United States Steel Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1984

270 N.L.R.B. 1318 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Steel Corporation and Brotherhood of
Teamsters and Auto Truck Drivers, Local 85,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 20-CA-16855
22 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 19 December 1983 Administrative Law
Judge George Christensen issued the attached deci-
sion. The Charging Party filed exceptions and a
supporting brief, and the Respondent and the Inter-
venor' filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions 2 and briefs and
has decided to affirm the judge's rulings, findings,3
and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The Intervenor Industrial Personnel Corporation made a formal ap-
pearance at the hearing through counsel.
2 The Intervenor's motion to strike requests for extension of time to
file exceptions is denied.
3 For the reasons set forth by the judge we find the evidence insuffi-
cient to establish that the Respondent shared or codetermined those mat-
ters governing the essential terms and conditions of employment of the
drivers at issue and therefore adopt his finding that the Respondent is not
a joint employer of these employees. See Laerco Transportation d Ware-
house, 269 NLRB 324 (1984).
In his Conclusions of Law the judge inadvertently omitted the conclu-
sion that the Respondent did not violate the Act by refusing to partici-
pate in the processing of grievances.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge.
On February 9, 10, and 11 and on March 2 and 3, 1983, I
conducted a hearing at San Francisco, California, to try
issues raised by a complaint issued on July 2, 1982, based
on original and amended charges filed by Local 85 on
January 20 and February 3, 1982.
The complaint alleges that at times pertinent United
States Steel Corporation (USS) and Industrial Personnel
Corporation (IPC) were joint employers of drivers em-
ployed by IPC to man trucks leased by USS for the pur-
pose of hauling USS products between its San Francisco
facilities and other locations and that USS violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act
270 NLRB No. 206
by refusing to participate with IPC in processing a griev-
ance filed by one of those drivers alleging violation of
certain terms and conditions of a collective-bargaining
agreement between IPC and Local 85 and by failing and
refusing to bargain with Local 85 concerning its reduc-
tion in the number of drivers IPC was furnishing to USS
to man USS leased trucks.
USS and IPC denied USS violated the Act on the
ground they were not joint employers of the drivers in
question, IPC was their sole employer, further contend-
ing that even if they were joint employers there was no
violation because Local 85 waived any right it may have
had to USS participation in the processing of the Davis'
grievance and the reduction in the number of drivers and
consented to IPC's representation of both its and USS in-
terests in both matters.
The issues are: (1) whether at times pertinent USS and
IPC were joint employers of the drivers; (2) if so, wheth-
er USS violated the Act by failing or refusing to partici-
pate in the processing of the Davis' grievance or to bar-
gain with Local 85 over the reduction in the driver com-
plement furnished by IPC to USS; and (3) if so, what is
the appropriate remedy.
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence, to
examine and cross-examine witnesses, to argue, and to
file briefs. The General Counsel, USS, and IPC filed
briefs.
Based on my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I
enter the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that at all pertinent times USS and IPC were employers
engaged in commerce in a business affecting commerce
and Local 85 was a labor organization within the mean-
ing of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The Joint Employer issue
For a number of years USS had maintained a facility
at San Francisco where it received, stored, and shaped
steel brought from other facilities and delivered the fin-
ished products to end-users' within the area serviced
from the San Francisco facility. The San Francisco facil-
ity utilized leased trucks, common carriers, and customer
vehicles to pick up and deliver the products it handled,
in a ratio of approximately 60 percent, 30 percent, and 10
percent, respectively.
Over the same period of time IPC and Cal-Western
Company were labor brokers, i.e., they were in the busi-
ness of furnishing drivers to those desiring such services.
Machine and sheet metal shops, fabricators, builders, etc.
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UNITED STATES STEEL CORP.
In the fall of 1981, USS San Francisco facility was
contracting with IPC and Cal-Western to furnish drivers
to man the USS-leased truck fleet.2 Under the terms of
the USS-IPC contract, the parties agreed: (1) IPC would
furnish to USS whatever number of drivers USS desired;
(2) the drivers furnished would be fully qualified, i.e.,
they would possess all licenses required under applicable
federal and state laws, rules, and regulations, and they
would be fully trained in the operation of the vehicles
they were assigned to operate; (3) IPC would conduct
physical and other examinations of the drivers furnished,
maintain their time records, pay them their wages and
benefits, comply with the terms of any collective-bar-
gaining agreement between IPC and any labor organiza-
tion governing their rates of pay, wages, hours, and
working conditions, pay all Federal and state taxes
growing out of their employment (social security, unem-
ployment compensation, withheld income taxes, etc.),
maintain workmen's compensation insurance covering
them, conduct any union and other labor relations mat-
ters affecting them, and furnish them with USS uniforms;
(4) IPC would furnish USS with such reports, records,
and data as would enable USS to comply with applicable
state and Federal laws, regulations, and rules governing
its operation of its leased truck fleet as a private carrier;
(5) IPC would remove any driver or drivers furnished at
USS' request; and (6) USS would compensate IPC for
the services of the drivers furnished on a cost-plus basis. s
Pursuant to the terms of the USS-IPC contract, in
September 1981 IPC was supplying USS with eight driv-
ers and Cal-Western furnished one driver.
The rates of pay, wages, hours, and working condi-
tions of the drivers supplied by IPC to USS were gov-
erned by a collective-bargaining agreement between IPC
and Local 85. 4
At all pertinent times USS and IPC were separate cor-
porations engaged in separate business operations, had no
common owners or managers, and neither had any finan-
cial interest in or control over the other. IPC was a
wholly-owned subsidiary of Leaseway, Inc., a company
engaged in the business of furnishing vehicles and/or
drivers to over 100 customers and employing in excess of
1,000 workers."
The IPC and Cal-Western drivers furnished to USS
wore USS uniforms supplied at USS expense and drove
vehicles carrying a USS logo (as well as the identifica-
tion of the truck lessor). The IPC and Cal-Western driv-
ers, as well as the drivers of common carriers hired by
USS to accomplish a substantial portion of its pickups
and deliveries, received their bills of lading and other
documentation controlling their deliveries and pickup
from USS Traffic Manager, Richard Padovani. When
customers complained or raised questions concerning the
I USS also was contracting with other companies for scrap pickup,
garbage collection, janitorial services, etc.
3 The USS-Cal Western contract was not introduced into evidence.
4 The rates of pay, wages, hours, and working conditions of the driver
supplied by Cal-Western were governed by a collective-bargaining agree-
ment between Cal-western and a Los Angeles, California local union af-
filiated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
I The record does not disclose such information with respect to Cal-
Western.
merchandise and billing on delivery, the drivers relayed
those complaints and questions to Padovani, who in turn
contacted the appropriate USS official for dealing with
the matter (sales, finance, billing, production, etc.). When
a USS-leased truck had mechanical problems, the driver
contacted Padovani who, in turn contacted the truck
lessor (the lessor was responsible for repair and mainte-
nance or replacement). When a driver was authorized to
pay for a minor repair or replacement away from home,
Padovani reimbursed the driver and recouped the
amount advanced later.
From the time Richard Modic was appointed by IPC
as manager of its western operations (in July 1981),
Modic handled virtually all contacts with Local 85 offi-
cials and representatives concerning IPC's Local 85 rep-
resented drivers assigned to drive USS leased trucks, in-
cluding negotiation of a collective-bargaining agreement
to supplant the current IPC-Local 85 agreement, proc-
essing driver complaints and grievances, contract admin-
istration, discipline, securing casuals and replacements to
service the USS account, etc. Modic instructed the driv-
ers to contact him on all such matters, which they did.6
No USS representative participated in such negotia-
tions, grievance processing, etc. 7
IPC also carried out all the functions detailed in the
USS-IPC contract: maintaining driver-time records, sup-
plying necessary reports and documents, paying the driv-
ers' wages, fringe benefits, tax deductions, etc., conduct-
ing driver physical examinations, safety training, etc.
1. The Davis grievances
In the fall of 1981 Thomas Davis was working as the
night hostler at USS' San Francisco facilities, moving its
leased trucks as required for loading.
He was discharged by Modic on August 4, 1981, for
provoking and engaging in a fight with one of USS' war-
ehousemen at the facility. 8
On August 7, 1981, Local 85 filed a grievance, naming
IPC as the sole employer party, and alleging IPC violat-
ed the IPC-Local 85 agreement by discharging Davis
without just cause. Modic denied the grievance, and
Local 85 referred it to the next step-the Teamster Joint
Council 7 Grievance Committee-again naming only
IPC as the employer party. On August 20, 1981, Modic
appeared on behalf of IPC before the grievance commit-
tee. No question was raised or request made for USS ap-
pearance and participation as a joint employer of Davis.
The grievance was resolved by a decision to reduce the
discharge to a disciplinary warning notice and a direc-
tion that IPC reemploy Davis when he produced a medi-
cal release.
a Prior to Modic's arrival, Padovani performed some of these func-
tions-attempting to resolve driver complaints, securing casuals or re-
placements-but this practice ceased after July of 1981.
' USS labor relations representative George Kulis handled all such
matters affecting USS union-represented and nonunion employees.
s The warehousemen were represented by the ILWU and covered by
a USS-ILWU agreement.
a Davis, alleging he was injured in the fight, applied for workmen's
compensation.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the subsequent month Modic heard Davis did
not have a valid class I driver's license (required to oper-
ate USS-leased vehicles).
Thus when Davis produced a medical release on Octo-
ber 5, 1981, and requested reemployment, Modic refused
to offer him employment until and unless he produced a
valid class I driver's license.
On October 12, 1981, Local 85 filed a second griev-
ance, naming IPC as the sole employer party, alleging
IPC violated the IPC-Local 85 agreement by not com-
plying with the August 20, 1981, Joint Council 7 Griev-
ance Committee decision. Modic denied the grievance on
the grounds Davis was unqualified and USS had request-
ed his removal from its account because of the ill feeling
between the USS night warehouse staff and Davis. Local
85 referred the grievance to the Teamster Joint Council
7 Grievance Committee, again naming only IPC as the
employer party.
On December 17, 1981, Modic appeared on behalf of
IPC before the committee. Again no question was raised
or request made for USS appearance and participation as
a joint employer of Davis. The committee deadlocked
and the grievance was referred for consideration at the
third step of the grievance procedure under the IPC-
Local 85 agreement before the Teamsters Western Area
Grievance Committee.
On January 5, 1982, Local 85 formally requested USS
to appear at the February 1982 Teamsters Western Area
Grievance Committee proceeding as the alleged joint
employer of Davis. On January 12, 1982, USS denied the
request, stating USS was not a joint employer of Davis.
On January 21, 1982, Modic wrote to Local 85 to
advise Local 85 IPC was Davis' employer, USS was not,
and IPC would continue to represent its interests with
respect to Davis under the terms of IPC-Local 85 agree-
ment.
On January 25, 1982, Local 85 filed a third grievance,
naming IPC as the sole employer party, alleging IPC
violated the IPC-Local 85 agreement by removing
Davis' name from the seniority list of IPC employees as-
signed to work on the USS contract. Modic denied the
grievance. Local 85 referred the grievance to the Team-
sters Joint Council 7 Grievance Committee, naming only
IPC as the employer party.
In February 1982 Teamsters Joint Western Area
Grievance Committee considered the October 12, 1981
Davis' grievance. Modic appeared as the sole employer
party. No question was raised or request made for USS
appearance and participation as a joint employer of
Davis. The grievance was resolved by a decision that
IPC and Local 85 representatives would proceed togeth-
er to the California Department of Motor Vehicles to as-
certain if Davis had a valid Class I driver's license; if he
did, IPC would pay Davis for time lost between Septem-
ber 10 and October 5, 1981 and would try to secure
work for Davis on an account other than USS.
On March 11, 1982, Teamsters Joint Council 7 Griev-
ance Committee considered the January 25, 1982 Davis'
grievance. Modic appeared as the sole employer party.
No question was raised or request made for USS appear-
ance and participation as a joint employer of Davis. The
grievance was resolved by a decision that IPC was to
assign Davis to such work as he could perform when
such work was available.
IPC and Local 85 subsequently scheduled a date to
visit the California Department of Motor Vehicles and
ascertain whether or not Davis had a valid Class I driv-
er's license. Local 85 subsequently canceled that sched-
uled date and never has rescheduled a date for such ex-
amination.
3. The partial discontinuance of USS use of leased
trucks and IPC and Cal-Western drivers in its
transportation operations
In the summer 1981, USS was utilizing both common
carriers and leased trucks manned by lPC and Cal-West-
ern drivers to conduct its transportation operations. IPC
driver Donald Russell manned a San Francisco-Portland
run, IPC driver Paul Redcloud manned a San Francisco-
Salt Lake City run, Cal-Western driver Robert Savoie
manned a San Francisco-Los Angeles run, and five IPC
drivers manned local runs. The first three runs involved
the pickup of loads at San Francisco for delivery to cus-
tomers between San Francisco and the three distant ter-
minal points, including deliveries to USS facilities at
each such terminal point, followed by pickups at the
USS facility at each terminal point and customer deliv-
eries on the return run.
USS business steadily declined in 1981, necessitating the
closure of USS Portland facility. Both the volume and
frequency of the three long runs was reduced substantial-
ly, in many cases resulting in the return of empty trucks
from their terminal points back to San Francisco. A sub-
stantial number of layoffs at the San Francisco facility of
both unrepresented and ILWU-represented warehouse
employees also occurred. The truck leases were due to
expire in late 1981, necessitating either renewal for an
additional term (normally 5 years) or nonrenewal.
USS reviewed its transportation operations and decid-
ed it would be economical to utilize common carriers for
all rather than a portion of its three distant runs, enabling
USS to reduce its leased fleet by three vehicles and its
use of two of the IPC-furnished drivers and the single
Cal-Western driver, retaining five vehicles and the use of
six IPC-furnished drivers. o
In accordance with that decision, on September 9,
1981, USS notified Cal-Western, IPC, and its truck lessor
effective September 30, 1981, it would no longer require
the use of the three vehicles it was utilizing on its three
long runs and it would no longer require the services of
the three drivers supplied by IPC and Cal-Western to
man those vehicles.
On September 17, 1981, IPC notified Local 85, Red-
cloud, and Russell that the services of Redcloud and
Russell would not be needed on the USS account after
September 30, 1981, in view of USS' action. Redcloud,
Russell and Local 85 representative Henry Montano sub-
sequently met with Modic to work out payment of ac-
crued benefits to Redcloud and Russell based on the
IPC-Local 85 agreement and the two drivers maintained
contact with Modic thereafter in an effort to secure
'o Five drivers for local runs and a night hostler.
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UNITED STATES STEEL CORP.
work on other IPC accounts. Montano at no time during
these conferences took the position USS was a joint em-
ployer of the two drivers, nor sought to discuss with
either Modic or any representative of USS the effect on
the two drivers of USS decision to discontinue the por-
tion of its transportation operations formerly conducted
by USS with leased vehicles driven by Redcloud, Rus-
sell, and Savoie. I l
On and after October 1, 1981, USS increased its use of
common carriers to make the pickups and deliveries to
and from the points on its three long runs.
The first time Local 85 asserted USS as a joint em-
ployer of Redcloud and Russell was obligated to bargain
with it concerning the effect of its September 1981 deci-
sion to cease conducting part of its operations with
leased trucks manned by IPC drivers occurred in De-
cember 1981, when Montano made such an assertion to
Padovani, followed by a letter dated December 30, 1981,
from Local 85's counsel repeating the assertion and re-
questing that USS bargain with Local 85 concerning the
matter.
On January 12, 1982, USS replied to that letter with a
denial it held joint employer status vis-a-vis Redcloud
and Russell and refused to comply with the request.
The record does not show that the local union repre-
senting Savoie ever took any action against either Cal-
Western or USS with respect to Savoie's removal as the
driver assigned by Cal-Western to handle USS' San
Francisco-Los Angeles run.
B. Analysis and Conclusions
1. The Joint Employer issue
For some time the Board and reviewing courts have
applied four criteria for determining whether an employ-
er who contracts for the services of another employer's
employees is a joint employer of those employees for the
purposes of the Act, namely, whether they have: (1)
common ownership or financial control; (2) common
management; (3) centralized control of labor relations;
and (4) interrelated operations.12
It is undisputed at all times USS and IPC were sepa-
rate companies engaged in separate business operations,
that neither had a financial or ownership interest in or
control over the other, and that they were separately
managed, and I so find and conclude.
I further find and conclude that from and after July
1981, IPC exercised full, independent, and sole control
over labor relations affecting its drivers assigned to serv-
ice the USS account, including Russell and Redcloud, as
evidenced by the fact IPC was the sole employer party
to the agreement with Local 85 in effect on and after
July 1981 covering their rates of pay, wages, hours, and
working conditions; Modic on and after July 1981 nego-
tiated the terms of the successor agreement thereto with
I Neither Montano nor any other Local 85 representative ever, at any
time, contacted USS' labor relations representative at its San Francisco
facilities concerning the effect of USS decision on Redcloud and Russell.
12 Radio Union Television Broadcast Technicians Local 1264 v. Broadcast
Service, 380 U.S. 255 at 256 (1965), and cases cited.
Local 85 with neither participation, nor review nor ap-
proval thereof by any representative of USS; Modic after
July 1981 adjusted with Local 85 representatives and
those drivers the questions, complaints, and grievances
the drivers developed as a result of their employment on
the USS account, with neither participation by nor ap-
proval thereof by any representative of USS; that IPC
maintained for those drivers all their time and perform-
ance records, paid their wages, benefits, and other pay-
ments required by law arising from the employment rela-
tionship between them and IPC, scheduled their vaca-
tions, secured from Local 85's hiring hall casuals and re-
placements to meet USS' driver requirements; and ad-
ministered the IPC-Local 85 agreement; all without the
participation or review or approval of USS.'s
I further find and conclude such interrelationship as
existed in USS' and IPC's operations were those inciden-
tal to the normal contractor-customer relationship, and
insufficient to support a finding they were joint employ-
ers of the drivers IPC furnished USS to man its leased
vehicles. 14
I therefore finally find and conclude the evidence
failed to establish at times pertinent USS and IPC were
joint employers of the drivers supplied by IPC (and Cal-
Western) to man USS-leased vehicles1 ' and find, instead,
at all pertinent times IPC was their sole employer.
In view of the foregoing, I find it unnecessary to re-
solve the balance of the issues raised in this proceeding.
CONCLUSIONS OF LAW
1. At all pertinent times USS and IPC were employers
engaged in commerce in business affecting commerce
and Local 85 was a labor organization within the mean-
ing of Section 2 of the Act.
2. At times pertinent USS and IPC were not joint em-
ployers of drivers supplied by IPC (and Cal-Western) to
man USS' leased vehicles in USS' transportation oper-
ations.
3. USS did not violate the Act by refusing to bargain
with Local 85 concerning the effect on drivers of its
leased vehicles of its decision to assign to employees of
common carriers all rather than a portion of the deliv-
eries and pickups it made with leased trucks and drivers
supplied by IPC (and Cal-Western) on three runs.
On these findings of fact and conclusions of law and
on the entire record, I recommend the issuance of the
following I 6
ORDER
The complaint shall be and is dismissed in its entirety.
" Other than furnishing information.
"4 John Breuner Co., 248 NLRB 983 (1980).
1s Kaylor v. Crown Zellerbach, Inc., (9th Cir. 1981), 643 F.2d 1362; Pul-
itzer Publishing Co. v. NLRB, 618 F.2d 1275 (8th Cir. 1980); Marine Engi-
neers Beneficial Assn. District 2 (Grand Bassa Tankers), 261 NLRB 345
(1982); John Breuner Co., 248 NLRB 983 (1980).
'6 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
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