Dixie Transport Co.

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1243 (N.L.R.B. 1975)

DIXIE TRANSPORT COMPANY
Dixie Transport Company and Truck Drivers, Ware-
hDusemen & Helpers Local Union No. 512,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Petitioner. Case 12-RC-4429
June 30, 1975
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer William E.
Franke. Following the hearing and pursuant to
Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
by order of the Regional Director for Region 12, this
case was transferred to the National Labor Relations
Board for decision. Thereafter, briefs were filed by
the Petitioner and the Employer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is an organization claiming to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The Union has petitioned for a unit of all the
truckdrivers operating out of the Employer's Jack-
sonville, Florida, terminal. The Employer maintains
that it does not employ any truckdrivers, but rather
uses only independent contractors to haul its trailers.
There is no history of collective bargaining for any of
the employees sought by the Petitioner, and no labor
organization seeks to represent the employees in a
more comprehensive unit.
Dixie Transport Company (hereinafter Dixie or
Employer) is an interstate transporter of automo-
' Prior to the inauguration of the present form sometime after February
2, 1972, the Employer had used another form which differs in some
particulars from the newer one, including the lack of an explicit statement of
intent to create a relationship of independent contractor with the operator
218 NLRB No. 187
1243
biles, with its only terminal in Jacksonville, Florida.
It operates under an authority granted by the
Interstate Commerce Commission (ICC) as a com-
mon motor carrier, hauling new automobiles from
the port of Jacksonville to new-car, dealers located
throughout the States of Florida, Georgia, Tennes-
see, Kentucky, and Indiana. Approximately 40
drivers operate out of the terminal, using their own
tractors which they lease to the Employer. The
Employer maintains a fleet of trailers which are
assigned to the drivers to use with their tractors in
hauling new cars for its customers.
The Employer asserts that the relationship between
it and the drivers is controlled by a written
agreement executed with each driver, which by its
terms describes the drivers as independent contrac-
tors. The agreements presently in effect,' entitled,
"Motor Vehicle Operator's Agreement," provide for
the leasing of the operator's equipment to the
corporation (Dixie) for its exclusive use in its
transportation business.
By the terms of the new lease, the operator agrees,
inter alia, to operate and maintain his vehicle for the
Corporation; to paint it the Corporation's colors; to
abide by all pertinent Department of Transportation
(DOT) safety regulations; and to follow the general
instructions given by the Corporation as to the
manner and method of hauling automobiles for its
customers. The lease also provides that the operator
will be compensated according to a fixed percentage
of the revenue generated by his equipment, which the
Corporation will remit after billing the customer. A
provision sets the term of the lease as 1 year, which is
automatically renewed on the anniversary of execu-
tion, unless terminated by mutual consent, operation
of law, or violation of its terms and conditions.
The Employer's operation functions on a first-in,
first-out basis. As customers contact Dixie, their
loads are put "on the board." When a driver returns
to Jacksonville after making a delivery, he calls in
and his name is placed on a list. The drivers are then
contacted by the dispatcher and choose their next
load from those on the board, in the, order that their
names appear on the list. The record shows that some
loads have been designated by customers as rush
loads, to be given preferential treatment. According
to the policy of Thomas, who was terminal manager
prior to the present manager, Schaefer, a driver who
refused such a load, or the last load on the board,
was put on suspension for 3 days. The record also
contains a memo from Thomas to all drivers
instructing them not to call in for priority positions
and the inclusion of a clause stating that the leased equipment "shall be
operated only by the employees of the Company " Terminal Manager
Schaefer testified that instituting the new forms did not 'change the
operation of the Employer' s business in any way.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to actually arriving in Jacksonville and warning
that those caught doing so will be subject to
immediate discharge. Although Schaefer testified
that many of the more restrictive aspects of Thomas'
personnel policy have changed since he has taken
over the terminal, the record shows two or three
incidents where he did discipline drivers for various
infractions of Dixie's rules.'
When a leased vehicle is under dispatch for Dixie,
the driver and cargo are covered by an insurance
policy provided by Dixie at no expense to the drivers.
While ICC regulations require all licensed motor
carriers to have such insurance to protect the public,
Dixie's policy limits are higher than required by law.
Although Dixie carries insurance covering damage to
cargo, the lease agreement provides that the driver is
responsible for all losses caused directly or indirectly
by his negligence. In practice, however,-this provision
has always been ignored. Prior to April 1, 1973, a
driver was held liable for only the first $25 of damage
and Dixie covered the rest with its insurance, without
regard to negligence on his part. After April 1, 1973,
Dixie unilaterally abandoned this policy in favor of
charging no damage loss to the driver and instituted
the practice' of offering substantial cash prizes to the
four drivers having the least amount of damage
claims . A year later Dixie, again unilaterally,
abandoned the latter practice which proved too
costly and reinstituted the previous policy.
Although all of Dixie's drivers do own their own
tractors, an advertisement placed in a Jacksonville
newspaper by Dixie in February 1974 seeking new
drivers, referred to Dixie as an equal opportunity
"employer" and indicated that it "prefer[s ]" that an
applicant own his own tractor but did not make such
ownership a necessary condition for employment.
The lease agreement requires the drivers to carry
"bobtail" insurance at their own expense, to cover
their vehicles when in use for any other purpose.2
In making our determination of the status of these
truckdrivers, we are guided by the common law
right-of-control test, as to whether the Employer
exercises control over the means used by the drivers
to achieve the desired ends or merely the ends to be
achieved. We apply this test to all the relevant
evidence, and do not consider any one factor as
determinative.
Dixie contends that the drivers at issue are not
employees because they act independently under
their contract when hauling for Dixie, with little or
2 The purpose of this insurance is to protect the Employer, whose
insignia appears on the vehicles , when it is taken for repairs or for private
use of the operators . The same provision in the lease cautions that such
insurance protection does not indicate a willingness by the Employer to
allow use of the vehicle for any other business pursuits.
3 DOT regulations require an applicant to submit a written application
with the motor carrier and establishes certain information which must be
no control by the Company. In support of its
position Dixie cites Portage Transfer Company, Inc.,
204 NLRB 787 (1973), and other recent cases,
wherein the Board has found various owner-operator
truckdrivers to be independent contractors and not
employees, arguing that the similarities in the facts
should control the conclusion we make in this case.
We recognize that there are similarities between the
Portage case and the instant case which show a
degree of freedom in some aspects of how these
drivers perform their jobs. Trip leasing, for example,
is allowed, although not usually practiced because of
limited opportunities in the area. Also, Dixie, like the
employer in Portage, allows the owner-operators to
set whatever payment they wish for a substitute
driver. However, this right is somewhat circum-
scribed by the fact that in its lease Dixie reserves the
right to approve all such drivers before they are
allowed to take out company loads.
As in all such cases involving operations subject to
ICC and DOT regulations, the Employer is required
by law to exercise control over such things as safety
checks on equipment and drivers; physical health of
drivers; identifying markings on vehicles; and
qualification of drivers through prescribed applica-
tion forms.3 Dixie asserts that inasmuch as it is
required by Federal law to exercise certain controls
over the drivers in issue here, such factors should not
be considered by the Board in determining their
status as independent contractors or employees.
While the Board has held that these factors are not in
themselves determinative of the drivers' status, they
do indicate a degree of actual control exercised by
employers over how drivers perform their work and
as such, regardless of where the incentive for
exercising such control emanates, are relevant in our
inquiry with respect to application of the National
Labor Relations Act.
Moreover, we find, contrary to the Employer, that
these factors are supplemented by others which
establish extensive Employer control over the drivers
and require the conclusion that they are employees
of the Employer. We rely particularly on the
following facts: (1) Dixie controls the allocation of
loss due to cargo damage claims ; (2) Dixie sets the
percentage of revenue to be paid the drivers and has
unilaterally altered these on occasion; (3) Dixie
provides and pays for a comprehensive health
included . The regulations also permit the carrier to require additional
information . Dixie's application for "employment" forms do require much
information in addition to that which is mandatory , including extensive
information on the applicant's family and personal interests, as well as
information concerning typical employer-employee matters, such as
whether the applicant has ever filed a claim for workmen's compensation.
DIXIE TRANSPORT COMPANY 1245
insurance policy for its drivers and their dependents,
as well as workmen's compensation insurance; 4 (4)
Terminal Manager Schaefer has instituted a practice
of permitting drivers a "leave of absence," during
which time the driver suffers no interruption of his
seniority; 5 (5) Dixie has made supplies available to
drivers at its cost, payments for which are deducted
from their paychecks; (6) Dixie has made cash
advances to drivers for personal and operating
expenses and deducted payments out of their
paychecks without charging for bookkeeping or
interest; (7) both the previous and present managers
have disciplined drivers for infractions of the
Employer's rules ; (8) in recruiting its so-called
independent contractors, Dixie does not even require
that they own trucks when first applying to Dixie for
work; and (9) Dixie requires that drivers paint their
tractors in the standard corporation colors and
4 we note in this regard that a Florida law which requires this insurance
for employees specifically exempts independent contractors from coverage.
See Florida Statutes , Title XXIX , Sec. 440.02(2).
provides decals displaying its corporate name and
operating rights which the drivers must attach to
their tractors.
In view of the foregoing, and on the basis of the
entire record, we fmd that the owner-operator
truckdrivers in question are employees of the
Employer within the meaning of the Act, and that
the following employees constitute an appropriate
unit for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All truckdrivers employed by the Employer at its
Talleyrand Address, excluding all other employ-
ees such as office, clerical, guards, salesmen, and
supervisors as defined in the National Labor
Relations Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
5 Dixie uses seniority as the basis for assigning its trailers to the drivers,
inasmuch as some trailers are newer and apparently more desirable than
others.