Deaton Truck Lines, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1963

143 N.L.R.B. 1372 (N.L.R.B. 1963)

1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument is that the labor agreement gave the union business agents the right to enter
the premises of the Company ; he accepts the contract provision to that point.
But, then , according to his argument , the limiting clauses on the right of entry are
to be disregarded , and in their place and stead , we are to take the Board 's decision
in Marshall Field Company, 98 NLRB 88. Of course, this piecing together of one
right from the contract and other rights, extracted from the decision, rewrites the
contract of the parties to the General Counsel 's liking, but I know of no legal
legerdemain by which it may be accomplished. In my judgment neither the General
Counsel nor the Union has the right to play "pick and choose" with the labor agree-
ment of the parties, thus affixing the guilt of unfair labor practices on the Company,
not by virtue of the contract, or by virtue of the Act, but by such a combination of
a piece of the contract, a piece of the Act, as may suit their purposes. This case was
tried by counsel to the pleadings, which are firmly based on the contract. In my
judgment, the General Counsel's argument based on Marshall Field Company, supra,
is beside the point.
The Union Buttons
The General Counsel contends that the Company violated Section 8(a)(1) of
the Act by promulgating and enforcing its rule prohibiting the wearing of emblems,
insignia , or pins on the uniforms of those employees who come into contact with
the public. His argument is premised on the case of Floridan Hotel of Tampa, Inc.,
137 NLRB 1484.
However, in my judgment the facts in this case are far different from those in the
Floridan case . Here , the rule at issue is different in several respects : ( 1) From all
the evidence in this case it appears that the rule came into being years ago, and
without reference to union or concerted activities on behalf of this or any other union.
(2) It is a general rule against the display of insignia of any group of a religious,
political, or fraternal nature. The rule has been invoked in the past against religious,
social , and school insignia . Now, in the ordinary course of events it has been invoked
against union insignia , but that act does not change the nature of the rule, which is
general and nondiscriminatory . (3) The rule applies only to uniformed employees
who come into direct contact with the public. (4) It applies only when those em-
ployees are on duty.
There is a belief among businessmen , which is as old as the Law Merchant itself,
that a merchant, shopkeeper, or innkeeper, who depends upon the patronage of the
public for his livelihood must refrain from becoming embroiled in the religious,
political, and sociological controversies of the day, if he is to continue to enjoy the
patronage of the public at large. From time immemorial it has been recognized that
a merchant who offends any large segment of the public will not stay in business
very long. The rule in this case merely recognizes this fact of commercial life and
seeks to preserve the neutrality of the Company on religious , political, and sociological
issues. As Kehl said to Heimerer, he did not care whether the button was for Mickey
Mouse or Nixon, the button had to come off. This rule merely implemented the
policy of the Company of avoiding involvement in the controversies of the day.
I think it had that right. Therefore, I find that the Company has not committed
the unfair labor practice alleged in paragraph X of the complaint.3
Finally, on the credibility findings set forth above, I find that the General Counsel
has failed to prove by a preponderance of the credible evidence that the Company
has committed any of the unfair labor practices alleged in the complaint.
Therefore, it is recommended that the complaint be dismissed in its entirety
I See N.L R.B v. Power Equipment Company, 313 F 2d 438 (C.A 6)
Deaton Truck Lines , Inc. and Teamsters, Chauffeurs, Ware-
housemen & Helpers, Local Union 612 . Case No. 10-CA-5055.
August 15, 1963
DECISION AND ORDER
On February 4, 1963, Trial Examiner ,Tohn P. von Rohr issued
his Intermediate Report in the above-entitled proceeding, finding
143 NLRB No. 124.
DEATON TRUCK LINES, INC. 1373 ,
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. The Trial Examiner also found that the Re-
spondent had not engaged in other unfair labor practices alleged in
the complaint and recommended that such allegations be dismissed.
Thereafter, the Respondent and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only insofar as consistent with
our decision herein.
Respondent, herein called Deaton, is an ICC licensed common car-
rier located in Birmingham, Alabama. It has approximately 263
trucks in its fleet, of which it owns 3 outright, and operates the balance
under lease agreements. Of the leased trucks 148 are driven by owner-
operators and 112 are operated by nonowner-drivers. Three drivers,
are acknowledged employees of Deaton.
In August 1956, after a 10-week recognition strike Respondent and
a committee entered into a "working agreement." The committee
was comprised of one to three lease operators and two agents of the
Union. Though the agreement was executed only in the name of the
committee, it contained provisions for continuation of dues checkoff
to the Union as well as provisions regarding seniority and wage scales
for drivers of company-owned and leased equipment. In May 1957,
the Respondent and the Union entered into a more conventional
collective-bargaining contract which expired in 1959, and a later con-
tract which expired in July 1962. Both the 1957 and 1959 contracts
contain a section entitled "Recognition and Union Security," which
provides that all "Mechanics, Helpers, Drivers, Driver Owners, etc."
become members of Local 612 after 30 days' employment, but do not
specifically set forth a unit description. These contracts also provide
wage scales for yard employees, company drivers, and nonowner-
drivers of leased equipment.
In March 1960, the Company was sold to Sellers, who owns 98 to
99 percent of the stock, and who continued to operate under the then
current agreement.
On May 11, 1962, the Union notified Respondent by letter that it
desired to open the existing agreement and that it would submit a
I 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 [Chairman McCulloch and
Members Rodgers and Leedom].
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copy of its proposed changes in the near future. At the time, there
were three suits pending in Federal courts between Respondent and
the Union. Each of these suits involved the question whether the
owner-drivers utilized by Deaton were employees or independent
contractors. During the negotiations herein, there was no decision in
any of these cases regarding the status of the drivers, and indeed no
published decision on the merits exists at this time.
Toward the end of June 1962, Deaton's attorney called the Union
for the purpose of arranging a meeting to discuss the contract. A
meeting was held on June 27, at which time the Union presented no
proposals but stated that it would in the near future. Deaton stated
that it would not give up the pending cases, nor would it agree to any
fundamental change in the status of the drivers, but that it was willing
to negotiate pending the outcome of the court cases.
On July 2, 1962, the Union presented its proposals. They were
different from those in the existing agreement in that they provided
for payment of drivers on a mileage rather than percentage-of-revenue
basis, for payment of separate amounts for driving and truck rental,
and that Deaton would clearly make all the drivers its employees.
According to Webb, the president and business manager of the Union,
Sellers characterized the Union's proposal as ridiculous for Sellers'
type of operation, and further stated that the only thing Sellers would
agree to would be an extension of the current agreement with minor
changes, provided the Union stipulated that the owner-drivers were
independent businessmen until the courts decided the question.
The Union made no further effort at negotiations and once again
Deaton's attorney arranged a meeting with the Union in mid-July?
The Employer took the position that it would leave the owner-drivers
as they were and bargain on other issues, or make the owner-drivers
independent contractors. The Employer also offered to extend the
then current agreement. The Union refused to consider making the
owner-drivers independent contractors, and would not bargain sep-
arately for the drivers who were admittedly employees. The Em-
ployer did agree to reduce its position to writing, and the following
letter was sent by Sellers to the union representative :
At our meeting to-day we restated to you our offer heretofore
made you in June. That offer was and still is that we are willing
to continue operating as in the past. That is, under a contract
similar to the one we have operated under for the past three years.
We again repeat, as we did in the previous meetings, that we are
not willing to change our fundamental way of doing business for
the purpose of effecting a change in the status of the lessor-owners.
2 The record indicates that this meeting was held on either July 15 or 17, while the
Trial Examiner states it was held on July 18.
DEATON TRUCK LINES, INC. 1375
In short, we will continue under the old or a similar contract
and under the old or similar leases and pursuant to our usual
method of doing business, pending a final determination in court
of the cases which you have brought against us, which, among
other things, involve and would result in a determination of the
status either as independent contractors or employees of our
lessor-owners.
On July 19, 1962, the Employer sent notice of cancellation of its
existing leases to the owner-drivers and substituted new leases which
would, on their face, make the owner-operators independent
contractors.
On July 26, 1962, the parties entered into a "Truce Agreement"
which continued the terms and conditions of the last contract, and
this agreement was in effect as of the date of the hearing.
The central issue before us, then, is determination of the employ-
ment status of individuals who drive in the Deaton fleet. The Trial
Examiner found that the owner-drivers are independent contractors
and that the multiple-owner-drivers, together with Deaton, are co-
employers of the nonowner-drivers. We disagree.
The drivers in the Deaton fleet can be classified in four categories :
(1) admitted employees who drive Deaton's trucks; (2) nonowner-
drivers who drive trucks leased by Deaton; (3) owner-drivers who
own a single truck which they drive and lease to Deaton; and (4)
multiple-owner-drivers who own more than one truck leased to Deaton,
and who drive one of their leased vehicles.
Each of these classifications of drivers is subject to the same work-
ing conditions, and all were covered by the same collective-bargaining
agreements. Deaton's method of operation is such that all drivers are
subject to the same degree of direction and control by Deaton. Deaton
treats all drivers alike in regard to their day-to-day employment re-
gardless of their nominal status. The truck lease provides that the
lessor can transport for no one else, that Deaton has exclusive control
of the vehicle, and that the owner must park his vehicle on Deaton's
lot when requested. All drivers must fill out an application with
Deaton and are subject to a medical examination and a Deaton-
supervised road, test. A company official decides whether or not a
driver is acceptable for service in the Deaton fleet. Deaton maintains
a list, or pool, of acceptable drivers. Multiple-owner-operators select
drivers for their equipment from this pool. After his acceptance the
prospective driver is oriented by Deaton in regard to company rules,
ICC safety regulations, and handling of freight bills. Each driver
must sign a "sign-in" book before his vehicle can be dispatched, and
Deaton handles all dispatching and supervises loading procedures.
Deaton can and does reprimand drivers, including owner-operators
and multiple-owner-operators, for late delivery, infractions of ICC
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rules, and company rules regarding speed, safety, driving practices,
and loading procedures. Deaton maintains a constant. check over all
drivers by use of a road patrol. Each driver is required to keep daily
inspection reports on the condition of his truck and trailer. Drivers
can take extended leave only with Deaton's permission and all drivers
are required to attend safety meetings. Deaton can discharge, or re-
move from its fleet, any driver it does not want, and no individual can
drive in Deaton's fleet without Deaton's express approval.
Though payment under the lease agreement appears to be a lump
sum computed as a percentage of gross revenue, this figure in reality
represents two separate payments-one for truck rental and one for
driving services. The lease agreement states that the owner will re-
ceive 70 percent of revenues on freight classified as sixth class or
higher and 75 percent on freight classified as seventh class or lower.'
The collective-bargaining agreement specifies that drivers of leased
equipment will receive 20 or 25 percent of gross revenue, depending on
the nature of the freight carried. Thus, when these two documents
are read together, it becomes apparent that there is a standard wage
paid for driving, which is determined through collective bargaining
and that the balance, depending on the nature of the freight carried,
is a standard fee paid by Deaton as the fee for rental of the equipment.
We note further that prior contracts between the Union and Deaton
contained union-security clauses, dues checkoff, provision for time
off to attend to union business, grievance procedure and arbitration,
picket line clause, provision for health and welfare payments, and a
seniority clause. These provisions applied to drivers, regardless of
their nominal status.
On the basis of the foregoing facts, as the drivers of vehicles bear-
ing the Deaton name and transporting goods for Deaton under its
direction and exclusive control, the owner-drivers are employees of
Deaton. We conclude also, in view of such control, that the non-
owner-drivers are employees of Deaton, alone.
In reaching his conclusions that the owner-drivers are independent
contractors and that multiple-owner-drivers are coemployers of drivers
of their extra trucks, the Trial Examiner relied on the Silk' case.
Though that case bears many similarities to the case at bar, it arose
under the Social Security Act and dealt with the construction of that
act. Here we are concerned with other legislation. In that case, the
Court pointed out that in construing social legislation, the terms "em-
ployment" and "employee" are to be construed to accomplish the
purpose of the particular legislation involved. Drawing upon experi-
3 The classifications are referred to in the lease agreement as National Motor Freight
Classification.
' Greijvan Lines, Inc . v. Harrison, 156 F. 2d 412 ( C.A. 7), af[d . sub nom. D.S. v. Salk,'
331 U.S. 704.
DEATON TRUCK LINES, INC. 1377
once under the National Labor Relations Act for illustration, the
Court stated : 5
The problem of differentiating between employee and an in-
dependent contractor, or between an agent and an independent
contractor, has given difficulty through the years before social
legislation multiplied its importance. When the matter arose
in the administration of the National Labor Relations Act, we
pointed out that the legal standards to fix responsibility for acts
of servants, employees or agents had not been reduced to such
certainty that it could be said there was "some simple, uniform
and easily applicable test." The word "employee," we said, was
not there used as a word of art, and its content in its context was
a federal problem to be construed "in the light of the mischief
to be corrected and the end to be attained." We concluded that,
since that end was the elimination of labor disputes and industrial
strife, "employees" included workers who were such as a matter
of economic reality. The aim of the Act was to remedy the in-
equality of bargaining power in controversies over wages, hours
and working conditions.
In the process of amending the National Labor Relations Act in
1947, the Congress addressed itself to this very problem.' It required
that the terms "employee" and "independent contractor" be given their
ordinary meanings, and excluded independent contractors from the
Section 2(3) definition of "employee."
The Board, in conformity with congressional intent, has followed
the usual tests of the law of agency and has applied the common law
"right of control" test. Under this test, an employer-employee rela-
tionship exists where the person for whom the services are performed
reserves the right to control not only the end to be achieved, but also
the means to be used in reaching such end. Consistent with this
congressional mandate, and having in mind the judicial dictate that
social legislation be construed "in the light of the mischief to be cor-
rected and the end to be attained," we feel compelled to reach a dif-
ferent conclusion from that of the Trial Examiner and find that the
drivers, including owner-drivers and multiple-owner-drivers, are em-
ployees of Deaton.1 We are satisfied that the degree of control exer-
cised by Deaton over these individuals as shown in part by the
collective-bargaining history, is sufficient to support a finding that
they are employees of Deaton both in law and as a "matter of economic
5 331 US. 704, 713.
0 H. Rept 245, 80th Cong., 1st sess. 18 (1947 ) ; H. Conf. Rept. 510, 80th Cong, 1st
sess. 33 (1947).
7 The Alabama Supreme Court has reached the same conclusion . Stevens v, Deaton
Truck Line, Inc., 54 So. 2d 464 (1959) ; Deaton Truck Line, Inc. v. Acker, 74 So. 2d 717
(1954) , Hays v. Deaton Truck Line, Inc ., 87 So. 2d 825 (1956)
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reality." As such they are entitled to the rights guaranteed and pro-
tection afforded by the Act.
Although we have found, in basic agreement with the General
Counsel, that the relationship between Deaton and all drivers of its
fleet is one of employment, we do not find that Deaton refused to bar-
gain within the meaning of Section 8(a) (5). The record clearly
establishes that multiple-owner-drivers have the power to hire and
fire drivers of their trucks. Not only do nonowner-drivers in the
Deacon fleet have to meet with Deaton's preliminary approval and
cannot be hired without such approval, they also have to meet with the
approval of, and are, in effect, hired by, the owner of the truck. More-
over, the multiple-owner-drivers assign drivers to trucks and trans-
fer them from one truck to another without the knowledge and consent
of Deaton. They can also fire drivers insofar as driving their trucks
is concerned, but in such circumstances the driver remains in the pool
and can be selected by another multiple-owner-driver, without need
of further clearance by Deaton. Under these circumstances we find
that the multiple-owner-drivers, possessing the power substantially
to effect the hire and discharge of employees, are supervisors within the
meaning of the Act. Inasmuch as the Union insisted upon their in-
clusion in the unit, as Respondent is under no duty to bargain for a
unit including supervisors, and as such insistence was one of the
obstacles to the conclusion of an agreement, we find that Respondent
has not violated Section 8(a) (5) by its refusal to bargain for the
unit insisted upon by the Union 8
The complaint also alleges that on July 19, 1962, Respondent uni-
laterally solicited its truckdrivers to execute agreements which would
change the status of the drivers from employee to independent con-
tractor. Such conduct could, arguably, constitute a violation of the
Act. However, just 1 week later the parties entered into a written
"Truce Agreement" continuing in effect the terms and conditions of
the last contract, which, in effect, rescinded the complained-of action.
That agreement is still in force. Thus, under these circumstances, no
useful purpose would be achieved by issuing a remedial order even were
a violation to be found as to this aspect of the complaint. Accord-
ingly, we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER RODGERS, concurring :
While I agree with my colleagues that the complaint should be dis-
missed, I disagree with their findings as to the status of the truck-
drivers. In my opinion, all the owner-operators are independent con-
tractors and the nonowner-drivers of leased trucks are employees of
8 Cf. Great Western Broadcasting Corporation d/b/a KXTV, 139 NLRB 93.
DEATON TRUCK LINES, INC. 1379
the truckowners alone. Greyvan Lines, Inc. v. Harrison, 156 F. 2d 412
(C.A. 7), affd. sub nom. U.S. v. Silk, 331 U.S. 704; Oklahoma Trailer
Convoy, Inc., 99 NLRB 1019; Eldon Miller, Inc., 103 NLRB 1627 and
107 NLRB 557; Malone Freight Lines, Inc., 106 NLRB 1107 and 107
NLRB 501; National Van Lines, Inc. v. N.L.R.B., 273 F. 2d 402 (C.A.
7). Accordingly, I concur only in the result reached by my colleagues.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on July 13, 1962, the General Counsel for the National
Labor Relations Board for the Regional Director for the Tenth Region (Atlanta,
Georgia), issued a complaint on August 24, 1962, against Deaton Truck Lines, Inc.,
herein called the Respondent or the Company, alleging that it had engaged in certain
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called
the Act. The Respondent's answer denies the allegations of unlawful conduct alleged
in the complaint.
Pursuant to notice, a hearing was held in Birmingham, Alabama, on October 30
and 31, 1962, before Trial Examiner John P. von Rohr. All parties were represented
by counsel and were afforded opportunity to adduce evidence, to examine and
cross-examine witnesses, and to file briefs. Briefs were filed by the General Counsel,
the Respondent, and the Charging Party and they have been carefully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Deaton Truck Lines, Inc., is an Alabama corporation with its office and place of
business located at Birmingham, Alabama, where it is engaged as a common carrier
by motor vehicle in the interstate transportation of freight.
During the 12 months preceding the hearing herein, Respondent received more
than $50,000 from the interstate transportation of freight.
The Respondent concedes, and I find, that it is and has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union 612, herein re-
ferred to as the Union or the Charging Party, is a labor organization within the
meaning of Section 2(5) of the Act.
A. The operations of the Company; the types of drivers
The Respondent Company, an irregular common carrier operating under the
authority of the Interstate Commerce Commission, is principally engaged in the
long-distance hauling of freight. As is typical of some larger motor carriers, a
substantial portion of its fleet consists of trucks leased to it by individual truckowners.
This case is largely concerned with the status of the various individuals who lease
and/or drive trucks for the Company. The categories of individuals involved in
this case may be broken down and defined as follows: company driver: an individual
who drives a truck owned by the Respondent; owner-driver: an individual who owns
and leases one truck to the Respondent and drives it; nonowner-driver of a leased
truck: an individual who drives a truck owned by the lessor; multiple-owner-driver:
an individual who owns more than one truck and leases them to the Respondent. An
individual in this category drives one truck, the others being driven by a non-owner-
driver; owner-nondriver: an individual who leases one or more trucks to the Respond-
ent but does not drive.
About the time the issue herein arose the Respondent maintained somewhat in
excess of 260 trucks in its operation . Of these, 148 were driven by owner-drivers
and 112 were driven by nonowner-drivers. Three Deaton-owned trucks were driven
by company drivers acknowledged to be Respondent's employees.
717-672-64-vol. 143-88
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Bargaining history
On August 13, 1956, following an approximate 10 weeks' strike, Respondent
Deaton Truck Lines, Inc., entered into an agreement referred to as "working rules"
with a group designated therein only as the committee. The sole reference to the
Charging Union in this document was a clause providing that "management agrees
to continue the practice of checkoff of union dues and the payment of the same to
Local 612, Teamsters A.F. of L."
In May 1957, Respondent and the Charging Union entered into a collective-
bargaining agreement which was made effective from May 21, 1957, to July 31, 1959.
Upon its expiration this was succeeded by a second agreement effective from
August 1, 1959, to July 31, 1962. It might be stated here that neither of these
contracts set forth a clear definition of the bargaining unit. Thus, the recognition
clause in the agreement provides as follows:
The experience of both parties hereto believe that haimonious relations
among employees and between the Employer and the Union can best be ob-
tained when all the employees for whom the Union is the collective bargaining
representative are members in good standing of the Union. It is therefore agreed
that subject to applicable law, all employees for which the Union is the bargain-
ing agent as provided herein shall become and remain members of the Union
during the life of this Agreement . .
The Employer agrees, subject to [State and Federal laws] that all Mechanics,
Helpers, Drivers, Driver Owners, etc., covered by this Agreement, employed
by the Company must become members of Local Union 612 if their employ-
ment continues beyond (30) days from the date of their hiring.
Other terms of the collective-bargaining agreement will be referred to as is here-
inafter deemed appropriate.
C. The 1962 negotiations
It should first be mentioned that a transfer of ownership of Deaton Truck Lines
occurred on March 15, 1960, at which time the Company was purchased by
Edwin M. Sellers. Sellers, who is Respondent's president, owns 98 to 99 percent
of the Company's stock. It is undisputed that the present ownership continued to
operate under the then current agreement with the Charging Union.
On May 11, 1962, the Union notified the Respondent by letter that it desired to
open the existing agreement and that it would submit a copy of its proposed changes
in the near future. Not having heard any further from the Union, Respondent's
attorney, Mark L. Taliaferro, finally called the Union in the latter part of June. It
was agreed that a meeting would be held at the Joey Young Cafe in Birmingham
on June 27.
At this point we pause to mention that in May 1962, three lawsuits were pending
in Federal and State courts between the Respondent and the Union. Two were
instituted by the Union and one by the Respondent. Without belaboring this report
with the details of this litigation, suffice it to say that each of these cases involved
the question as to whether the driver-owners occupied the status of employees or
independent contractors.
Not much was accomplished at the meeting of June 27. Respondent indicated
that it was willing to negotiate but that it was not abandoning its defense to the
Union's lawsuits to the effect that the owner-drivers were independent contractors.
The Union did not present any contract proposals at this meeting but indicated that
it soon would submit its proposals in writing.'
The Union's contract proposals, as reduced to writing, were delivered to President
Sellers on July 2 by G. S. Webb, president and business manager of the local union.
It is not of sufficient importance to the issues herein to detail these proposals except
to say that they presented substantial and extensive changes from the existing agree-
ment. One proposal which the record reveals to be particularly objectionable to the
Respondent was that which called for compensation to the drivers based on a mileage
basis rather than compensation based upon a percentage of revenue, the latter being
the method under which Respondent historically operated. Webb testified that after
"thumbing through" the Union's proposals Sellers stated that the "type of proposal"
was "ridiculous" for his operation. Webb further testified, without contradiction,
1 While there is other testimony concerning this meeting, I do not deem it necessary to
spell it out in this report. As noted hereinafter, the issues pertinent hereto were brought
to a head by the subsequent stands of the parties.
DEATON TRUCK LINES, INC . 1381
that "at that time he [Sellers] said that the only thing he could be agreeable to
was to let the present contract continue in its old status or maybe negotiate one or
two minor changes, provided that we would stipulate that the drivers were independ-
ent businessmen until such time as the court could decide the question."
A final meeting between the parties was held in the office of Attorney Taliaferro
on July 18. The substance of the Respondent's position at this meeting is summed
up in the following letter of the same date which Sellers sent to Webb:
At our meeting today we restated to you our offer heretofore made you in
June. That offer was and still is that we are willing to continue operating as in
the past. That is, under a contract similar to the one we have operated under
for the past three years. We again repeat, as we did in the previous meetings,
that we are not willing to change our fundamental way of doing business for
the purposes of effecting a change in the status of the lessor-owners.
In short, we will continue under the old or a similar contract and under the
old or similar leases and pursuant to our usual method of doing business, pend-
ing a final determination in court of the cases which you have brought against
us and we have brought against you, which, among other things, involve and
would result in a determination of the status either as independent contractors
or employees of our lessor-owners.
On July 19, the Respondent wrote identical letters to each of the driver-owners,
enclosing copies of new leases to each of them. The pertinent portion thereof, which
is self-explanatory, is as follows: 2
The Company takes the position that each of you is an independent con-
tractor. The Union takes the position that you are employees of Deaton
Truck Line. We are in such fundamental disagreement on this subject that
there seems to be no possibility of reaching an agreement. For this reason, we
want you to know how we propose to operate with each of you as individual
lessor-owners.
In accordance with paragraph 3 of the present lease, we are giving you thirty
days' notice effective August 1, 1962, that your present lease is terminated . .
We are enclosing two (2) copies of a new lease that has been executed by
an official of the Company. If you are desirous of operating for Deaton Truck
Line in the future, please execute both copies of this new agreement and have
it witnessed under your signature .. . .
On July 26, while engaged in litigation in the U.S. District Court for the Northern
District of Alabama, and apparently at the court's behest, the Union and the Re-
spondent entered into a written "Truce Agreement" which continued the terms and
conditions of the last contract, subject to termination by either party on 30 days'
notice. This truce agreement continued to be in effect as of the date of the hearing
herein.
D. The issue
As has been apparent from the foregoing, it is the Respondent's position that the
owner-drivers are independent contractors. The General Counsel and the Union,
on the other hand, contend that these individuals are employees within the meaning
of the Act. In addition, there is dispute concerning the status of the non-owner-
drivers. Although these individuals are acknowledged by all parties to be employees,
the General Counsel contends them to be employees of the Respondent while the
Respondent takes the position that they are the employees of the lessor truckowners
whose respective trucks they drive.
The parties are in agreement only as to the status of the employees who drive
trucks owned by the Respondent and as to the individuals who lease trucks to the
Respondent but are not engaged in the capacity of drivers. As to the former, the
Respondent concedes these to be its employees and asserts that it is willing to
bargain with the Union concerning their wages, hours, and other terms and conditions
of their employment. As to the latter, that is the lessor-nondrivers, the Union
disclaims any intention to represent these individuals.
Preliminary to a discussion of the questions thus presented, I would find at this
point that, assuming all or any of these individuals to be Respondent's employees,
the Respondent's position at the July 18 meeting constituted a clear-cut refusal to
bargain within the meaning of Section 8(a)(1) and (5) of the Act. Thus, it is
clear that at this meeting Respondent took the unequivocal position that it would
neither discuss or consider the Union's new proposals unless and until it received
an adverse court decision concerning the status of the individuals involved.
2 The letter began with a brief summation of the contract negotiations.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of course, the Respondent has, as it asserts, the legal right to take whatever posi-
tion it wishes while engaged in private litigation. But it hardly can be questioned
that Respondent's obligations under the Act continue notwithstanding its involvement
in other litigation. Under the preemption doctrine it is well settled that the Board
is vested with exclusive judisdiction in deciding all matters involving alleged viola-
tions of the National Labor Relations Act, as amended .3
By refusing to bargain with the Union on the grounds indicated above, the
Respondent has, in effect, challenged the appropriateness of the collective-bargaining
unit. In electing to rely upon its position as to the status of the individuals in
question it has acted at its peril; for if its position is declared to be erroneous under
the Act it has, by refusing to bargain with the Union, committed an unfair labor
practice within the meaning of Section 8(a)(1) and (5) of the Act4 Keystone
Floors, Inc. d/b/a Keystone Universal Carpet Company, 130 NLRB 4; Tom Thumb
Stores, Inc., 123 NLRB 833. Obviously the opposite result would be reached if
Respondent's position is correct.
E. Evidence as to the status of the owner-drivers and nonowner-drivers
The evidence pertinent to a determination of the status of the above individuals
as employees or independent contractors is largely undisputed. The parties intro-
duced in evidence a copy of the standard lease agreement. Additionally, testimony
on this subject was given by two drivers and certain of Respondent managerial em-
ployees, all of which is uncontroverted.5 From all of the foregoing, my findings
with respect to the parties' obligations under the lease agreements and the practices
of the parties outside of the agreements are set forth as follows: 6
The lease agreements provide that the Respondent shall have the exclusive use
and control of all vehicles leased to it and that such vehicles shall not be used for
the transportation of freight for other persons. In accordance with ICC regulations,
the leases are terminable by either party upon 30 days' written notice. Also in ac-
cord with ICC rules, the leased vehicles are required to bear the Respondent Com-
pany's name and the ICC certificate number.
The owner-lessors are free to purchase whatever model or make of truck they
choose and from whom they choose. Respondent does not participate in the financing
thereof. Trade-ins or any other disposal of equipment lie exclusively within the
option of the owners. As to the maintenance and repair of trucks, this is the personal
responsibility of the owners and they must bear all costs incidental thereto. Gaso-
line, tires, and other necessary upkeep equipment are purchased and paid for without
restriction by the owners.?
Public liability, property damage, and cargo insurance on all leased vehicles are
paid for by the Respondent, except that the liability insurance does not cover the
vehicles when not in use on company duty; but claims for breakage, shortage, damage
by water, and the like must be paid for by the owner. Comprehensive collision,
fire, and theft insurance are taken out and paid for by the owner. License tags must
be purchased by the owner but State and Federal identification plates are bought and
paid for by the Respondent Company. The lease provides that the owners park the
vehicles on the premises of the Company in Birmingham, Alabama, the home base,
"as and when requested by the Company to do so."
Respondent pays owners and owner-drivers for lease of the equipment only. This
is done on a percentage of gross revenue basis, the owner's percentage being 70
percent of gross revenue on all freight classified sixth class or higher and 75 percent
on all freight classified as seventh class or lower. The owner-drivers are not paid
separate compensation for the services of driving their trucks.
3 Building Trades Council v. Garman, 359 U S. 236; Marine Engineers Association et at.
v Interlake Steamship Co., et at., 370 U.S. 173.
4 This, of course, assumes also that the Union represents a majority of the employees in
the appropriate collective-bargaining unit, a matter which is discussed in this report
6I am cognizant that Sellers, when called as an adverse witness under Rule 43B, was
recalcitrant on at least one occasion when being questioned by counsel for the Charging
Party concerning the posting of seniority lists. However, this matter in itself is not dis-
positive of the issues herein. Careful weight has been given to all of the testimony in
this case , including the sworn testimony in other proceedings which the parties introduced
in evidence at the instant hearing.
6 The relevant terms of the contract between the Respondent and the Union will be
alluded to when appropriate.
7 At their option , the owners may purchase and charge gasoline to Respondent's gas
dealer credit accounts and later reimburse the Respondent therefor.
DEATON TRUCK LINES, INC. 1383
All prospective drivers, be they owner-drivers or nonowner-drivers, are required
to fill an employment application with the Company. Largely in accordance with
ICC rules, the Company verifies the individual's driving qualifications, including age,
driving skill, and experience, and his knowledge of English and ICC regulations.
Also in accord with ICC rules, the applicant is required to take a physical examina-
tion which is paid for by him. Included in these preliminaries is a driving test which
is given by qualified company personnel.
When an applicant passes the screening tests as aforesaid, a personnel file con-
taining records to this effect is set up by the Respondent and he is issued a card to
show that he is qualified to drive for the Company. Prior to making an actual run,
various of Respondent's personnel give brief instructional training to the qualified
driver as to safety procedures and as to Respondent's methods of operations, the
latter including the manner of dispatching, preparation of driver's logs, the handling
of shipping documents, and the like.
The Respondent's operations include both regular and irregular runs with the latter
constituting the bulk of Respondent's business. In regular runs, trucks are dispatched
in the order they appear on a "ready board" which is signed by the driver. The record
is somewhat vague as to what procedure is utilized in the assigning of trucks to the
irregular runs. In any event, from the record it is clear that trucks and drivers
must be ready for dispatch at all appropriate times. Thus the drivers (including owner
and nonowner-drivers) sign a "ready" list and they are assigned in the order their
names appear on such list. However, the driver whose name is on the list is not
obliged to take the load if the owner of the truck wishes to substitute another qualified
driver.8
The owner-drivers assigned to irregular runs have discretion to travel on whatever
route they wish to the delivery point as long as the deliveries are timely made. Owner-
drivers of more than one truck may also instruct their drivers as to the route to be
taken. The truckowners and their drivers may stop and rest for the night when and
where they choose.
Although Respondent maintains terminals in various cities within its operating
areas, loads are usually delivered to the consignee rather than to Deaton docks.
Upon delivery of a load the drivers are required to telephone the closest company
terminal so that instructions may be given concerning any return loads .9 Where
the deliveries are made in places not in proximity to company terminals the drivers
are encouraged to solicit whatever business they can "on their own" for the return
trip.
The record reflects that while as a general rule the drivers do not participate
in the unloading of trucks, there are some occasions when they do participate in this
work. In these latter instances, the driver may hire additional help at his discretion
and for this he is reimbursed by the Company for a cost not to exceed $6.10
The Respondent maintains two patrol cars manned by safety inspectors who patrol
the road to ascertain whether all drivers maintain proper speed and comply with ICC
safety regulations. In the event of such safety infractions the drivers are issued a
written warning notice, a copy of which is placed in the Respondent's personnel
files. In the event of a gross violation the driver may be stopped and warned on the
spot."
The drivers may take time off for short periods of time provided that other
drivers are made available to take their place. In the event of a longer period,
all drivers, including owner-drivers, must obtain a leave of absence approved by the
Respondent and the Union . 12 Unless the leave period is for an extended time,
the owner-driver could substitute another driver for himself.13
9 Testimony of Sellers in Civil Action No. 10135-S
e The drivers must call the Respondent's headquarters in the event of a breakdown or
other unusual occurrence which would interfere with normal delivery time. Such calls are
paid for by the truckowner.
10 This practice has been incorporated in the contract between Respondent and the
Union.
11 A driver could be removed on the spot if, for example , he were intoxicated.
12 Respondent posted a bulletin to this effect on May 9, 1960. This procedure is also
incorporated in the contract between Respondent and the Union.
13 James M. Sizemore, vice president and safety director for the Respondent, testified
that an owner's lease would be terminated if he decided not to haul freight for a longer
period, such as 6 months . "Otherwise," Sizemore testified, "if a man wants to take off
for a week, we tell him to get somebody else to drive but the way our business is now we
are not in a position to let any truck set up for a week or a month or anything else."
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On occasion the Company issues memorandums or bulletins, usually addressed to
"operators," which are posted on its bulletin boards. The bulletins introduced
in evidence include and pertain to the following: leaves of absences (as noted
heretofore); an "agreement" that management will not request drivers to enter strike-
bound premises; a notice reminding drivers that they should check in with the
Memphis terminal for loading instructions when in that area; instructions not to use
third chains in the loading of Johns-Manville pipe since this practice resulted in
damage to this material; 14 a notice dated July 6, 1961, requiring the operators to
attend a safety dinner; and, finally, a notice warning operators that they would be
subject to disciplinary action if they failed to report to the nearest terminal manager in
the event a delay en route would cause delay in delivery to the consignee.
In addition to these bulletins, the record reveals that the Respondent issues
warning notices or letters to the drivers for various ICC and company rule infrac-
tions. Numerous copies of such letters were introduced in evidence. The type of
warning most frequently issued is that pertaining to the drivers' failure to properly
maintain their daily logs which show the number of hours driven as well as the
different trucks driven by the respective driver. It is incumbent that these logs be
maintained, for the data contained therein must be compiled in monthly reports
which the Respondent is required to file with the ICC.15 Other warning letters refer
to such matters as delays in delivery, violations of safety rules (such as speed, turn
signals, etc.), and improper parking. Although the merits of the case are discussed
below, it is noted here that the General Counsel, in arguing that the warning notices
are indicative of an employee relationship, places stress upon a letter dated February 5,
1962, which the Respondent issued to one George Boyce warning him against any
repetition of "insubordination or interference with company property or business."
I would note first that the evidence does not reflect whether Boyd was a driver-owner
or a nondriver-owner, a matter which, as hereinafter indicated, is of no little im-
portance. Secondly, not only does the evidence fail to indicate the facts with respect
to the conduct involved, but insofar as the record is concerned this matter appears to
be an isolated incident and may well have been one of considerable aggravation.'6
We now turn to other aspects of the relationship between the parties involved.
As to withholding taxes and social security, these are paid for by the driver-owners
themselves, not by the Respondent.17 Moreover, the driver-owners who lease more
than one truck to the Respondent deduct these items for their own respective drivers.
This, then brings us to the point of stating the facts applicable to the relationship of the
nonowner-drivers with the lessor owners of the trucks and with the Respondent Com-
pany. As has been previously stated, all prospective drivers including owner and
nonowner-drivers must file an application with the Respondent and must be approved
by the Respondent before they are qualified to drive in Respondent's fleet. However
the actual hiring is done by the owner of the truck. Thus, when a driver files an
application with Respondent and it is approved, the Respondent will introduce him
to the truckowner. The truckowner is not required to hire any such applicant but
is free to decide this matter for himself. It is undisputed that the truckowner must
give his approval before any driver can drive for him. On the other hand, any
applicant brought in by the truckdriver must meet Respondent's qualifications before
the owner can hire him.
Nonowner-drivers of such leased equipment are paid by the owner of the truck.
All such drivers are paid the standard rate consisting of 20 percent of gross revenue
and 25 percent on overwidth loads or freight carrying premium rates-18 In addition,
the individual owners are free to pay the drivers extra compensation, such as a bunk
allowance, if they wish.
11 But it is noted that under the lease agreement the owner is responsible for damage to
cargoes from improper loading.
15 ICC revised Rules and Regulations, Section 159 9. In this connection it was Seller's
unrefuted testimony that: "Since May we have received a letter from the Interstate Com-
merce Commission complaining about the over hours on logs and violations of logs . . . "
10 In its brief the Respondent set forth facts which it alleges were involved in this in-
cident Since this matter was not litigated, the facts as therein set forth cannot be
accepted as evidence.
17 Respondent deducts these items only for the drivers of its own trucks, these being its
conceded employees
18 The agreement between the Union and the Respondent provides that "owners of leased
equipment agree drivers of said equipment shall be paid a minimum [of the rates set
forth above]"
DEATON TRUCK LINES, INC. 1385
Finally, as to termination of the nonowner-drivers, the record is clear that these
drivers may be discharged either by the Respondent or by the owners of the leased
agreement.19
F. Conclusions as to the lessor driver-owners
The question of employee versus independent contractor relationship has been
considered by the Board and the courts in numerous cases, a particularly large body
of which involves the trucking industry. It would unduly burden this report to
attempt to distinguish the fine lines upon which the bulk of the cases on this subject
have been decided. However, practically all cases decided since 1946 look to the
Supreme Court's decision in the Silk case 20 as the governing guideline decision in this
field. In that case the Court laid down the following criteria which has become a
familiar quotation: - r ---<:!:
Probably it is quite impossible to extract from the statute a rule of thumb
to define the limits of the employer-employee relationship. The Social Security
Agency and the courts will find that degrees of control, opportunities for profit
or loss, investment in facilities, permanency of relation and skill required in
the claimed independent operation are important for decision. No one is con-
trolling nor is the list complete.
The facts in the Silk case, as evidenced by the following quoted portions from the
Court's decision, bear a striking similarity to those in the instant case:
The system was based on contracts with the truckmen under which the truckmen
were required to haul exclusively for the respondent and to furnish their own
trucks and all equipment and labor necessary to pick up, handle and deliver
shipments, to pay all expenses of operation, to furnish all fire, theft, and
collision insurance which the respondent might specify, to pay for all loss
or damage to shipments and to indemnify the company for any loss caused it
by the acts of the truckmen, . . . and employees, to paint the designation
"Greyvan Lines" on their trucks . . . to personally drive their trucks at all
times . . . (except in emergencies, when a substitute might be employed with
the approval of the company), and to follow all rules, regulations, and instruc-
tions of the company. All contracts or bills of lading for the shipment of
goods were to be between the respondent and the shipper. The company's
instructions covered directions to the truckmen as to where and when to load
freight. If freight was tendered the truckmen, they were under obligation
to notify the company so that it could complete the contract for shipment in
its own name. As remuneration, the truckmen were to receive from the com-
pany a percentage of the tariff charged by the company varying between 50
and 52% and a bonus up to 3% for satisfactory performance of the service.
The contract was terminable at any time by either party. These truckmen
were required to take a short course of instruction in the company's methods
of doing business before carrying out their contractual obligations to haul.
The company maintained a staff of dispatchers who issued orders for the
truckmen's movements, although not the routes to be used, and to which the
truckmen, at intervals , reported their positions. Cargo insurance was carried
by the company.
Under the foregoing facts the Court held the driver-owners of the trucks to be
independent contractors. The total circumstances here being so closely analogous
to those considered in the decision of the Supreme Court, I think it is clear, and I
find that the driver-owners who lease trucks to the Respondent in the instant case
are independent contractors, not employees of the Respondent. It might be added
that trucks of suitable power to haul Deaton's cargoes costs from $7,500 up if
gasoline powered, and from $15,000 up if diesel powered. In this connection I
concur with and regard as also applicable here the statement by the Trial Examiner
in the Lyon Van & Storage case,21 who, in commenting on the Silk case, stated:
Applying the criteria of the Court and the Board to the undisputed facts of
the contractual relationship of the owner-drivers of the Company here, I cannot
agree that these owner-drivers, who supply equipment of the approximate value
of $15,000 each , are in the same category as the unloaders of coal who provided
1D It is the undisputed testimony of Sellers that he knew of numerous instances of where
lessor-owners discharged owners who worked for them.
20 Greyvan Lines, Inc. v. Harrison, 156 F. 2d 412 (C.A. 7), affd. sub nom. U.S. v. Silk,
331 U. S. 704.
21 Lyon Van .f Storage Co. and Lyon Van Lines, Inc., 123 NLRB 734.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picks and shovels to the job and who gained their livilihood exclusively "from
the work of their hands and these simple tools." On the contrary it seems
crystal clear to the Trial Examiner that the owner-drivers in the instant case
are similar to the owner-drivers in the Silk and Greyvan cases, and that they
must be held to be independent contractors.
Indeed, the driver-owners who lease more than one truck to the Respondent in
this case have a substantially greater investment at stake than did those in the case
cited above.
In the Lyon Van case, supra, the drivers were treated as holding a dual capacity,
being employees as to the tasks of driving the trucks and being independent con-
tractors as to the lease of the equipment which each furnished. In its brief the
Union argues that "in the instant case the drivers, at the very worst, should be
viewed in such `dual capacity.' " However, the facts in the Lyon Van case upon
which this holding was premised are materially different from those in the case at
bar. Thus, in the Lyon Van case the principal basis for holding the driver-owners to
be employees as well as independent contractors was premised upon the fact that
they were paid two types of compensation, one being computed for the payment
of labor (the driving function) pursuant to a contract between the Company and the
Union, the other compensation being for the rent of the equipment as fixed by the
terms of the lease agreement. As heretofore noted, the owner-drivers in the instant
case are compensated only on a percentage of revenue basis as set forth in the
lease agreements 22 Clearly, there is no provision that the owners be paid separately
for their driving services. Accordingly, the Union's argument as aforesaid must be
rejected.
G. Conclusions as to the non-owner-drivers
My conclusions with respect to the status of the individuals who do not own or
lease any trucks to the Respondent but who serve solely in the capacity of drivers
may be stated briefly. It will be recalled that the drivers in this category can be
hired only upon the condition that there is joint approval by the Respondent and
by the particular lessor whose trucks they drive. Similarly, these drivers can be
discharged or otherwise terminated by either the lessor or by the Respondent.
Clearly, the authority to control the employees' hire or tenure of employment is
one of the basic and perhaps one of the most significant attributes of an employment
relationship. Since these functions are jointly vested in the control of both the
Respondent and the lessor-truckowner, I find and conclude that Respondent and
the lessors are coemployers of the nonowner-drivers 23 As a coemployer, Respond-
ent was bound to bargain with the Union for these employees.
H. The alleged Section 8(a)(5) violations
In accordance with all of the foregoing, it is found that the appropriate collective-
bargaining unit consists of all employees of the Respondent, including yard em-
ployees and nonlessor truckdrivers, but excluding lessors and lessor truckdrivers,
office clerical employees, professional employees, guards, and supervisory employees
as defined in the Act. It is further found that the Union at all relevant times has
represented a majority of Respondent's employees in the said appropriate unit.24
Accordingly, I find that the Respondent, by its actions and conduct on and after
July 18, 1962, all of which have been described under the headings "The 1962 nego-
tiations" and "The issue," has failed and refused to bargain with the Union in viola-
tion of Section 8(a)(5) of the Act, and, derivatively, of Section 8(a)(1) thereof.25
Finally, the complaint also alleges that Respondent violated Section 8(a)( I) and
(5) by unilaterally soliciting its truckdrivers to execute agreements declaring and
^I regard it immaterial that the existing method of remuneration was incorporated in
the agreement between the Respondent and the Union. The record is clear that in the
past there has been no bargaining between the parties concerning the method or amount
of compensation as fixed by the lease agreement.
"See Highway Truck Drivers and Helpers, Local 107, International Brotherhood of
Teamsters, etc. (Sterling Wire Products Company), 137 NLRB 1330; Local No. 24, Inter-
national Brotherhood of Teamsters , etc. (A.C.E. Transportation Co., Inc ), 120 NLRB
1103, set aside 266 F. 2d 675 (C.A.D.C.).
ai It is unrefuted that as of the time of the hearing these employees were members of
the Union as evidenced by monthly dues checkoff and health and welfare payments to
the Union.
ffi In new of my disposition of this case, it Is unnecessary to pass upon the Respondent's
argument set forth in its brief under the heading "The Union is not competent to represent
the unit sought in this case."
DEATON TRUCK LINES, INC. 1387
providing that their status be that of independent contractors rather than
employees . However, since the proposed new lease agreements were sent only to
the lessors whom I have found to be independent contractors, Respondent was free
to take this action if it so chose 2e Accordingly, I shall recommend that this allegation
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with its business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has failed and refused to bargain with the Union
as the statutory representative of its employees in an appropriate unit , I shall rec-
ommend that Respondent be ordered to bargain, upon request, with the Union and,
if an understanding is reached , to embody such understanding in a signed agreement.
In view of the nature of the unfair labor practices herein found, it is further rec-
ommended that the Respondent cease and desist from infringing in any manner
upon the rates guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and the Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. All employees, including yard employees and nonlessor truckdrivers, but ex-
cluding lessors and lessor truckdrivers, office clerical employees, professional em-
ployees, guards, and supervisory employees as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining.
3. On or about July 18, 1962, and at all times since, the Union has been, and
now is, the exclusive representative of all employees in said unit for the purposes of
collective bargaining.
4. By refusing to bargain collectively with the Union as such collective-bargaining
representative, and thereby interfering with, restraining, and coercing employees in
the exercise of their rights under the Act, Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Sections 8(a) (5)
and (1) and 2(6) and (7) of the Act.
[Recommended order omitted from publication.]
2e While not pertinent to this finding, I might note that the Board has held that any
attempt to label a relationship under a contract is not controlling . Keystone Floors, Inc.
d/b/a Keystone Universal Carpet Company, supra; Toledo Scale Company, 82 NLRB 826.
O