Tryon Trucking Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1971

192 N.L.R.B. 764 (N.L.R.B. 1971)

764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tryon Trucking Inc. and Fraternal Associations of
Special Haulers, Petitioner. Case 4-RC-8906
August 18, 1971
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before,, Hearing Officer Solomon S.
Spector of the National Labor Relations Board.
Following the. ,close of the hearing the Regional
Director fore Region 4 transferred this case to the
Board for decision: Thereafter, the Employer filed a
brief.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connec-
tion with this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the heating and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. 'The- Employer is engaged, in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2., The Employer contends' that the Petitioner,
FASH, is not a labor organization because it is the
,alter ego of another organization, Fraternal Associa-
tion of Steel Haulers, hereinafter referred to as the
Steel Haulers, which is an association of owners,
drivers, suppliers, and vendors of the trucking
industry and cannot be deemed a labor organization;
and because FASH negotiates rates for -equipment
rental apart and -distinct from wages, hours, and
working conditions.
In January 1970, the president of Steel Haulers was
appointed by the executive board of Steel Haulers to
be president of FASH. He called a meeting of
interested drivers, including Steel Haulers executives,
prepared cards designating FASH as a collective-
bargaining agent, and commenced, organizational
activities among drivers of many employers. Al-
though initially dependent upon Steel Haulers for
financial assistance, there is testimony that FASH
now has a constitution and bylaws, dues-paying
members consisting solely of drivers and owner-
drivers,, and a separate office.
FASH continues to have the same president, and to
receive ' some financial assistance from Steel Haulers.
1 See Schmerler Ford Inc. v. N.LRB., 424 F.2d 1335, 1339 (CA. 7),
cert . denied 400 U.S. 823.
2 Long Transportation Company, 191 NLRB No. 22, In. 2.
However, there is no evidence that individuals other
than drivers or owner-drivers dominate or control
FASH 'operations . Moreover, we find no'merit in the
Employer's contention that , because FASHA is inter-
ested in negotiating equipment rental rates, it cannot
be considered qualified as a labor organization.'
As the evidence shows that FASH is an or
tion in which employees participate and which exists
for the purpose, at least in -part, of dealing with
employers concerning - grievances
,
labor _ _ disputes,
wages, rates of pay, hours of employment, and
conditions of work, we find it = " to be a , labor
organization within the meaning of Section 2(5) of
the Act .2
3. The Petitioner seeks an election in a unit of all
drivers, including single-owner drivers and nonowner
drivers of leased equipment. The Employer contends
that all the drivers are either independent contractors
or the employees of independent. contractors:
There are approximately 56 drivers, ,each of whom
owns and operates his own truck. In addition, three
drivers operate trucks owned by a "fleet,owner-" who
has five or six trucks but does'not himself drive for
this Employer. Another driver owns two trucks, one
of which he drives; the other he employs a driver to
operate .3 The Employer employs no "company"
drivers who drive vehicles owned by the Employer.
The Employer executes standard lease agreements
with all of the owners, which agreements provide that
the Employer has exclusive control over the trucks.
The Employer pays the owners a standard rate of,76
percent of the tariff received for each load. The lease
states that the intention. is to establish an independ-
ent contractor relationship. The,lease is terminable
upon 30 days' notice by either' party. The owner
agrees to furnish a competent driver.who will submit
logsheets, physical examination certificate, and
accident reports as required by the Employer. The
Employer, has the right to inspect the equipment at
any time. The owner agrees to carry the Einnployer's
identifying insignia. All "costs of operation, mainte-
nance, repair, licenses, and fines are to, be borne by
the owner.
The Employer dispatches in, the order of return
from prior trips. Any driver has',the right to refuse a
load. If no driver is willing to' accept a load (whichis
then called "a "bad load',') the Employer tries to "trip-
lease" the load to some driver who has a lease ,with
some other carrier. If, he is unable, to, trip-lease the
load, the Employer calls in a~ driver and negotiates
3
owner
The parties agreed to exclude drivers, referred to below , the fleet
, the multiowner driver, and, tnp4ease drivers.
192 NLRB No. 123
TRYON TRUCKING INC. 765
with him, to deliver the-load for a rate higher than the
standard rate.4 After dispatch the driver goes to-the
customer, usually a steel mill, and picks up the load .5
The drivers' -do not load, or unload. The - driver
delivers the load to the destination designated by the
customer, selecting his own route. Then he calls the
Employer's nearest terminal and inquires if there are
any backhauls. He can refuse backhauls. If there are
none -acceptable to him, he, is free to accept a trip-
lease from some other company, but only to any
point for which the Employer has an ICC certifica-
tion. For-- the duration of the trip- lease, the truck
carries a placard 'showing the name of the carrier,
who has trip-leased the vehicle. Because of ICC
regulations, it is the practice for the trip lessor to pay
to the Employer the proceeds of a trip-lease. There is
testimony, however, that the, Employer then turns
over the proceeds in toto-to-the driver. The Employer
has found it necessary to discourage the practice of
its drivers' turning down the Employer's- backhauls
for trip-leases by advising them thatthosewho do so
will not be dispatched in theeregular order but will go
to the bottom of the listfor the next dispatch.
Cargo, public ^ liability, =and property damage
insurance _is paid for by, the Employer. The Employer
carries $250 deductible cargo insurance . On payable
claims, if the Employer, determines the losses were
caused by driver negligence, he may require the
owner to assume the deductible. The owner carries
insurance for collision, fire, and theft.
One of 'the- big items o€ damage is rust. The
Employer inspects tarpaulins and trailers for holes
which cause rust damage , and- will - not dispatch
equipment which does not meet its standards in this
respect.
The Employer does not assist in equipment
financing. - Drivers` are paid each week in a single
check ,for, loads carried during the week. The
Employer makes no deduction for workmen' s-com-
pensation, income tax, or social security, but does
deduct money it has advanced for expenses. Such
advances generally are no larger than the trip
revenue, except when made for the purpose of paying
for emergency' repairs. - Loans of this type must be
negotiated. `The Employer generally requires delivery
receipts before issuing checks, but has, when drivers
become lax in submitting required logs, threatened to
withhold payment until proper logs-were submittedF
Other matters which it has brought to the attention
of the drivers - are failure to gateway through
Philadelphia on -trips to Ohio, and the absolute
prohibition -against riders. The evidence indicates11,
thus the Employer has terminated leases when a
driver-owner trip-leased outside the Employer's
certified area and when a driver-owner threatened to
blow up another owner's rig in the terminal area.
The Employer has in the past provided its drivers
with group hospital and accident insurance on an
optional basis. However, because of lack of partici-
pation, it discontinued this practice.
When' drivers are : hired by owners, or leases are
executed with new driver-owners, the Employer
requires physical examination certificates, applica-
tion forms showing accident records, safety inspec-
tion of the vehicle, and a driving test. It may reject
drivers if any of these standards are not met. If
standards are met, it issues credentials to its drivers
showing their vehicles are leased to the Employer
and the vehicles and drivers meet required standards
of the ICC and the Department of ' Transportation.
These are for the drivers' use when securing trip-
leases. The drivers make arrangements for substi-
tutes, who also must be qualified. If breakdowns
occur on the road, it is the driver's responsibility to
make necessary arrangements to complete delivery of
the load, although the Employer will assist him to
locate other drivers in the area who could help him.
The Employer gives annual bonuses to drivers who
have had no chargeable accidents.
In making the determination as to whether an
individual is an employee or an independent contrac-
tor, the Board applies the right-of-control test. The
terms of the Employer's standard lease and the
practices followed thereunder establish to our satis-
faction that the Employer retains sufficient control
over the drivers to preclude a finding that, any of the
owners are independent contracters Through the
exercise of this control, the Employer, fulfills his
obligations under ICC and Department of Transpor-
tation regulations for ..the operation of these vehicles.
Thus, the Employer requires that each ,truck exhibit
the name of the Employer; participates in the hiring
of drivers; inspects the , equipment; performs the
dispatching service; and requires the submission of
logs. Moreover, the Employer determines the method
and amount of the percentage - pay system, can
require reimbursement , of a portion of cargo insur-
ance claims when it determines driver negligence;
and imposes rules against riders and penalties against
trip-leasing in certain circumstances. Finally, it
retains the right to terminate a lease on 30 days'
notice. Based upon these factors and the entire
record, we find the Employer retains the right to
4, The record does not' indicate the number of bad loads for which the emergencies or for special loads . If the Employer's trailers are used, the
Employer agrees to higher ,rates. However, it is reasonable to assume that in percentage rates are subject to negotiation with the driver whose tractor is
a profitmaking enterprise it would try to keep these to a minimum . used to pull the trailer..
5 The Employer owns five trailers of its own which are used in
766 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
control practically every aspect of, the drivers'
operations on its behalf .6
We therefore find these drivers and driver-owners
to be employees within the meaning . of Section 2(3),
of the Act, and that a question affecting commerce
exists concerning the-representation of these employ-
ees of, the, Employer within the meaning of Sections
9(c)(1) and 2(6) and (7) of the Act._
4. The appropriate unit : The Petitioner requests a
single-combined unit of drivers at all of the Employ-
er's, terminals . The Employer contends that two
separate units should be established,,one of drivers,
based at its Baltimore , Maryland, terminal , and one
of those based at its Morrisville , Pennsylvania,
terminal. 1
As indicated, the Employer operates exclusively
with leased equipment. Its ICC certification permits
it to make irregular hauls in Maryland , New Jersey,
New York, and eastern ' Pennsylvania . Under a
separate certificate it also may operate in the State of
Ohio: ,However ,+all of its 'Ohio 'hauls must gateway or,
go through the Metropolitan Philadelphia area. It
hauls only steel and heavy items.
The Employer's headquarters are in Morrisville,
where payroll and accounting records-and Depart-,
meat of Transportation and- ICC records are main-'
tained . Safety inspection and new-driver testing
programs in conformance with ICC and Department
of Transportation ' standards are conducted by the
Employer . The' Morrisville manager and one other
employee are qualified to perform this task . Both are
based at Morrisville but may go to any location to
perform testing and inspection.
The Employer operates terminals at'-Buffalo, New
York ; Baltimore, Maryland ; Streetsboro ,7 Ohio; and
Morrisville. Buffalo and Streetsboro are operated by
a single individual and do • not have permanently
assigned drivers . They are used only as places for the
drivers to report in and receive back assignments if
any are available . Only Baltimore ands Morrisville
have drivers assigned to them for dispatch . All leases
with new owners are signed there, except for trip-
leases which may be signed at any location. In the
main, new drivers select the terminal to which they
wish to be assigned . The Baltimore terminal dis-
patches mostly short hauls, and is a "turnaround"
operation . That is to say, most of the trips are into
the New York City, New Jersey, or Philadelphia
6 Deaton, Inc., 187 NLRB No. 102; Indiana .Refrigerator Lines, I ic., 157
NLRB 539.
7, A Cleveland suburb.
s' Burrus Mills Incorporated' 116 NLRB 384; McAllrster's Dairy Farms
Inc., 118 NLRB 1117.
a In order to assure that all eligible voters may have the opportunity to
be informed of the ,issues in 'the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them , Fxcelsior
Underwear Inc., 156 NLRB 1236; N.L,RB. v . Wyman-Gordon Co., 394 US.
areas,, with :few overnight hauls,, Morrisville dis-
patches all of,the Ohio loads and has most of the
long hauls, ,
Drivers may be dispatched from,.either,terminal
into any area. Upon, arrival drivers check into the
nearest terminal for possible return, loads. For
example, a Baltimore driver may be-dispatched to, a
New Jersey location near Morrisville,, and the
Morrisville terminal may, have a, load for, him in
Philadelphia to transport back to Baltimore.
There is testimony of only one circumstance where
drivers .-i asked -to have their terminal.: assignment
changed; several drivers who reside in Baltimore
asked to be assigned to Morrisville,; largely, because
they wanted longer hauls. _
The Employer keeps separate ; accounts -for its
Baltimore and Morrisville terminals. Baltimore, has
its own manager; who is of equal standing as the
Morrisville terminal manager. There is one general
manager over the entire .operation, There is no prior,
history. of bargaining and no labor organization seeks
to represent these drivers on other than-an employer-
wide basis. -
While in these circumstances a single-terminal unit
might be appropriate, in view of the common skills,
integration of operations of all,the-terminals, and the
common unity of interests of all the drivers' inherent
in employment by- the same company,, we find,that
the employerwide 8 unit requested by the Petitioner is
appropriate.
Accordingly, we find that Ythe following unit -is
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All drivers including single-owner drivers and
nonowner drivers of the Employer based at its
Morrisville, Pennsylvania, ,and Baltimore, Maryland,
terminals; but excluding trip-lease, drivers, fleet
owners, multiowner drivers, office clerical employ-
ees, professional - employees, guards, and supervisors
as defined in the Act.-,,, , .
[Direction of Elections omitted, from publication.)
CHAIRMAN MILLER, dissenting:
For ,the reasons stated in my,'dissent.in Deaton,
Inc., supra I would find the owners to be independ-
ent contractors. Indeed, there are factors"here not
present in, Deaton which even more forcibly compel a
finding that these, owner-operators- are independent
contractors, specifically.'
759. Accordingly, it is hereby directed that an 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 4 within 7 days of
the date of this Decision and Direction of Election. The, Regional Director
shall make the list available to all parties to the election. No extension of
time to -file this list Shan 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.
TRYON TRUCKING INC
1. The freedom which these drivers exercise to
secure return trip-leases through their own
arrangements.1°
2. The complete absence of any check points,
patrols, or any other devices to,assure on-the-road
compliance with any rules and regulations.
3. The practice of negotiating a special rate for
"bad loads" and when the Employer's trailers are
used.
4. The fact that this carrier has always operated
exclusively as a lease operation and has never
engaged in transport with his own vehicles and
drivers.
10 This case is distinguishable from Indiana Refrigerator, 157 NLRB 539,
in which the employer exercised some supervision of return trip-leases by
767
5. The fact that on breakdowns the driver is
almost exclusively on his own to secure necessary
repairs or to make arrangements for delivery.
It therefore appears to me that these owner-
operators have both substantial responsibilities of
ownership and opportunities to profit from sound
management. The carrier retains only that modicum
of control required of it by the ICC, and does not
thereby substantially alter the basic entrepreneurial
status of the owner-operator.
Accordingly, as all drivers. are either independent
contractors or employees of independent contractors,
I would dismiss the petition.
refusing permission to trip-lease for certain-employers. See also Bob, inc.,
116 NLRB 1931.