Western Pennsylvania Motor Carriers Association, Inc.

National Labor Relations Board - Board Decisions

Dec 21, 1970

187 N.L.R.B. 371 (N.L.R.B. 1970)

WESTERN PA. MOTOR CARRIERS ASSN.
Western Pennsylvania Motor Carriers Association,
Inc., and Fraternal Association of Special Haulers,
Petitioner. %
McGaughey Bros . and Fraternal Association of
Special Haulers , Petitioner. Cases 6-RC-5244,
et al.,' and 6-RC-5208
December 21, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Thomas A. Ricci, Hearing Officer.
Following the opening of the hearing , these cases were
transferred to the National Labor Relations Board in
Washington, D.C., pursuant to Section 102.67 of the
National Labor Relations Board's Rules and Regula-
tions and Statements of Procedure , Series 8, as
amended. Thereafter, the Petitioner and the
Intervenors 2 filed briefs.3
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Hearing Officer's rulings made at the hearing
are free from prejudicial error and are hereby
affirmed.
Upon the entire record in these cases,4 including the
briefs, the Board finds that no question affecting
commerce exists concerning the representation of
employees of the Employers within the meaning of
Sections 9(c)(1) and 2(6) and (7) of the Act, for the
following reasons:
The Petitioner seeks to sever from units represented
I Forty separate petitions were filed regarding each of the following
members of the Western Pennsylvania Motor Carvers Association
Associated Transport, Inc, 6-RC-5462, 5463; B. & P Motor Express,
6-RC-5234, Brady Motor Freight, 6-RC-5199, Bremans 6-RC-5200;
Chadderton, 6-RC-5205; Halls Motor Transport, 6-RC-5215, 5216, 5217;
Hennis Freight Lines, 6-RC-5225, 5226, 5266, and 5284; McLean
Trucking, 6-RC-5214; J. Miller Express , 6-RC-5238, Mooney Bros,
6-RC-5320, Motor Freight Express , 6-RC-5202, 5203, 5221, 5291, 5327,
5328, 5329, 5382, and 5383; Quinn Freight Lines, 6-RC-5333, Ryder
Truck, inc., 6-RC-5213; Standard Motor Freight , 6-RC-5470; Trans
America , 6-RC-5242; Transcom , 6-RC-5385; Werner Continental,
6-RC-5230, Yellow Freight System, 6-RC-5330; Yourga Trucking,
6-RC-5220, Jones Motor, 6-RC-5239; Leeway Motor Freight,
6-RC-5350, 5351, Daniels Transfer Co., 6-RC-5469 , Wilson Freight,
6-RC-5271, Associated Truck Lines, 6-RC-5204, 5206 See fn . 5, infra,
and the accompanying text regarding certain additional petitions which
were consolidated with the above for hearing, and thereafter transferred to
the Board , but are not named in the caption.
2 International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , and Trucking Employers incorporated were
permitted to intervene in the proceeding.
3 The National Steel Carriers Association , Inc., and CTI Steel Haulers,
Inc, were permitted to file briefs.
4 Definitions Certain terms used in the trucking industry are, for the
purposes of this Decision, defined as follows : (a) Owneroperator- an
individual who drives his own single tractor or combination tractor-trailer
unit which he leases to a earner. (b) Fleet owner- an individual who owns
more than one unit and leases his equipment to one or more earners Fleet
371
by Teamsters and its Locals percentage drivers
engaged in the hauling of steel and special commodi-
ties. The Petitioner's order of preference as to unit
scope is (1) an associationwide unit (i.e., all such
employees of employers who are members of the
Western Pennsylvania Motor Carriers Association);
(2) separate single-employer units; or (3) all such
employees whose employers are members of Trucking
Employers Incorporated, a unit which would be
geographically coextensive with the multiemployer
coverage of the Teamsters National Master Freight
Agreement (TNMFA). The Intervenors contend, inter
alia, that percentage drivers cannot appropriately be
severed from the established units which also include
company drivers, general freight drivers, and local
drivers.
The Petitioner is a recently organized group of
truckdrivers, primarily owner-operators, originally
concentrated in the Pittsburgh area. It filed 188
separate representation petitions which were consoli-
dated for a single hearing. Of this number, 22 petitions
named various geographical associations of motor
carriers throughout the country as employer, 156
named individual trucking companies as employer,
and the remaining petition is directed to Trucking
Employers Incorporated (TEI), a national bargaining
association of trucking companies. With regard to
some of the carriers, there are multiple petitions
seeking separate units of percentage drivers either in
single terminals or in groups of several terminals as
opposed to a single unit of all percentage drivers in the
carrier's entire operation.
The Hearing Officer closed the hearing after
receiving evidence relevant to 42 petitions involving
owners are ineligible for membership in the Petitioner (c) Company
Driver- an individual who drives company-owned equipment Company
drivers are generally paid on a mileage (over-the-road ) or hourly (local
cartage) basis, although some are paid by percentage . (d) Percentage
drivers- also referred to herein as steelhaulers-technically this term seems
to apply to all truckdrivers paid on a percentage -of-tariff basis , but it is
used herein as it is defined in the Petitioner 's brief , including only those
drivers who operate their own rigs (owner-operators) and those who
operate rigs owned by fleet owners that are leased to earners It does not
include fleet owners, or company drivers . (e) Special commodities- Various
witnesses at the hearing had different definitions of this term As used
herein the term relates to steel and related products that are usually
transported in full truckload lots and for this reason move at a reduced
tariff, compared to other commodities , because they are transported in
bulk directly from the consignor to the consignee without intermediate
handling . Accordingly , the tamer charges less for his service in
transporting these special commodities and finds it more economical to use
owner-operators or fleet owners to transport them on a percentage -of-tariff
basis, rather than company drivers in company-owned equipment. (f)
General freight- also called mixed freight and dry freight . General freight
describes commodities which are normally transported in less-than-a-
truckload lots and normally move from the shipper to the carrier's
warehouse or terminal , where they are commingled with general freight
shipments received from other shippers. Because of the nature of this
freight, it is normally transported between the earner's terminals from city
to city in company-owned trailers As there is no way to relate the tariff to
the services of either the local drivers or the over -the-road drivers, all
drivers of general freight must be paid on an hourly or a mileage basis
187 NLRB No. 45
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Western Pennsylvania Motor Carriers Associa-
tion (WPMCA) and its member carriers.5 In one of
these petitions, the Petitioner seeks a unit of all
percentage steelhaulers of all trucking company
members of the WPMCA. In 40 others, the Petitioner
requests the percentage steelhaulers of the individual
members of the WPMCA in separate bargaining
units.
The Petitioner contends, inter alia, that the percent-
age drivers it seeks possess such skills and separate
identity, and perform such a distinct function that
they may appropriately be severed from a well-
established unit now represented by the Intervenor.
The record reveals the following as to these factors:
A. Comparative Skills of Drivers in the
Trucking Industry
The general working conditions of all over-the-road
drivers are similar, and the driving skills required of
all truckdrivers who haul heavy loads are generally
the same. For the most part the record indicates that
drivers hauling general freight and drivers hauling
steel and special commodities are away from home
about the same amount of time.6 In addition, the
same highway safety laws and load requirements
apply regardless of the commodity being hauled. Such
differences in skill or experience as may be required of
steelhaulers involve knowledge of securing loads and
protecting the commodity from the weather. Drivers
are usually not required to load the truck themselves,
but are required to instruct personnel when they pick
up their loads with regard to the proper method of
placement of the load on the trailer. The testimony of
most of the employer representatives at the hearing
was that there is very little difference in the degree of
skill required of steel drivers and that required of
general freight drivers. Most of the witnesses stated
that it would take no more than a day or two for a
general over-the-road driver to learn how to load steel
and haul it properly, and some testified that the skills
required could be learned in as little as 30 minutes.
The Petitioner offered little evidence to the contrary.
B. Separate Identity
The record indicates that owner-operators do have
some interests which diverge from those of company
and other drivers who are not sought by the
Petitioner. Most of these differences arise from the
fact that the owner-operator is driving his own
equipment. Thus, the owner-operator must pay for
5 All but one of the carriers named in these 42 petitions are members of
the WPMCA and have appointed the WPMCA as their exclusive
bargaining agent . McGaughey Brothers , named in Case 6-RC-5208, is not
a member of the WPMCA or any other association , but has signed the
Western Pennsylvania Steel Addendum and thereby agreed to be bound by
the TNMFA and the Joint Council No 40 Over-The-Road Supplement, as
fuel, maintenance and repairs, most highway tolls,
and license plates. As the Petitioner points out, the
owner-operator has invested as much as $30,000 in his
equipment and must continually meet monthly
payments averaging around $500. Therefore, he may
be differently affected by a strike or a possibility of
strike than is a company driver. Yet the aforesaid
differences also exist between the owner-operators
and employees who drive for fleet owners who are
sought by the Petitioner. A difference between
percentage drivers and those paid by the hour or by
mileage arises in situations where the driver must wait
to receive a load. The percentage driver receives
nothing for the first 4 hours of such "detention time,"
whereas an hourly paid driver is paid for the entire
time he is kept waiting. Where special commodity
drivers work out of separate divisions, they work off
separate seniority lists. Moreover, the only
"terminals" maintained by special commodities divi-
sions are dispatcher offices.
On the other hand, all of the drivers employed by all
of the carriers involved are covered by the NMFA
and its supplements for western Pennsylvania. The
Western Pennsylvania Steel Haul Addendum pro-
vides that the compensation received by owner-
operators paid on a percentage basis must at least
equal that which the driver would have received if
paid on an hourly or mileage basis over a 30-day
period. All drivers have been subject to virtually the
same grievance procedures, safety requirements, and
virtually all of the carriers involved maintain central-
ized bookkeeping systems which treat all their drivers
as a single group. Under the contract all of the dnvers
have received the same health, welfare, and pension
benefits as well as the same vacations and holidays.
C. Interchange and Transfer: Integration of
Operations
Representatives of most of the carriers represented
at the hearing stated that there was interchange and
permanent transfer between drivers of their Compa-
ny's steel and general freight divisions. Many compa-
nies had had situations where owner-operators sold
their trucks and began driving company-owned
equipment. Consequently, dnvers ceased being steel-
haulers paid on a percentage basis and began hauling
general freight as hourly or mileage employees.
Conversely, drivers who had been hauling general
freight have frequently decided to buy trucks and
move to their carrier's special commodity division.
well as the Steel Addendum itself. The body of this Decision concerns only
those Employers who are named in the 42 petitions as to which the hearing
was closed These Employers and the 42 petitions are named in the caption
and fn I of this Decision The balance of the 146 petitions which were
consolidated for the hearing are dealt with in the attached Order
6 This does not apply, of course, to local drivers
WESTERN PA. MOTOR CARRIERS ASSN.
Further, the record indicates that most of the
Companies that operate both special commodities
and general freight divisions utilize special commodi-
ty drivers to haul general freight periodically.? In
some cases when this is done, the drivers who are
normally paid by percentage are paid either by the
hour or by the mile.
D. Representation Accorded Owner-Operators
and Drivers for Fleet Owners under the
Teamsters Contracts
The Petitioner asserts that Teamsters has not
provided the drivers it seeks with adequate represent-
ation. In support of this contention, the Petitioner
cites complaints of steelhaulers about "city charges"
that require deduction from the drivers' share of
money to be paid for city drivers in Chicago, and also
the uncompensated time that percentage drivers must
spend waiting to be loaded. The Petitioner, however,
presented virtually no evidence of failure to enforce
any contract provisions or failure of Teamsters to
process grievances filed by owner-operators.
Teamsters countered these arguments by pointing
out that the drivers' percentage of the gross trip
revenue has been increased from 23 percent to 26
percent over the 3-year duration of the recently
expired contract, and in addition, with the increase in
shipping tariffs, the drivers' revenue has increased
proportionally under the percentage system. More-
over, Teamsters has negotiated a separate supplement
to cover the employees involved in the 42 petitions
now before the Board (Western Pennsylvania Steel
Haul Addendum), and Teamsters accorded all steel-
haulers separate voting privileges when the national
agreements were ratified by the membership.
E. Collective-Bargaining History
Areawide contracts in the trucking industry began
in 1936, with contracts executed in the Northwest
covering over-the-road drivers in Washington, Ore-
gon, Montana, and Idaho. By 1940, multistate
agreements were in effect throughout the industry;
there were 13 area Freight Agreements in existence
covering the Eastern States.
In early 1963 representatives of various employer
associations and Teamsters representatives met infor-
mally. On June 12, 1963, TEI was formed to negotiate
on behalf of 27 employer associations. The Teamsters
Union Negotiating Committee, meeting with the TEI
negotiating committee, negotiated the NMFA includ-
ing all of its economic items listed below. Area
r Representatives of the various motor carriers testifying at the hearing
stated that this occurs "at times," "often on back hauls ," on occasions,"
"daily," two or thiee loads a week "
373
supplements to the NMFA were negotiated by special
subcommittees appointed by the Teamsters confer-
ence director, and employer representatives appoint-
ed by TEI, and covered matters described below. All
of these supplements were subject to the final
approval of the Teamsters National Negotiating
Committee. Proposals for all of the agreements were
solicited from local unions, and the 1964 and 1967
National Agreements and their supplements were
subsequently ratified by the membership in secret
ballot elections supervised by the U.S. Department of
Labor.
The area supplement covering the employees
requested in the petitions now before the Board is the
Teamsters Joint Council No. 40 Over-The-Road
Supplement. It was stipulated at the hearing that the
NMFA and the Joint Council No. 40 Over-The-Road
Supplement when read together constitute a complete
bargaining agreement which was in effect until
January 1970. The parties to the NMFA are stated
therein to be as follows:
The Employers consists of Associations, mem-
bers of Associations who have given their authori-
zation to the Associations to execute this Agree-
ment and Supplemental Agreements, members of
Associations, who have not given such powers of
attorney, and individual Employers who become
signatory to this Agreement and Supplemental
Agreements on behalf of their members under and
as limited by their authorizations.
The Union consists of any Local Union which
may become a party to this Agreement and any
Supplemental Agreement as hereinafter set forth.
Such Local Unions are hereinafter designated as
"Local Union." In addition to such Local Unions,
the National Over-The-Road and City Cartage
Policy and Negotiating Committee, is also a party
to this Agreement and the agreements supplemen-
tal hereto.
The NMFA further provides that the employees
covered under the contract and its supplements
constitute one bargaining unit.
The NMFA itself includes the above
"recognitional" clause , checkoff provisions, seniority
provisions, including employee rights with regard to
the closing of individual terminals, cost-of-living
increase provisions, and the provision for the Nation-
al Grievance Procedure. The Joint Council No. 40
Over-The-Road Supplement provides for union shop,
local grievance machinery, pension plan, and wages.
It was stated at the hearing that all the area
supplements are basically similar.8
s Due to the nature of the hearing , testimony with respect to steel
addendums in other parts of the country negotiated with Teamsters by
other bargaining associations was limited What evidence there is indicates
(Continued)
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to these agreements there are several
other supplements provided for each of the special
types of work performed by the various classifications
of employees covered by the Master Agreement. The
one such agreement directly concerning the petitions
in this case is the Western Pennsylvania Steel Haul
Addendum. This Addendum9 provides the percent-
age to be paid to the owner of the truck and to its
driver in transporting steel and special commodities.
The Addendum specifies that of the total tariff paid
by the shipper to the carrier, 46 percent is paid to the
owner of the leased equipment (the owner-operator or
fleet owner), 26 percent 10 to the driver for his services,
and an additional 3 percent to the driver for vacation
and holiday pay. This total of 75 percent is referred to
as the owner-operator's share.
Most of the carriers involved operate separate
divisions for steel and general freight.ii The testimo-
ny in the record reflects that this is done primarily
because the Union prefers separate operations for
bookkeeping purposes.
All carriers in the WPMCA are not automatically
bound by the Western Pennsylvania Steel Adden-
dum. A carrier is permitted to transport steel on an
hourly or mileage basis, and under these circum-
stances its steel and special commodities operation
remain covered by the over-the-road agreement
rather than the Steel Addendum. The purpose of the
Steel Addendum is to permit a carrier to haul steel
and special commodities on a percentage basis of pay
rather than on an hourly or mileage basis as
established by the master freight agreement and the
over-the-road agreement.
On the basis of the foregoing, it is clear that the
requested employees of the Employers named in these
42 petitions do not constitute a functionally distinct
department or departments for which a tradition of
separate representation exists .12 All over-the-road
truckdrivers perform basically the same work, and, in
view of the overwhelming weight of the testimony to
the effect that any separate skills required by
that the differences among the various addendums lie in the procedures
relating to the initial steps of the grievance procedure and method of
making payments to health and welfare funds
9 Under the terms of the Steel Addendum the parties thereto agree to be
bound by the terms and provisions of the NMFA and the Joint Council
No. 40 Over-The-Road Supplement
10 This figure reflects the driver's share effective April 1, 1969; prior to
that time the driver received 24 percent effective April I, 1967, and 25
percent effective April 1, 1968
1i The business representative of Joint Council No. 40 testified without
percentage drivers can be acquired within a very short
period, it cannot be said that the requested drivers
constitute a "distinct and homogeneous group of
skilled journeymen craftsmen performing the func-
tions of their craft." The unit requested in Case
6-RC-5244, to be comprised of the percentage drivers
of all members of WPMCA, would not include
truckdrivers other than percentage steelhaulers who
have heretofore been covered by existing contracts. In
addition, there are many drivers working for the
carriers involved in these cases who are paid on a
percentage basis but whom the Petitioner is unwilling
to represent, e.g., haulers of furniture, refrigerated
goods, bottles, and meat, and company drivers who
haul steel and special commodities. There are also
owner-operators who are not eligible for inclusion
because they haul general freight. Finally, it appears
from the record that virtually all steelhaulers have
transported general freight at one time or another,
and many drivers who normally haul general freight
have carried steel and special commodities. In all the
circumstances, we find that the requested employees
as a group do not have interests in common with each
other which are substantially different from those of
other employees of the Employers. Accordingly, we
find that the unit or units sought by the Petitioner in
these petitions are inappropriate, and we shall order
that the petitions as to which the hearing has been
closed be dismissed.13
ORDER
It is hereby ordered that the 42 petitions specifically
referred to in the caption and footnote I herein be,
and they hereby are, dismissed.
IT IS FURTHER ORDERED that the 146 other petitions
which were consolidated for hearing with the 42
petitions dismissed herein be, and they hereby are,
remanded to the Regional Director for Region 6 for
further action in accord with this Decision.
contradiction that the Steel Addendum stipulates that the carrier must
operate a separate division for steel and special commodities However,
such a provision does not appear to be in the contract
12 Mallinekrodi Chemical Works, Uranium Division, 162 NLRB 387,
Member Fanning dissenting , but not as to the necessity of establishing the
existence of a true craft or of a functionally distinct department or
departments to qualify for severance.
13 In view of our decision on this issue , we find it unnecessary to
consider the other issues raised by the parties.