Tri-State Transport Corporation

National Labor Relations Board - Board Decisions

Sep 29, 1979

245 N.L.R.B. 1030 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tri-State Transport Corporation and Fraternal Asso-
ciation of Special Haulers, Local 100. Case 6-CA-
11879
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 28, 1979, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a motion to strike portions of Respondent's excep-
tions and brief on exceptions to the Administrative
Law Judge's Decision and memorandum to the
Board in opposition to Respondent'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, findings,2 and
conclusions 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 Rela-
I We find it unnecessary to pass on the General Counsel's motion to strike
portions of Respondent's exceptions and brief, inasmuch as our decision
herein does not rely on any of the disputed portions thereof.
In its brief Respondent argues, inter alia, that it did not receive a fair
hearing, and therefore the record should be reopened for rehearing in order
to establish a fair and complete record. The basis of Respondent's contention
is that although Respondent had retained counsel Respondent appeared at
the hearing represented solely by its president and general manager, Jean
Witsberger, who is not an attorney. However. Respondent offers no reason
why it appeared at the hearing without counsel, nor does it offer any evi-
dence that Witsberger requested a delay in the hearing or that she protested
proceeding without counsel. We have carefully reviewed the record in light
of Respondent's contention and find that inasmuch as Witsberger was ac-
corded great leeway in presenting Respondent's case and in cross-examining
witnesses, its contention is without merit. See Boro Burglar Alarm Company,
234 NLRB 389 (1978); Tred-Air of California, Inc., 193 NLRB 672 (1971);
Air Transport Equipment, Inc., 190 NLRB 377 (1971).
1 The Administrative Law Judge inadvertently stated that only once did
Witsberger contact Coss in order to reach Cunningham, and on that occa-
sion Cunningham made the Jamesburg, New Jersey, run on the advice of
Cosu. The record shows that Witsberger phoned Coss on several occasions
attempting to reach Cunningham for assignments. Further Coss discussed
Cunningham's unwillingness to make the Jamesburg, New Jersey, run on the
advice of Cos. The record shows that Witsberger phoned Coss on several
occasions attempting to reach Cunningham for assignments. Further, Coss
discussed Cunningham's unwillingness to make the Jamesburg, New Jersey,
run with Witsberger and not Cunningham. Notwithstanding these inadver-
tent misstatements, the record supports the Administrative Law Judge's con-
clusion that Cunningham was an employee of Tri-State Transport Corpora-
tion.
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Tri-State Transport
Corporation, Wheeling, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMIN I OF I tE CASE
MORrON D. FRIEDMAN, Administrative Law Judge: This
case was heard in Wheeling, West Virginia, on April 2,
1979, upon a complaint issued on January 26, 1979, which
complaint is based upon a charge filed on December 14.
1978, by Fraternal Association of Special Haulers, Local
100, herein called the Charging Party or the Union. The
complaint alleges, in substance, that Respondent, Tri-State
Transport Corporation, discharged five of its employees,
among them Henry Cunningham. because the employees
engaged in protected concerted activities. Before the hear-
ing herein opened the cases of four of the five alleged dis-
chargees were settled, but Respondent defends as to Henry
Cunningham on the ground that Cunningham is not and
has not been an employee of Respondent. The discharge for
the reason alleged in the complaint is admitted by Respon-
dent, leaving for adjudication as the only issue whether
Cunningham is or was an employee within the meaning of
Section 2(3) of the National Labor Relations Act, herein
called "the Act."
At the hearing all parties were given full opportunity to
be heard, to present evidence, and to make oral argument.
Briefs have not been filed by any party, and the time for
filing has expired.
Upon the entire record in the case and upon my observa-
tion of the witnesses I make the following:
FINDINGS OF FA(CI
I. THE BUSINESS OF RESPONDENT
Respondent, a West Virginia corporation with its place
of business in Wheeling, West Virginia, is engaged in the
interstate transportation of goods and materials. During the
year immediately preceding the issuance of the complaint
herein, a representative period, Respondent derived gross
revenues in excess of $50,000 from the interstate transporta-
tion of goods and materials for a division of Wheeling-Pitts-
burgh Steel Corporation and received in excess of $50,000
for services performed for enterprises engaged in interstate
commerce.
It is admitted and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
245 NLRB No. 132
1030
TRI-STATE TRANSPORT CORPORATION
Ill. THE UNFAIR LABOR PRACTICES
A. The Facts
As related above, Respondent stipulated at the hearing
that all the allegations of the complaint including the cir-
cumstances and reasons for the alleged discharge of Cun-
ningham are admitted provided it is found that Cunning-
ham is an employee of Respondent as defined in the Act.
In June 1978 Respondent was in need of additional haul-
ing equipment and a driver for such equipment. As a result
Henry Cunningham, whose relationship with Joseph D.
Coss, an equipment lessor, is not clarified in the record' but
who possessed a power of attorney from Coss (who at that
time was confined to a hospital), and Jean Ann Witsberger,
Respondent's president and general manager, entered in to
a leasing agreement on June 10, 1978,2 for the rental to
Respondent of a White tractor (truck) and Fruehauf trailer
belonging to Coss. The lease provided, among other things,
including provisions for necessary interstate commerce li-
censing and state licensing, that the rental fee would be
"75% of gross revenue, including all driver wages and
fringes which are the responsibility of the lessor" (Coss).
On the same day, June 10, 1978, Cunningham, whom the
parties presumably expected to drive the leased tractor and
trailer, was required by Respondent to fill out and sign an
employment application. The application form executed by
Cunningham was exactly the same as was required by Re-
spondent of all applicants for truckdriver positions. Accord-
ing to Witsberger, this was merely to satisfy the require-
ments of the Interstate Commerce Commission and not
because Cunningham was to be an employee of Respon-
dent.
However, before he was permitted to drive the leased
truck Cunningham was required by Respondent to pass a
truckdriving test given by Howard Witsberger, president
Witsberger's husband. Additionally, Witsberger told Cun-
ningham and at a later date Coss, who drove for Respon-
dent a short time, that she, not Coss, was the boss, and that
Cunningham was to follow only her instructions. She also
verbally gave to Cunningham what both Cunningham and
Coss referred to as the drivers' "ten commandments."
These included no unauthorized passengers, no hitchhikers,
no female passengers except the driver's wife (and then only
with Witsberger's special permission), no moonlighting
(taking other work), no drinking of alcoholic beverages, no
loafing in the shop, and other additional rules of conduct.
Cunningham was told that the penalty for infraction of any
of the foregoing rules would be dismissal.
Additionally, Cunningham was not permitted to use the
truck and trailer for any backhauling on his own. He was
required to call at Respondent's expense at the end of a
delivery to find out where he was to go next, and if Respon-
dent had no pickup to assign him at that time he was to
return empty. This could effect his earnings, because he was
paid 25 percent of Coss' share of 75 percent for the gross
received by Respondent for the hauling. As heretofore
In testifying Coss and Cunningham denied, without contradictory testi-
mony, that Cunningham was a partner of Coas. Their denials are credited.
2 The lease, received in evidence, is undated. However, all parties agreed
as to the date of the agreement.
noted, this 25 percent payment and all other benefits re-
ceived by Cunningham were Coss' responsibility under the
lease, although at least some of the time Respondent made
the check for the 75 percent payable directly to Cunning-
ham
When Cunningham did not know what route to follow to
reach his delivery destination he was told the route to be
used by Respondent. President Witsberger did all of the
dispatching.
Cunningham, like all of Respondent's drivers, was re-
quired to maintain a log of all of his trips, and if the logs
were not turned into Respondent at the end of each trip he,
and incidently Coss, was not paid for that trip that week,
but payment was deferred to a later date.
At one time in October 1978 Witsberger suspected Cun-
ningham of having had a female passenger in the tractor on
a delivery. Witsberger did not discharge him then but told
Cunningham that if she ever caught him doing such a thing
he would be discharged.
Nor did Cunningham ever completely refuse to make a
delivery for fear of discharge. At one time he at first refused
to make a run to Jamesburg, New Jersey. This was because
he had made the run before and knew that because of the
mountainous route he would make no money on the run.
But when he refused Witsberger became angry, and as a
result Cunningham called Coss for advice. The latter told
Cunningham that he had better make the run. As a result of
this advice Cunningham made the run. He testified that he
decided to lose money rather than risk being discharged.'
In the early part of November 1978 Respondent's driv-
ers, who drove Respondent's own trucks, struck to protest
alleged unsafe conditions of the trucks. On November 9
Witsberger called Cunningham to her office and asked Cun-
ningham why the latter did not call in for a run. Cunning-
ham explained that Respondent's drivers were on strike,
and Cunningham would not cross the picket line. Cunning-
ham thereafter joined the other drivers on the picket line.
He never drove for Respondent again.
On November 9 Respondent sent Coss a letter cancelling
the leases for Coss' equipment. "Due to poor attitude and
refusal to abide by company and federal regulations .... "
The following weekend Coss told Cunningham that the
latter had been "laid off because she [Ms. Witsberger] fired
his truck."
Although Witsberger testified that she frequently could
dispatch Cunningham only by first going through Coss,
Mrs. Coss, the lessor's wife, testified that there was only one
occasion that this occured. Mrs. Coss credibly testified that
on that occasion she received a call from Witsberger that
Cunningham refused the Jamesburg, New Jersey, run. Mrs.
Coss referred the matter to Mr. Coss. who then advised
Cunningham to make the run or risk being fired by Wits-
berger.
It should also be noted in connection with the foregoing
that the leased equipment bore Respondent's name and ad-
dress, and that pursuant to the lease Respondent carried
public liability insurance on the equipment.
] It should be noted that under the lease agreement all fees, including tolls.
meals, and gasoline purchases. ere at the expense of Coss, the lessor.
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discussion
Respondent supports its contention that Cunningham is
not or was not its employee by several uncontested above-
recited facts. In the first place, Cunningham negotiated the
original lease for the equipment, armed with a power of
attorney from Coss, who at the time was hospitalized. Sec-
ond, some of the monies paid by Respondent for the use of
the equipment were in the form of checks made payable to
Cunningham as payee. Third, Respondent was not respon-
sible under the equipment lease for any salary to Cunning-
ham, who was to receive all his compensation for driving
the vehicle lease from Coss at the rate of 25 percent of the
monies received by Coss from Respondent pursuant to the
provisions therefore in the lease. The 25 percent was an
arrangement between Coss and Cunningham. Finally, al-
though before he could drive the leased vehicle Cunning-
ham had to satisfy Respondent as to his ability to perform
the necessary work by taking a driving test and by complet-
ing an employment application which was identical to the
application required of Respondent's admitted employees
this application conformed to the requirements for all driv-
ers operating vehicles in interstate commerce under I.C.C.
regulations.4
On the other hand, it is likewise undisputed in the record
that in all other respects Respondent exercised virtually
complete control over Cunningham's hours of work and
other conditions of employment. When Cunningham was
approved by Respondent to drive the leased equipment
Witsberger informed him in no uncertain terms that she,
not Coss, was Cunningham's boss. Moreover, Cunningham
was not permitted to "moonlight" or use the leased equip-
ment to engage return loads after a delivery for Respondent
even if he had to return empty. This, of course, directly
affected his income, as his earnings depended directly upon
the charges paid for use of the equipment. Furthermore,
Cunningham had to maintain a trip log to be turned over to
Respondent in order to receive payment for the deliveries
even though the basic payment was to Coss.
In addition to all of the foregoing Cunningham had to
conform to and obey all of the so-called "ten command-
ments" laid down by Witsberger under penalty of discharge
for failure to comply. Moreover, he had to accept all of the
assignments given him by Respondent and, indeed, seemed
to have had to use the routes prescribed by Respondent to
reach delivery points. Above all, he had to call in at Re-
spondent's expense, again under penalty of discharge, when
he had completed delivery at the assigned destination.
Last, on the one occasion that Cunningham originally
refused to make the trip to Jamesburg, New Jersey, upon
the advice of Coss that Witsberger could discharge Cun-
ningham, Cunningham made the run even though he knew
it would result in a financial loss.
While it is unquestioned that Cunningham was not di-
rectly discharged by Witsberger after his refusal to cross the
picket line established by Respondent's striking employees,
the lease for the Coss equipment was cancelled on the same
day as Cunningham's refusal to cross the picket line, so that
4 See ec. 391.21 application for employment, I.C.C. regulation pertaining
to motor camrriers.
in effect Witsberger, by indirection, brought about Cun-
ningham's discharge.
Although the Board has sought to apply the law of prin-
cipal and agent in determining whether an individual is an
employee or an independent contractor, the Board has also
had to consider regulations of such agencies as the Inter-
state Commerce Commission and similar state regulatory
agencies, and, therefore, the application of the laws of prin-
cipal and agent has not provided a simple uniform and
easily applicable test.5 Thus, the fact that Respondent, in
assigning work to Cunningham and having him supply in-
formation similar to that required of Respondent's admit-
ted employees, thus giving Respondent complete control
over Cunningham's worktimes, methods, and places of de-
livery, does not necessarily create an employer-employee
relationship because much if not all of this so-called control
is dictated by Interstate Commerce Commission rules and
regulations. Moreover, although Respondent had control
over the duration of Cunningham's employment in that it
could and did cancel the lease for the Coss equipment,
partly in retaliation for Cunningham's refusal to cross the
Respondent's employees' picket line, the compensation
Cunningham received for the work controlled by Respon-
dent was strictly the result of agreement between Cunning-
ham and Coss and was Coss' responsibility, not Respon-
dent's.
Nevertheless, in balance, the work Cunningham per-
formed was performed exclusively for Respondent. When
Respondent cancelled the lease Cunningham's employment
ceased. Therefore, in view of the complete control over
Cunningham's assignments; his inability, by order of Re-
spondent, to perform any "moonlighting" or engage the
leased equipment to make back trips when deliveries for
Respondent were completed; the position taken by Respon-
dent's president and general manager that she and not Coss
was Cunningham's boss: the fact that Respondent could
determine Cunningham's income by the delivery assign-
ments he received; and the threats of discharge for failure
to adhere strictly to the "ten commandments" all weigh in
favor of a finding that although Cunningham might have
been (without any specific record showing) some sort of
profit sharer or agent for Coss, he was also an employee of
Respondent.
In sum, the relationship between Respondent and Cun-
ningham is not one which overwhelmingly leads to the con-
clusions that Cunningham was and is an employee of Re-
spondent. However, Respondent's pervasive control over
Cunningham's mode of operating the leased vehicles leads
to the ultimate conclusions that the General Counsel has
shown by a preponderance of the credible evidence that
Cunningham is an employee of Respondent entitled to the
protection afforded by the Act. It is so found.6
See Harter, Jr., "Are They Employees Or Independent Contractors,"
Labor Law Journal, Vol. 29 No. 12 (December 1978), p. 779 et seq.
6 See Local 814, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers ofAmerica (Malloy Brothers Moving and Storage, Inc.),
208 NLRB 276 (1974); cf. Local 814, Teamsters (Santini Brothers, Inc.), 208
NLRB 184 (1974); Local 814, Teamsters (Santini Brothers, Inc.), 233 NLRB
752 (1976); Standard Oil Company, 230 NLRB 967 (1977).
1032
TRI-STATE TRANSPORT CORPORATION
IV. THE EFFECTS OF THE UNFAIR I.ABOR PRA(TI( ES UPON
COMMERCE
The activities of Respondent set forth in section III.
above, occurring in connection with the operations of Re-
spondent described in section 1. above, have a close, inti-
mate, and substantial relationship to trade. traffic, and com-
merce 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 Respondent herein has vio-
lated the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
caused the discharge of Henry Cunningham, it will be or-
dered that Respondent offer Cunningham immediate and
full reinstatement to his former position or, if that position
no longer exists, to a substantially equivalent position' and
make him whole for any loss of earnings suffered by reason
of the discrimination against him by payment to him of a
sum of money which he normally would have earned had
Respondent not cancelled the lease with Coss for the equip-
ment Cunningham drove. Backpay shall be computed on a
quarterly basis with interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation. 231 NLRB 651
(1977).8
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. By causing the discharge of Henry Cunningham for
engaging in protected activity Respondent has violated and
is violating Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding and pursuant to
Section 10(c) of the Act I hereby issue the following recom-
mended:
ORDER 9
The Respondent, Tri-State Transport Corporation,
Wheeling, West Virginia, its officers, agents, successors, and
assigns, shall:
' However, it will not be ordered at this time that Respondent be required
to reinstate the lease for Coss' equipment. The manner of Cunningham's
reinstatement is left to the compliance stage of this proceeding.
'See, generally, Isis Plumbing Heaoing Co.. 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
I. Cease and desist from:
(a) Discharging or causing the discharge of or refusing to
reinstate Henry Cunningham or any other employee for en-
gaging in protected concerted activity.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Henry Cunningham immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position and
make Henry Cunningham whole for any loss of earnings
which he may have suffered by reason of the discrimination
against him in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary and pertinent to compute the amount of backpay due
in accordance with the section of this Decision entitled
"The Remedy."
(c) Post at its office and facility in Wheeling, West Vir-
ginia, copies of the attached notice marked "Appendix."'"
Copies of said notice, to be furnished by the Regional Di-
rector for Region 6, after being duly signed by an autho-
rized representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to em-
ployees 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.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
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.
lo In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of he Na-
tional Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE wit.i. NT discharge, or cause the discharge of,
or refuse to reinstate any of our employees because
they engage in any protected. concerted activity such
as refusing to cross a lawful picket line at out office or
any part of our facilities.
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOI in any like or related manner interfere
with our employees' right to engage in protected con-
certed activity.
WE WILL offer Henry Cunningham immediate and
full reinstatement to his former position, or a substan-
tially similar one if that position no longer exists and
WE willn pay him back, with interest, for any loss of
earnings he may have incurred by reason of our dis-
charging him, or causing him to be discharged.
TRI-STATE TRANSPORT CORPORATION
1034