Troupe Leasing Co.

National Labor Relations Board - Board Decisions

Jan 23, 1969

174 N.L.R.B. 200 (N.L.R.B. 1969)

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Troupe Leasing Co. and Chemical Leaman Tank
Lines, Inc.' and Automotive '& Petroleum
Employees Local Union No. 103 , affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America , Petitioner . Case 9-RC-7526
January 23, 1969
DECISION ON REVIEW
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, AND ZAGORIA
On February 29, 1968, the Acting Regional
Director for Region 9 issued a Decision and
Direction of Election in the instant proceeding in
which he found, inter alia, contrary to the
Petitioner's contention, that Troupe and Chemical
Leaman were not joint employers of the requested
unit of over-the-road drivers and that Troupe alone
was their employer. Thereafter, in accordance With
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Petitioner filed a request for review of the
Acting Regional Director's Decision on the ground
that substantial questions of law were raised by his
aforementioned findings.
The National Labor Relations Board, by
telegraphic Order dated April 3, 1968, granted the
request for review and stayed the election pending
its decision on review. The Petitioner and Chemical
Leaman subsequently filed briefs on review.
The Board has considered the entire record in this
case with respect to the issues under review,
including the briefs on review, and makes the
following findings:
The Petitioner seeks to represent a unit of
over-the-road drivers who drive tractors leased by
Troupe to Chemical Leaman pursuant to a long
term equipment lease agreement, for use in hauling
the latter's tank trailers. Chemical Leaman, a
Delaware Corporation, is an ICC certificated motor
carrier engaged in the transportation of bulk freight
over irregular routes in several states. It operates a
number of freight terminals, one of which is at
Ross, Ohio. At the Ross terminal it employs about
27 over-the-road drivers, mechanics and/or cleaners
who are currently represented by Drivers,
Mechanics, and Cleaners Independent Union No. 40
which intervened herein solely to protect its existing
contract unit. Troupe, an Ohio corporation, operates
a terminal at Hamilton, Ohio, about 10 miles
distant from Ross, where it employs the 17
'Referred to herein as Troupe and Chemical Leaman, respectively For
the reasons discussed below, the Acting Regional Director's ruling,
granting chemical Leaman's motion to strike its name from the petition, is
hereby reversed, accordingly, the caption has been amended to include
Chemical Leaman as a point employer with Troupe, of the employers
involved
over-the-road drivers herein sought and a number of
mechanics. 2
The Acting Regional Director found that Troupe,
as a corporate entity, is an independent contractor
rather than an agent of Chemical Leaman and
rejected the Petitioner's alternative contention that
Troupe and Chemical Leaman are joint employers
of the requested drivers. The Petitioner asserts that
the principles of Cement Transport3 and Manpower 4
are controlling herein and that a joint employer
finding is warranted by the record facts. We agree.
Chemical Leaman, in order to qualify as an ICC
certificated interstate motor vehicle common carrier,
must show at all times that it is fit, willing, and able
properly to perform its services in conformity with
the law. The ICC regulations contain extensive
provisions relating to the qualifications of drivers,
driving of motor vehicles, parts, and accessories
necessary for safe operations, reporting of accidents,
hours of service of drivers, and inspection and
maintenance of equipment. The regulations further
impose responsibility on the carrier to make certain
that the regulations are observed by its drivers.
Under the regulations, a carrier is permitted to
augment its equipment by means of leases.
However, the regulations require the carrier to have
"full direction and control of such [leased] vehicles"
and to be "fully responsible for the operation
thereof, in accordance with applicable law and
regulations, as if the carrier was the owner of such
vehicles."
The lease agreement between Troupe and
Chemical Leaman was executed April 27, 1964,
effective for at least 30 days and terminable
thereafter on written notice. Attached to the
agreement is a schedule of the rental rates for the
leased equipment and,drivers supplied by Troupe in
terms of percentages of revenue, the percentages
varying with the type of load being hauled. - A
formula for computing the percentages paid for
return loads (back hauls) is also detailed. The
agreement, by express provision, does not require
the assignment of any particular load, run, or trip to
any described vehicle nor commit Chemical Leaman
to use any or all of the equipment leased.
As to inspection, paragraph 6 of the agreement
states that Troupe warrants that all equipment
leased is in good, safe, and efficient condition and in
full compliance with ICC rules and regulations and
shall be maintained by it. Troupe agrees to submit
the equipment to Chemical Leaman's inspection on
request and to furnish all records, information, and
documents pertaining to the equipment and Troupe's
drivers. If the equipment or driver for any reason is
'Although' Troupe stated that it is engaged in the business of interstate
freight transportation including leasing and servicing of its wholly owned
tractors by an equipment lease agreement with Chemical Leaman, the
record does not indicate whether or not it leases tractors to anyone other
than Chemical Leaman.
'Cement Transport, Inc, 162 NLRB 1261
'Manpower, Inc., of Shelby County and Armour Grocery Products Co,
Division of Armour and Company, 164 NLRB 287
174 NLRB No. 37
TROUPE LEASING CO.
rejected Chemical Leaman shall have no liability for
compensation to Troupe. Chemical Leaman shall
have the right to hold the movement of any leased
vehicle for inspection, for infraction of any safety
rules and regulations and/or routine safety
inspections.
Paragraph 8 states that Chemical Leaman shall
furnish to Troupe a placard or plate containing such
identification as required by ICC rules and
regulations and Troupe agrees to attach same to the
leased equipment.
Paragraph 9 provides that Troupe shall furnish
competent, experienced, and qualified drivers
necessary for the proper and lawful operation of the
equipment and shall direct and control their
employment and the manner in which they perform
their duties. Troupe warrants that all drivers
furnished shall meet the requirements of all
regulatory bodies having jurisdiction and agrees that
necessary physical examination certificates and other
data shall be furnished to Chemical Leaman to
determine such compliance. Drivers are and shall for
all purposes be conclusively presumed the employees
and/or agents of Troupe. Chemical Leaman agrees
that Troupe shall hire such drivers, helpers, or other
employees as it deems appropriate in the
performance of its duties under this lease agreement
and Chemical Leaman shall have no right to direct
or control their hiring, their discharge, or the
manner in which they perform their duties for
Troupe, nor shall Chemical Leaman have any
responsibility for their compensation, provided,
however, that Troupe's drivers shall be required by
Troupe to meet and adhere to such standards
established by Chemical Leaman as are necessary
and proper for the discharge of the duties imposed
upon Chemical Leaman by the local, state, or
federal regulatory bodies, any insurance company
with whom Chemical Leaman is insured and/or any
rules and regulations promulgated by Chemical
Leaman.
Paragraph 15 provides that Chemical Leaman
may sublease the equipment when permitted by
applicable rules and regulations, ... but neither party
may assign the lease agreement.
Paragraph 16 states that the relationship between
Chemical Leaman and Troupe shall be that of
Independent Contractor and the employees or
agents of one party shall not be the employees or
agents of the other party.
In paragraph 17, Troupe agrees that should it be
involved in a labor dispute with its employees, it will
immediately report this fact to Chemical Leaman. If
such dispute interferes or tends to interfere with
Troupe's operation for Chemical Leaman, then the
lease agreement shall be subject to immediate
cancellation by Chemical Leaman without liability
of any kind whatsoever.
As found by the Acting Regional Director, in
practice, Troupe interviews applicants for
employment as drivers of its tractors. If acceptable
201
to Troupe, an applicant is then given a written
examination by Chemical Leaman as required by
ICC regulations. Also, he is given a physical
examination by an examiner selected and
compensated by Troupe. If he passes these tests, the
applicant is then instructed on safety and other
operating procedures by Troupe.
Troupe's daily freight schedule is normally
determined on the previous day when Troupe's
president receives it from Chemical Leaman's
dispatcher. Troupe assigns drivers to carry out such
schedule, sending them to Chemical Leaman's
terminal or a shipper's dock with a tractors to hook
up with the loaded tank trailer and receive the bill
of lading, and provides them with their travel routes!
After making their deliveries, the drivers, pursuant
to Z roupe's instructions, contact a Chemical
Leaman terminal in the area to get a "back haul,"
if any is available, for delivery to the vicinity of
Troupe's terminal. Pursuant to ICC regulations,
Troupe's drivers are required to submit their daily
drivers' logs to Chemical Leaman. Chemical
Leaman does not discipline the drivers of Troupe's
tractors. However, implementing its responsibilities
under the ICC regulations, Chemical Leaman has
an accident prevention department which road
checks all equipment and drivers utilized by it in its
operations. Troupe pays the drivers of its equipment
and makes all pay deductions required by state and
federal laws. Troupe also pays the highway use
taxes, other regulatory taxes, and registration fees
for the leased equipment. The requested drivers do
not interchange with the currently represented
drivers employed at Chemical Leaman's Ross
terminal.
It is clear from the foregoing that Troupe has and
exercises considerable control over the means by
which the drivers of its leased equipment carry out
the lease agreement with Chemical Leaman.
However, we find that Chemical Leaman has
reserved to itself the right to control and, in
practice, exercises substantial control over the
essential terms and conditions of employment for
such drivers. In determining the employer status of
ICC certificated motor carriers with respect to
drivers of leased equipment, the Board has placed
particular emphasis on the overall effect of the ICC
regulations requiring comprehensive control by the
certificated carriers over the operations of
equipment owners, the drivers, and the leased
equipment.' In the instant case, although the lease
agreement states that Troupe shall direct and
control the employment of the drivers of the leased
equipment and the manner in which they perform
'The tractors bear the name Chemical Leaman and other required
information
'It appears that where last minute changes are made the drivers receive
their dispatch instructions directly from the Chemical Leaman terminal
dispatcher.
'Cement Transport , Inc., supra, and Indiana Refrigerator Lines, Inc.,
157 NLRB 539.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their duties, such statement is qualified by the
indication in paragraph 9 of the agreement that
Chemical Leaman retains the right to share in such
control, consistent with the obligations imposed on
it by the ICC regulations. Moreover, as above
indicated, Chemical Leaman in fact does share ' in
controlling the employment of Troupe's drivers.
Chemical Leaman has exclusive control over the
leased equipment; it can terminate the lease
agreement on written notice; it participates in the
hiring of the drivers of the leased equipment; it
requires all drivers to submit trip logs to it, it
requires that its name be exhibited on the leased
equipment; it conducts, through its safety patrol,
road checks for the purpose of making routine
safety inspections of the leased equipment and
detecting and correcting violations by the drivers of
regulations promulgated by the ICC or itself. Also,
Chemical Leaman, through its dispatchers, gives
directions to the drivers of leased equipment when
back hauls are available.8 For these reasons, we find
that Chemical Leaman and Troupe are joint
employers of the drivers here involved.'
Accordingly, we shall remand the case to the
Regional Director for Region 9 for the purpose of
conducting an election pursuant to the Acting
Regional Director's Decision and Direction of
Election, as modified herein, except that the payroll
period for determining eligibility shall be that
immediately preceding the date of issuance 10
'There is some indication in the record that Chemical Leaman also may
direct the drivers of leased equipment when emergencies arise or
last-minute schedule changes are made.
'See Manpower , Inc., of Shelby County and Armour Grocery Products
Co., Division of Armour and Company , 164 NLRB 287; and Hoskins
Ready-Mix Concrete , Inc., and Trinity Portland Cement Division , General
Portland Cement Company , 161 NLRB 1492 The case of L C Sinor, an
Individual, d/b/a L C Sinor and Standard Industries , Inc, 168 NLRB
No 67, relied on by the Regional Director , is factually distinguishable.
Compare our finding here with the earlier Chemical Leaman case (146
NLRB 148) There no allegation was made of a joint-employer relationship
with multiple owner-drivers who leased their equipment to Chemical
Leaman and supplied drivers for it, but the same equipment lease form
was in use, and the Board found that an employer -employee relationship
existed as to the said nonowner drivers and single owner drivers
"A corrected election eligibility list, containing the names and addresses
of all the eligible voters, must be filed by the Employer with the Regional
Director for Region 9 within 7 days after the date of this Decision on
Review. The Regional Director shall make the corrected list available to
all parties to the election . No extension of time to file this corrected list
shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed Excelsior
Underwear Inc., 156 NLRB 1236