hauls which cross State lines. As
we have found that the two Corporations constitute a single employer,
we find that the Employer is engaged in commerce within the mean-
ing of the Act and that it will effectuate the policies of the Act to assert
jurisdiction herein.'
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer contends that its drivers are all independent con-
tractors, and that the petition should therefore be dismissed. The
drivers are paid a percentage of the gross revenue produced by the
vehicles to which they are assigned. They have no set hours of work,
and the Employer does not prescribe the routes they are to follow.
However, the record also shows that the Employer owns the trucks,
and in addition to insuring, maintaining, and repairing them, it de-
frays their operating costs. The drivers are paid regardless of whether
the Employer collects from the customers.
When a driver applies for work, he agrees to comply with the Em-
ployer's requirements and regulations. The Employer enforces oper-
ating rules prohibiting drunkenness, carrying passengers, joy riding
and using trucks for personal business. It expects a driver to be avail-
able for work whenever there is a haul for the truck to which he is
assigned or to notify the Employer of his nonavailability. The Em-
ployer also expects the drivers to obey traffic laws, follow manufac-
turer's recommendations for operation of equipment, and conform to
the Markel system of standard safety practices. The Employer's
safety engineer sees to it that the drivers do not violate safety regula-
tions. Runs are given to drivers on a seniority basis, and a driver
may only assign his run to another driver if the latter is approved by
the Employer. In the event of trouble on the road the driver reports
to his terminal manager, and the terminal managers instruct drivers
concerning "back hauls." The drivers receive a 2-week paid vacation
annually plus bonuses and awards for safe driving. The Employer
performs the usual incidents of an employer-employee relationship
2 Maloney- Chambers Lumber Co , 104 NLRB 503 at 504
2 Edelen Transfer and Storage Company Inc . 110 NLRB 1581.
THE TRANSPORT COMPANY OF TEXAS, ETC. 887
such as carrying workmen's compensation, hospitalization and life
insurance, withholding social security and income taxes, and paying
for bonds for the drivers.
On the basis of the foregoing facts, including particularly the con-
trol exercised by the Employer over the drivers, and the fact that the
Employer furnishes, insures and maintains the equipment and per-
forms other incidents of an employer-employee relationship, we con-
clude that the record as a whole supports a conclusion contrary to the
Employer's contention.' Accordingly, we find that the drivers are
employees of the Employer.
As stated previously, the Petitioner seeks to represent in a single
unit all over-the-road truckdrivers employed by both Corporations.
The Employer contends that a single unit is inappropriate. It argues
that separate units for each Corporation should be established. In
view of the centralization of management, ownership, and control of
both Corporations, the nature of the Employer's operations, and the
similarity in duties and working conditions of all the Employer's
drivers, we find a systemwide unit of drivers as requested by the
Petitioner is appropriate.'
Accordingly, we find that all over-the-road truckdrivers employed
in the transportation operations of The Transport Company of Texas
and Transport Company, Inc., Corpus Christi, Texas, excluding
clerical employees, guards, and supervisors as defined in the Act, con-
stitute a unit appropriate for purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
5. At the hearing the Employer objected to further proceedings on
the ground- that it would be improper for the seven petitioning labor
organizations to be certified to represent a single unit of employees.
Board precedent has fully established the propriety of several labor
organizations acting jointly as bargaining representative for a single
group of employees.' As we see no reason to depart from past practice
in such cases, we find no merit in the Employer's objection.
The names of the petitioning labor organizations will appear jointly
on the ballot, and in the event they are successful in the election here-
inafter directed, they will be certified as the bargaining representative
of the employees in the entire appropriate unit. The Employer may
then insist that they bargain jointly for such employees in a single
unit.
[Text of Direction of Election omitted from publication.]
4N. L. R. B. v. Nu-Car Carriers, Inc., 198 F 2d 756 (C A 2), cert denied 342 U. S 919.
s Brown Express , 80 NLRB 753 at 754; Miami Paper Board Mills, Inc. and Simco Waste
Paper, Inc., 109 NLRB 167.
9 Gus Gsllerman Iron & Metal Company, 88 NLRB 1232 at 1233; Welding Shipyards,
Inc., 81 NLR]B 936 at 944 ; General Motors Corporation, 67 NLRB 233 at 235.