Local 814, Teamsters

National Labor Relations Board - Board Decisions

Jan 8, 1974

208 N.L.R.B. 184 (N.L.R.B. 1974)

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 814, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca (Santini Brothers, Inc.) and Karl Leib, Jr., Esq.
Local 814, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Ameri-
ca and Santini Brothers , Inc. and Karl Leib, Jr.,
Esq. Cases 2-CC-1247 and 2-CE-52
January 8, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On June 29, 1973, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent Union filed
exceptions and a supporting brief, the Charging
Party filed a brief, and the General Counsel filed a
brief and a reply brief.
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 considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent Union, Local 814,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives; and Respondent Com-
pany, Santini Brothers, Inc., New York, New York,
its officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order.
1 As the Board deems it unnecessary that all five of its Members decide
the issues involved herein , the Charging Party's motion to that effect is
hereby denied.
2 The request of the Charging Party and Respondent Union for oral
argument is hereby denied as the record , exceptions , and briefs adequately
present the issues and positions of the parties.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: The
case involves the so-called "secondary boycott" and "hot
cargo" provisions of the National Labor Relations Act (the
Act).
Santini Brothers , Inc. (Santini ), with its principal base in
New York City, is engaged in the local and long distance
moving of household goods, and in the local moving of
office furniture and equipment, called commercial moving.
For its local household and commercial moving, Santini
uses its own moving vans-tractor-trailers and trucks-and
its own employees including drivers who are members of
the Union, under a union contract with an association of
New York City moving companies of which Santini is one.
For its long distance household moving, Santini has
contracted individually with a number of owner operators
of tractors who, using mostly Santini-owned trailers,
perform the service of loading, hauling, and unloading the
household goods of each of the shippers from the
household of origin to the household of destination for a
percentage of the moving charges, established under
Interstate Commerce Commission (ICC) tariffs, paid by
the shipper to the ICC authorized carrier, Santini.
Under article 24 of its current collective-bargaining
contract (1971-74) with the association of moving compa-
nies, the Union has taken the position that the long
distance owner-operators are employees, called contract
employees in the article, required under the union-security
clause to become and remain union members. When, in the
fall of 1972, none of the owner-operators had joined the
Union and Santini had taken no measures to compel them
to join, the Union caused a work stoppage at Santini's New
York facilities on October 30, 1972. The work stoppage
was lifted on agreement of Santini to undertake to obtain
signed union membership applications from the owner-
operators and to refuse to "load" those who did not sign,
on Union threat of further work stoppages if Santini did
not comply. Some owner-operators signed up; but others
refused to join the Union, and Santini in turn refused to
allow them to load in New York.
Unfair labor practice charges were filed with the Board
on November 8, 1972, on behalf of several of the owner-
operators based in Florida, and a complaint issued January
31, 1973.1
The complaint charges (1) that, in violation of Section
8(e) of the Act (text infra ), the Union coerced Santini to
enter into, and that both the Union and Santini main-
tained, an unlawful (hot cargo) agreement to force
independent contractors, namely the owner-operators, to
become and remain members of the Union, and to require
Santini to cease doing business with the owner-operators
who would not join; and (2) that in violation of Section
8(b)(4)(i) and (ii)(A) and (B) (the secondary boycott
provisions, text infra ), the Union induced and encouraged
employees of Santini to engage in a work stoppage on
October 30, 1972, and threatened to cause additional work
i On January 22, 1973, the Regional Director petitioned the United
States District Court for the Southern District of New York for an
injunction under Sec 10(1) of the Act to restrain the Union and Santini
from , among other things, compelling owner-operators to become union
members as a condition for hauling goods from and to New York City, and
to otherwise maintain the status quo ante Following the taking of testimony
on February 7, 9, and 14 , 1973, and oral argument . the court issued a
temporary injunction on March 22. 1973, pending disposition of the instant
case, Danielson v Local 814 IBT and Santini , 73 Civ 325 (Ward J, March
22, 1973).
208 NLRB No. 22
LOCAL 814, TEAMSTERS 185
stoppages, in order to force Santini to enter and give effect
to the unlawful agreement prohibited by Section 8(e) of the
Act, to force the independent contractors to become and
remain members of the Union, and to force Santini to
cease doing business with the independent contractors who
would notjoin the Union.
The Union's defense is that, contrary to the position of
General Counsel, Santini, and the Charging Party,2 the
owner operators are not independent contractors but are
employees of Santini, required by the union-security clause
of the union contract to become and remain members of
the Union as a condition of employment with Santini, and
subject to discharge for failure to join the Union and pay
dues.3 The Union claims that the additional relationship
between the owner-operators and United Van Lines, Inc.,
an ICC authorized nationwide carrier, for whom the
owner-operators also perform household moving services
under contract between Santini and United Van Lines,
Inc., provides added evidence of the employee status of the
owner-operators. If the owner-operators are employees of
Si.ntini, then the Umon committed no hot cargo or
secondary boycott violations respecting them.
However, the Union further argues, if the owner-opera-
tors are not employees, the Union's conduct through
contract and work stoppage, was lawful primary action to
recapture work of the bargaining unit employees lost (the
Union claims) to the independent contractors, and not
unlawful secondaiy action under the secondary boycott
and hot cargo provisions of the Act.
The defense has framed the two principal issues to be
decided, namely, are the contracting owner-operators
independent contractors or employees of Santini; and, if
they are independent contractors, is the Umon nevertheless
free to take contract and strike actions directed at Santini,
to compel the independent contractors to join the Union or
require Santini to cease doing business with them if they
refuse, as a means of recapturing for the bargaining unit
employees work allegedly lost to the independent contrac-
tors.
The case was tried in New York City, March 22, 23, and
24, 1973. By agreement of the parties, the record includes
the 3 days' testimony in February 1973 before the United
States District Court, see fn. 1, supra. Also, with agreement
of the parties, the Union was permitted to include in the
record, after the trial concluded March 24, 1973, additional
documents from the files of United Van Lines, Inc.
(United), which documents were not available at trial. In
response to a subpoena by the Union, United had
representatives at the trial, one of whom testified at length
and produced various documents, but United was not a
party to the case.
General Counsel, the Union, and the Charging Party
have filed briefs. Santini has not filed a brief, but orally
stated its views at the opening of the trial, to wit, the
owner-operators are independent contractors and not
Santini employees, and that Santini was taking no position
on the alleged violations of the Act.
Upon the entire record in the case,4 including my
observation of the witnesses and consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Santini is a New York corporation with offices and
places of business in the city and State of New York,
Miami, Florida, and Chicago, Illinois, engaged in provid-
ing local and interstate moving services and related
services.
In the representative period of a year prior to the filing of
the complaint, Santini performed services valued in excess
of $1 million, of which services valued in excess of $50,000
were derived from its interstate trucking operations.
As it admits, Santini is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act , as the parties admit.
11. THE UNFAIR LABOR PRACTICES
A. The Business of Santini
Santini is in the business of moving household goods,
moving office furnishings and equipment called commer-
cial moving, and of providing packing and related services
for foreign shipment or export of goods.
Santini's base is New York City. It has an office and
terminal on Jerome Avenue and a fine arts division on 49th
Street. Its export division is in Maspeth, New York; and,
principally for the promotion of its long distance moving to
and from New York and other parts of the country, Santini
has established branch offices in Miami, Florida, and
Chicago, Illinois.
In terms of hauling, the moving industry of metropolitan
New York City has developed three operational categories:
(1) local, comprising New York City and a distance outside
within a (rough) radius of 100 miles; (2) short haul or local
short haul, comprising distances between 100 and 500
miles of New York City; and (3) long distance, all hauling
beyond 500 miles of New York City.
Santini which is one of the larger, if not largest, of the
New York City moving companies, engages in all three
categories of hauling, although it does very little short haul
work. According to Leo Santini, executive vice president
for domestic operations, the company's local household
moving in the 10-year period 1962-72 declined greatly to
the point of producing only about $100,000 to $200,000
annual revenue; whereas local commercial moving multi-
plied 50 times or better in the 10-year period, producing $2
million in 1972.
2 The complaint erroneously spells the Charging Party's name "Lieb "
3 In this connection, following the filing of the unfair labor practice
charges, the Union requested Santini that it "discharge" 13 named owner-
operators who had failed to pay union dues Santini did not terminate its
contracts with these 13 owner-operators.
4 General Counsel has moved, on notice to the parties, for several
transcript corrections, which have not been objected to and which are in
order While there are a number of other corrections that might have been
suggested on all sides, since the correct intendment of the language is fairly
ascertainable from the context in which the errors appear, I have limited the
corrections to these proposed by General Counsel [Corrections here set
forth are omitted from publication.]
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The local moving, both household and commercial, is
done by direct employees of Santini. The drivers and
helpers are members of the Union.
Santini's revenue from long distance moving of house-
hold goods has also experienced a dramatic growth since
1962, according to Vice President Santini, from a position
of losing money on long distance moving prior to 1962. In
that year, Santini began contracting as an experiment with
owner operators of tractors for the loading and hauling of
household goods in Santini trailers and delivery to the
households at the long distance destinations. According to
Vice President Santini, their New York competitors had
already been doing this profitably, and Santini was the last
major New York company to enter into such contracts.
The 1962 experiment was successful, said Vice President
Santini, and the company increased its contracting until by
the beginning of 1967 all long distance moving was done
for Santini by contractors. Vice President Santini testified
that the changeover in the 1962-66 period came about
easily, and involved no company pressure, because, earlier,
drivers had left Santini to go into contracting with
competitors, and other drivers were eager to try, since the
contractors made more money (out of the commissions or
percentages of moving charges even though paying
expenses) than employees (on hourly wages).5 In addition,
among older drivers and some others, there was a
reluctance to continue or to begin to engage in over-the-
road driving that meant absences from home, and among
some there was a desire to get out of driving altogether;
and for these employees, new jobs with Santini opened up
in the growing field of commercial moving.6
The period 1962-72 showed a big growth in long
distance moving revenues for Santini, particularly in the
second half, 1967-72. Prior to 1956 Santini did all of its
booking of moves at the New York office and got little
return haulage to New York, or elsewhere, compared to
what it carried from New York to one of its most
important long distance destinations, Florida. In 1956,
Santini opened a branch office in Miami seeking to
improve its return bookings. The going was slow at the
start, said Vice President Santini. Revenue in long distance
moving from Florida in 1956 totalled only $6,000.
However, he said it caught on after a time, and the growth
was dramatic (his language). In 1962, long distance moving
revenue from Florida rose to $51,000, 1966 produced
$302,000, and 1972 went to $820,000. Other revenue was
generated, mostly attributable to the long distance mov-
ing,7 so that the 1966 carrier operation from Florida
produced a total of $483,000 or about one-fifth of the total
New York-Florida revenue of $2,523,000, and the 1972
carrier operation from Florida rose to $1,381,000 or almost
two-fifths of the total 1972 New York-Florida revenue of
$3,608,000.
5 Vice President Santini testified that, at the start in 1962, Santini gave
some financial assistance in the form of loans to enable a few of its drivers
to purchase equipment to convert to contracting, but that such assistance
was limited only to former employees, and involved help in financing only 5
or 6 tractors out of the total equipment owned by the 55 to 60 contractors
with whom Santini has dealt since 1962 At the time of the trial, he said, all
loans for equipment had been paid off by the contractors involved
6 An interesting example was the Union's secretary-treasurer, Charles
Martelli, who became a full-time union official in 1965 Previously, for 14
Vice President Santini testified that Santini is an
interstate carrier that has operating rates authorized by the
Interstate Commerce Commission (ICC) for 28 states. It
does not operate as Santini outside those 28 states. When
its vans go beyond the 28 states, they do so in relationship
and pursuant to contract arrangements with the national
carrier, United, which enjoys nationwide authorization
from ICC for carnage of household goods. Santini, like
several hundred other moving companies throughout the
country, is an agent or franchise representative of United,
booking long distance moving business, providing local
services of packing and storage, and providing the
equipment and personnel for loading, hauling, and
unloading the household goods. Santini provides the
moving equipment and personnel by making available to
United, under lease arrangements, the equipment and
moving services that Santini has contracted for from its
contractors. The leases (designated "permanent" for year
round, "master" for intermittent, and "peak" for seasonal),
though they differ as to the degree of use of the equipment
on United's papers, do not indicate or contemplate any
change in relationship between Santini and its contractors
or between Santini and its employees, and expressly
declare that any personnel provided by the franchise
representative (Santini) shall not be considered employees
of United (Exhs. U-3 and -4).
In this connection, as testified to by Earl Freitag,
United's vice president for administration, United has no
direct employees who are drivers for it. Apart from about
28 to 30 contractor drivers who have contracts directly
with United, according to Freitag, the bulk of the drivers
are the owner operators of the equipment contracted to
Santini and other franchise representatives and leased by
them to United. (In some instances where a contractor
owns more than one tractor, or is not driving what he
owns, the driver is a person or persons employed by
him-see testimony of Thomas Wolfe regarding his
relationship to contractor Earl Harris.) In no case, said
Freitag, does the owner-operator or driver under contract
with Santini have any contract directly with United.
Santini hauls (always by its contractors) throughout the
United States for United, said Vice President Santini. It
also books moves for United, some of which it hauls as a
United agent and most of which is hauled by other United
agents. Santini's New York office was the No. 2 booker in
1972 (it previously had been No. 1) of the 500-600 offices
in the country that book for United, and Santini's Miami
and Chicago offices also account for substantial bookings.
In 1972, out of Santini's total revenues of $9 million, about
$1 million was derived from bookings and haulings for
United (approximately half from haulings, and the other
half from bookings and related sources) .8
As already indicated, since 1967 Santini has performed
years he had been a Santini employee By his own account, in the period
1951-56 he was a helper and local driver, in the period 1956-62. he drove
long distance, and in 1962, and continuing until he became a union official
in 1965, he became a layout man and a foreman in commercial moving
7 Vice President Santini noted a study showing that every $100 of long
distance line haulage generated $40 of accessonal revenue-in packing,
unpacking, storage, etc
8 Vice President Santini testified that on United bookings for which
Santini acts as hauling agent, Santini receives 70 percent of the hauling
(Continued)
LOCAL 814, TEAMSTERS
all of its long distance moving (either on Santini or United
bills of lading) through the instrumentality of the owner-
operators or owner-drivers or contract drivers (as they are
variously called) of the power equipment (tractors) leased
by them to Santini. In 1972-73, according to Vice
President Santini, there were 24 such owner-operators or
drivers under contract with Santini. While, based on
bookings, Santini was entitled to have had 9 or 10 vans,
operated by such contract drivers, under permanent lease
to United; meaning continuously in United's operation
throughout the year, Santini was 2 or 3 short and had only
6 or 7 under permanent lease. The remainder of the long
distance equipment and drivers were under master lease
arrangements (except for a few who moved only intra-
Florida), which allowed for an occasional United haul,
usually a one-way outgoing or back haul, and some few
were under peak load lease which called for continuous use
on United bills of lading in a peak period.
B. Union Relationships
Santini is one of about 300 moving and storage
companies of greater New York City who comprise 6 trade
associations known collectively as the Moving and Storage
Industry of New York, N.Y. (Industry). Since the 1930's,
the Industry has bargained for the employer members as a
whole with the Union, and entered into successive
contracts which have provided the continuing contract
relationships between the Union and the employer mem-
bers of the associations.
According to Herman Bader, president of Bader Broth-
ers Van Lines, an independent interstate carrier (independ-
ent meaning not an agent for a national van line such as
United), and a member of the Industry negotiating
committee for the past 18 years, there are about 20
companies among the approximately 300, who do any
significant amount of long distance moving out of or into
New York City. These 20 companies are among the largest
of the New York companies and all have contracted their
long distance moving to owner-operators .9
Bader Brothers was one of the first of the approximately
20 New York moving companies who are in long distance
moving to use contractors for its long distance moving,
starting in 1948, and Santini was the last of these New
York companies to convert to the contracting method,
starting in 1962, completed by 1967. At the time of the
1971 union contract negotiations, according to President
Bader, there were (and still are) a total of between 250-300
owner drivers who had contracted with New York City
moving companies for long distance moving. In contrast,
for the total Industry there were (and still are) about 1,800
revenue (out of which come the contractors' percentages for their work)
For bookings which it does not haul, Santini receives a 20 percent booking
commission, and if the order it places did not originate with Santini it splits
part of the booking commission with the originator In addition there are
some revenues derived by Santini from United shipments that may come
into or through Santini's warehouse
9 Bader testified that, apart from the 20 companies engaging in the long
distance moving, there are a few smaller companies that go into New
England, within a 500-mile radius of New York City, the so-called short
haul These companies , said Bader , are not geared up for the real long
distance work (beyond 500 miles of New York City) and use employees
under the union contract for short haul They seldom go beyond the 500-
187
regular full-time employees, and an additional 1,200 part-
time employees, the latter fact attributable to the seasonal
nature of the moving business. Of the 1,800 regular full-
time employees, approximately 1,000 are employed by the
handful of the largest companies, of which Santini is one,
among the 300 companies who comprise the Industry.
The Union's concern about use of the owner-operator
method of moving first became visible in the 1962-65
contract between the Union and the Industry (Exh. GC-3).
Article 12(g) of that contract provided that the owner-
operator commission or percentage method of operation
would not be practiced on local work; that the percentage
or commission method of operation would not be practiced
on long distance moving (by employees); and that the
Union and Industry would designate representatives to
explore jointly the effects of owner-operator operation on
long distance moving.
In the 1965-68 union-industry contract (Exh. GC-4),
article 12(g) of the 1962 contract was repeated in an article
23, entitled "Owner-Operators," including a reference for
study of the owner-operator operation on long distance
moving to a joint labor management board. A new article
26, entitled "Subcontracting," appeared in the 1965-68
contract. It provided that no employer may subcontract all
or part of the work or services it contracts for, except with
union approval; and that in the event of such contracting
all employees employed by both the prime and subcontrac-
tor shall be on the payroll of the prime contractor, who
shall be liable for the wages, fringe benefits, and other
conditions provided by the union-industry contract.
In the 1968-71 union-industry contract (Exh. GC-5), the
"Owner-Operators" article 23 of the preceding contract
(Exh. GC-4) became new article 24, again reiterating the
intention to study the subject; and the previous "Subcon-
tracting" article 26 (of Exh. GC-4) became new article 23
(of Exh. GC-5) with added language stressing negotiation
with the Union as well as consent.
In the current 1971-74 union-industry contract (Exh.
GC-6), the previous "Subcontracting" article 23 (of Exh.
GC-5) was repeated, again as article 23 (of Exh. GC-6).
President Bader testified, without contradiction, that the
"Subcontracting" article was regarded as having to do with
local, and not with long distance, moving; and that neither
his company, which has subcontracted long distance
moving continuously since 1948, nor any other member of
the Industry has been the subject of a union claim that
subcontracting of long distance moving (that has been
done without negotiation with the Union and without
requesting its consent) was a breach of article 23 on
subcontracting. i5
Notwithstanding the expressions of intention in three
mile range, he said Contract drivers , on the other hand, according to
Santini's Traffic Manager Sclafam , do not like and frequently reject short
haul moving because it is not lucrative for them When Santini finds it
necessary, on occasion , to ask a contract driver to handle a short haul move,
Santini will pay him more than the standard 50 percent haulage
commission , and pays from 60 percent to 70 percent of the haulage charge
10 In corroboration, Vice President Santini noted , without contradiction,
that the Union has never claimed that Santini breached the article on
subcontracting , since the time Santini began converting in 1962, without'
requesting union negotiation or consent , to owner operator contracting for
long distance moving ; and that in the 1972 discussions Union Secretary-
Treasurer Martelli had with him, looking to compel Santini 's coverage of
(Continued)
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining contracts, from 1962 to 1971, to
jointly study the matter of owner-operator operation in
long distance moving, there was no study, according to
President Bader. Nonetheless, in the 1971 negotiations for
the current contract, according to Bader, the Union
brought in a demand that the concept and method of
operation by independent contractors had to go and that
all who drove or worked on the long distance moving vans
would have to be considered employees of the moving
companies. The demand was presented, said Bader, in a
manner indicating that, unless the Industry agreed, no
drivers would be available for any purpose.
The positions of the two negotiating parties, as described
by President Bader (and there was no other testimony on
the subject), was the following:
1. The industry negotiators were of the view that the
owner-operators were independent businessmen, third
parties for whom the union-industry negotiators could not
negotiate, and not under the control of the few New York
City moving companies with whom some 250-300 of them
had contracted The bulk of the long distance van line
business was carried on by major companies outside New
York City, all of whom utilized owner operators; and the
member companies of the New York City industry should
not now be subject to a different mode of operation, that
was imposed by a New York City union local who could
not impose its views or control outside New York, and that
would take the member companies out of competition for
the long distance hauling.
2. The umon negotiators' position was that they didn't
want to know of owner-operators or independent contrac-
tors, that all doing work for company members of the
Industry should be defined as employees under the union
contract. Bader emphasized that the union negotiators did
not say they wanted to displace the contract drivers with
employees, and they did not ask or suggest that the existing
group of owner-operators be physically displaced by
another group of persons to do the work. Bader noted that
one of the umon negotiators, Attorney Simon, said the
Union wanted to recapture the long distance hauling lost
over the years to the owner-drivers.
President Bader testified that there were no employee
drivers available then, and there were none available at the
time of trial, for long distance driving; that the Union has a
problem in getting and providing any men for any kind of
work in the busy season; and that the Union did not
express the view at the 1971 negotiations that it wanted the
owner-operators to cease doing the long distance work
because regular employees would do the work if the owner-
operators were not doing it.11
According to President Bader, the industry negotiators
analyzed their situation and recognizing that, of the 300
companies represented, the great majority had no concern
with long distance moving, and that the Industry as a
whole did not want a strike12 or an end of the contract
negotiations on the long distance moving issue, agreed to
the owner-operators as employees under the union contract , there was no
mention of a claimed breach of art 23 on subcontracting
ii As indicated by Bader, and noted supra, there were a few companies
that did some short haul moving ( 100-500 miles from New York City) and
an occasional long distance move (beyond 500 miles) with employees, and,
said Bader , a provision relating to them came into the current contract, Exh.
accept the Union's demand. This became article 24 of the
current 1971-74 contract (Exh. GC-6), and provides as
follows:
Article 24---Contract Employees
A.I. All persons performing long distance driving
under contract to an employer covered by this
agreement (whether as "owner-operator," "owner
driver," "percentage driver," "commission driver," or
otherwise) shall be covered by this agreement as
employees (hereinafter referred to as contract employ-
ees).
2. Contract employees shall be covered by this
contract limited to those provisions set forth in this
section and including the Union Security, Pension and
Welfare provisions, Legal Separability, No-Strike,
Grievance and Arbitration clauses and Union Check-
Off.
3. The employer shall make appropriate provision
for Contract' Employees as employees under Social
Security Workmens Compansation and Unemploy-
ment Insurance benefits.
4. The employer specifically reserves the right,
consistent with its Agency Van Line Agreement, to
control the manner and means and details of and by
which Contract employees perform services as well as
the ends to be accomplished. All other details and
economic arrangements shall be the subject of a
contract between the owner of the vehicle and the
employer party to this agreement provided that they
shall not conflict with the provisions of this article 24.
5. Contract employees shall be compensated under
a "Separate Check" system, and other compensation
and benefits under this agreement shall be separately
compensated.
6. This agreement shall not be used to deplete the
number of regular long distance drivers (other than
Contract employees) presently employed by employers
covered by this agreement.
7. The employers shall in the assignment of work
opportunities to Contract employees adhere to, as far
as is practicable in the efficient operation of the
employers business, assign work and attempt to equally
distribute earning opportunities in a manner consistent
with said employees qualifications, length of service
with the employer, earning opportunities of said
employees, equipment capabilities and agency van line
agreement. (First in first out dispatch shall not be
considered a violation of the equal earning opportuni-
ty.)
8. The foregoing agreement with respect to con-
tract employees shall automatically be renewed upon
the expiration of this agreement and renewals thereaf-
ter, and shall be reopened only upon the conclusion of a
national agreement with the major van lines covering
Contract employees on a national basis.
GC-6, art I I(1), recognizing entitlement of such a driver, who has been
away from home for 5 consecutive days or more to 2 days leave without pay
for personal business
12 Contemporaneously , there was a 3-week strike before negotiations
were completed over the industry wage offer.
LOCAL 814, TEAMSTERS
B. All loading and unloading of trucks operated by
Contract employees covered by this Agreement , within
metropolitan district , shall be performed by employees
of the Employer . These employees shall be from the
Employer's seniority list if available. Employees laid
off shall be deemed available , and shall be recalled by
the Employer in seniority order.
The union -security article, incorporated by paragraph
A,2 of article 24, is article 13, a typical union-security
provision requiring employees (after 31 days, etc.) to
become and remain members of the Union or (on notice)
suffer discharge from employment.
President Bader testified that none of the owner-opera-
tors were invited to participate in the union -industry
contract negotiations and no one appeared on their behalf.
C. Union and Santini Action
Vice President Santini testified that in May 1972 the
Union requested a list of Santini 's contractors , and that it
was supplied to the Union on May 24, 1972.
On August 14, 1972, Union Secretary-Treasurer Martelli
sent Santini a letter (Exh. GC- 10) stating that Santini had
violated article 24 of the union contract (Exh. GC-6) by
failing to adjust operations to conform with its "contract
em iloyees" provisions. Two weeks later, on August 28,
Martelli dispatched a letter to each of the Santini
contractors (Exh. GC- 11), including a copy of the union
contract and a union membership application, and
suggesting among other things that it was necessary as well
as desirable that they join the Union.
Also in August or September 1972, Martelli came to see
Vice President Santini and they discussed the effect of
article 24. Vice President Santini expressed concern that a
change in status from contractor to employee would be
prohibitive in additional costs to the Company and to the
contractors . He supplied some figures, indicated that the
margin of operation would not allow the Company to pick
up the extra cost , and stated his belief that the contractors
could not afford and would not pay the extra cost to them,
and that the Company would lose its contractors. Among
other things , Vice President Santini noted that the change
in status of the contractors to employees would make
Santini responsible for the contractors ' hired help, with
responsibility for workmen 's compensation insurance, tax
withholding , and other costs. Union Agent Martelli replied
it was not the Union 's intent to saddle Santini with these
costs, to which Vice President Santini replied it would
legally follow from the change of contractor status to
employee status . Martellt said he would check with his
lawyers. Martelli made no suggestion that Santini use its
hourly wage employees to do the long distance moving,
according to Vice President Santini, but he did say Sant,m
would have to use the long distance contract drivers in
accordance with the union contract and if they were not
covered in as "employees ," Santini could not use them.
There may have been another later discussion with
Martelli , said Vice President Santini , but in any event on
September 26, 1972, Santini sent a letter to each of its
contractors (Exh. GC- 12) noting that each had been sent
the Union 's letter of August 28 telling them of their
189
obligation tojoin the Union , under the union contract, and
that the Union had now set a deadline of September 29.
The letter continued , that because the union contract also
required Santini to make contributions on their behalf to
the union welfare and pension funds and created other
costs, Santini was requesting a renegotiation of the existing
contract with each of them . On the following day,
September 27, Santini sent the Union a copy of the Santini
September 26 letter to its contractors , with an updated list
of the contractors (Exh. GC-13).
Neither the Union letters, nor the Santini letters, to the
contractors appeared to have induced any action by them
to affiliate with the Union.
On October 30, 1972, according to both Vice President
Santini and Santini 's traffic manager , Sclafani (and as
stipulated by the parties), the Union caused a work
stoppage at Santini 's Jerome Avenue facility . Sclafani
testified that the employees were outside and three union
officials were present when he arrived in the morning.
Sclafani and the company safety director met with the
three union officials and the shop steward . The union
officials made clear , said Sclafani , that the time had come
for the owner -drivers to start joining the Union , and, as
Union Agent Bracco said , unless the applications started
coming in now there would be continued work stoppage
and possibly work stoppages at Santini 's export division in
Maspeth and at its fine arts division on 49th Street.
Union Agent Bracco submitted a timetable , said Traffic
Manager Sclafani , that in 20 days Santini would have been
in touch with all of its owner -drivers, and by that time only
those who had submitted membership applications to the
Union would be permitted to load or unload in the
metropolitan district (of New York City) and anyone who
had not submitted a membership application would not be
permitted to load or unload.
Traffic Manager Sclafani testified that he agreed to the
Union 's proposition, feeling sure that management would
agree with him to end the work stoppage . The strike ended
about 4 or 5 hours after it began , with Sclafani 's agreement
to get signed membership applications of the contract
drivers to the union representatives as he obtained them, to
refuse to allow nonsigners to load or unload, and to pay
the employees for the loss of time involved in the work
stoppage.
After discussing the subject with President Godfrey
Santini , Traffic Manager Sclafani spoke , he testified, to
each owner-driver present or reporting into the New York
area. Sclafani told each owner driver of the October 30
work stoppage , and of the Company's dilemma if he did
not join the Union Local ; and that Santini would not be
able to permit him to load or unload his van if he did not
join the Union. Sclafani claimed he made no "specific
requests" for the contract drivers to sign ; nevertheless, he
obtained a number of signed applications and turned them
over to the Union , permitting the signers to load and
unload in New York . Some contract drivers refused to join
the Union, said Sclafani, and Santini would not allow them
to load or unload in New York.
Under date of November 10, 1972, the Union dispatched
to Santini requests that it discharge , pursuant to union-
security article 13 of the union contract , 13 named contract
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers who had not joined the Union and paid union dues
(Exh. GC-14). Santini did not terminate its contracts with
these contractors. On November 20, there was a further
work stoppage, according to Vice President Santini. In the
meantime, the charge against the Union and Santini was
filed with the Board on November 8, 1972, by Charging
Party Leib, a Florida lawyer representing three of the
Florida based contractors of Santini.
D. Status of Contracting Owner Operators in
Santini's Long Distance Moving
1. The indicia
From the testimony of Santini's Vice President Santini
and Traffic Manager Sclafam, United's Vice President
Freitag, and Thomas Hugh Wolfe, who was first an
employee of a contractor with Santini (commencing in
1967) and later a contractor himself with Santini (com-
mencing in 1969 and terminating in January 1973); and
from typical contracts between Santini and its contractors,
the contracts between Santini and United, and related
documents, the indicia for determining whether the
contracting owner operators are independent contractors
or employees of Santini have emerged.
Ownership of Power Units: Typically, the owners of the
power units or tractors that pull the trailers in the long
distance moving are the contractors of Santini. Santini
does not own the tractors, but in most, though not all,
cases owns the trailers that the contractors haul with their
tractors. More often than not the operator or driver of the
tractor is its owner and the contractor with Santini, but in
some instances the driver may be an employee of the
contractor. Thomas Wolfe was in that category, starting as
a codriver with contractor and owner-operator Earl Harris,
and taking ovei for a period the sole driving when Harris
was injured and could not drive. When Harris acquired
ownership of more than one tractor (as has been the case
with some others of the contractors), Wolfe leased one of
the tractors from Harris (Exh. GC-15) and he (Wolfe)
directly entered into a contract with Santini making the
leased tractor and his services as contractor available for
Santini business.13 Wolfe's contract relationship continued
even after Harris had terminated his contract for his other
tractors with Santini.
By the contract arrangement, using the 1971 form (Exh.
GC-7, Santini-Wolfe) which Vice President Santini said
was basically the same contract as used since 1962 with
minor modifications, the contractor undertakes to make
his tractor available during the term of the contract for the
exclusive use of the carrier (Santini) and to provide the
moving services with the combined tractor-trailer equip-
ment on the carrier's shipping contracts or bills of lading.14
13 Some of the contractors have incorporated, and Vice President Santini
identified several who have done so
14 The exclusive use provision stems from the ICC regulation that
permits an authorized carrier to perform authorized transportation with
equipment he does not own, provided that the contract or lease for the
equipment gives him the exclusive possession, control, and use of the
equipment, and that he assumes complete responsibility in respect thereto,
for the duration of the contract or lease In the case of a long term lease of
equipment entered into by an authorized carrier of household goods, who
wishes to make only intermittent use of the equipment, such exclusive use
Remuneration: Remuneration from the carrier to the
contractor for all services performed by his vehicle,
himself, and employees, is computed at various percentages
of the rate schedules that the carrier charges the shipper
(see, for example, articles 19, 20, and 21 of contract, Exh.
GC-7, and testimony of Vice President Santini). The rate
schedules are usually tariff rates approved by the ICC and
may sometimes be carrier bid prices at less than tariff rates.
While the percentages tend to be similar for similar work
under most contracts, they also vary for specific or special
circumstances. Thus the usual percentage of the transpor-
tation service charge allowed the contractor is 50 percent
on tariff rates and 53 percent on bid prices at less than
tariff rates. However, some contractors receive 52-1/2
percent for transportation in the summer or peak service
months; two contractors, who own and supply their own
trailers as well as tractors, receive 65 percent; and for short
haul (between 100 and 500 miles), which is not as
profitable as long distance and which the contractors tend
to reject, and for certain specific trips, usually in the
summertime, Santini will pay a range of percentages from
55 percent to 70 percent.
There are certain additional charges for additional and
accessorial services to the shipper, and, where a percentage
is provided in the contract for the contractor, the
remuneration may range as high as 100 percent for
handling of bulky items, to 75 percent or 80 percent for
packing, to 50 percent for waiting time.
It should be noted that the contractors have no minimum
income guarantee from Santini, nor are they compensated
for overtime or compensated in any other manner than by
their percentage share of the allowable charges.
Contractor Control of Operation: The services for which
the contractor is remunerated by the carrier (Santini)
embrace execution of the complete order of the shipper to
the carrier to accomplish the move of the shipper's
household goods from the household of origin to the
household of destination. The services involve some
preliminary packing or crating (unless, as in some larger
moves, packing and crating is done preliminarily by the
employees of Santini), loading of the moving van from
household of origin, hauling over-the-road from point of
origin to destination, unloading the shipper's goods in the
household of destination, collecting payment from the
shipper at destination (90 percent of Santini's household
moving is c.o.d.), and promptly accounting for payments to
the carrier.
In a typical long distance move, an estimator (for
Santini) goes to the shipper's home and leaves or mails an
estimate of cost. An order is written up, including a pickup
date arranged with the shipper by the Santini sales
department (in consultation with the dispatcher). Delivery
time is spread over a period of time, usually 3 to 8 days
provision need only apply during the times that the equipment is operated
by or for the carrier See Exh S-I containing 49 CFR § 1057 4(a)(4)
In contrast to the equipment that he has leased for the exclusive use of
the carrier, the contractor or owner operator is not subject to any similar
"exclusive use" obligation upon his personal services by reason of his
contract with the carrier or ICC regulation Thus, he may perform the
services required by hiring others, and may himself drive other equipment
for other carriers if he has the time and organization (testimony of Vice
President Santini and contractor Wolfe)
LOCAL 814, TEAMSTERS
after pickup. A call slip, the order for service, and a bill of
lading are then turned over by the sales department to the
dispatcher.
The dispatcher projects moves chronologically and
geographically, and accumulates loads of a group of
individual moves per van, going into a particular area, that
are both practical and advantageous for the contractor
drivers to accept. In this connection the greatest percentage
of Santini's long distance moving on its own bills of lading
is New York-Florida and New York-Chicago. On moves
outside Santini's certificated territory, United's dispatching
at Fenton, Missouri, will be alerted by phone or mail and
handles the assigning of loads, although a suggestion that a
Santini contractor is or will be available in the area will
frequently be followed. Santini contractors haul a consid-
erable amount of New York-Los Angeles moving on
United bills of lading.
While load assignments to the contractor drivers are on a
"first come-first served" basis they are usually being
worked out in advance of arrival by communication
between dispatcher and contract driver, according to
Traffic Manager Sclafani, because the contractor may
refuse a load without penalty. If he refuses a load he does
not necessarily go to the bottom of the list, he may even be
called next, depending on the reason for the refusal. The
dispatcher frequently juggles orders to work out an
accommodation between carrier and contractor needs and
preferences , said Sclafani, so that when a driver comes in
the entire load for him has usually been established and
accepted by him.
The dispatcher turns over to the contract driver the
several orders for service and bills of lading that will
comprise the load, and he proceeds to the homes of the
shippers for pickup of their household goods. In the course
of so proceeding he will obtain a weight ticket for the
unloaded (tare) weight of his truck, since weight of the
goods is an ingredient of the charge for moving, and will
pick up helpers to assist him with the loading. In hiring
loading helpers, the contractors obtain them where they
can, frequently in warehouses in various cities. In any
event the contractors make their own arrangements and
pay for the help as their employees (in keeping with the
contract provision with Santini, see for example arts. 3 and
4 of contract, Exh. GC-7). In New York City, since 1971
(because of par. B of disputed art. 24 of the union contract,
Exh. GC-6), Santini has required its contractors to select
helpers from the Santini seniority list of employees, if
available, but if not available, the contractors are free to
hire whom they wish. If a contractor takes men who are on
the Santini seniority list, Santini will pay the men but bill
the contractor for the time he uses such men.
The contractor driver proceeds to the residences of the
several shippers, for loading. This is his first contact with
the shippers and he establishes delivery contact informa-
tion with each of them for the several destinations. (Santini
has no procedure on how the contractor must contact the
shipper before delivery.) In each case the contract driver
prepares an inventory (important for inspectional and
claims purposes). Except where preliminary packing of
goods has been done for a large move in advance by
Santini employees , the contractor and his helpers will do
191
whatever packing and crating is necessary , using his own
materials obtained at his own expense from whatever
source he chooses (see art . 2(b) of the contract , exh. GC-7).
In loading the moving van, the helpers usually do the
carrying and the contract driver usually does, or supervis-
es, the placement of the goods in the van . There is no
supervision of the move by Santini personnel . Sclafani
testified that Santini has no posted or mailed rules or
regulations for the contract drivers.
Pursuant to ICC regulations , the contract driver gives the
household shipper a copy of the bill of lading , scale weight
ticket, and inventory (which both sign at place of origin
and destination).
In proceeding with the loaded van to its destination, the
contract driver obtains the scale gross weight. The
contractor hires any helpers and a codnver as his
employees , if he thinks such help is necessary or desirable,
subject only to the Department of Transportation (DOT)
requirement that the second driver shall have supplied a
completed DOT form, for the carrier, establishing that he
meets DOT driver qualifications.
The contractor sets his own hours of work and those of
his helpers , subject only to DOT limitation ; and selects his
own routes in making deliveries , subject only to the legal
limitation that when operating under Santini bills of lading
(as distinguished from United bills of lading), he may not
operate in States for which Santini has no ICC certifica-
tion. Neither Santini nor United conduct any road
surveillance or supervision of the contract drivers. The
contract drivers are not obliged to call in each day (as
salaried employees had been), said Vice President Santini,
but frequently do call in for availability of additional
tonnage , or for latest information on location or contacting
the shippers for delivery. Contractor and carrier are
responsible for payment of their own communications to
each other and each must prepay such communications
(art. 17 of contract, Exh. GC-7).
In effecting delivery of the household goods into the
destination households of the shippers, again the contrac-
tor hires, as his employees , such helpers as he needs from
whatever local source is available (except that recently in
New York City he has been obliged to use Santini's
seniority list of employees , if any are available, under the
disputed union contract art. 24 , discussed supra ). Santini
exercises no supervision, through any of its employees,
over the unloading of the vans and delivery into the
households of the shippers.
After effecting delivery, collecting the charges, and
remitting them , the contract driver indicates to dispatch his
availability for the next assignment.
Vice President Freitag of United testified that , for goods
moving on its bills of lading , United does not supervise the
contractor operations in any phase-be it loading , unload-
ing, or hauling-that United has no employees , program,
or directives for seeing these functions done in a certain
way, that it does no checking of the performance of the
contract drivers and has no directions for their supervising
codrivers, and that it has no policy or program respecting
the type of helpers for loading and unloading.
Bearing in mind that United 's lease arrangements with
Santini in effect adopt, and do not purport to alter,
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Santini's contract arrangements with its contractors, the
summary of the operational practice would indicate that
both Santini and United follow the expressed written
intention of the Santini contracts with its contractors, that
the contractors will completely direct operations and
performance of the services , including direction and
control of employees utilized (art. 5 of the contract, Exh.
GC-7), and that the carver will not endeavor to control the
manner or prescribe the method of doing the portion of its
business contracted for by the contractors (art. 22 of the
contract , Exh. GC-7).
Costs and Incidents of Operation• The costs and incidents
of operation are borne by the contractors in a pattern
consistent with the operational responsibility they have
assumed. The contractor hires and pays for his help, and is
responsible for tax and social security withholding,
payments, and reporting affecting them, and provides his
own workmen's compensation and employer's liability
insurance for them. (In this connection, neither the
contractor nor his employees are accounted for on the
carrier's books for tax or social security withholding, etc.,
or for workmen's compensation insurance, or for other
requirements or benefits relating to employees of the
carrier.)
The contractor pays the operating costs of the equip-
ment-fuel, oil , garaging. parking, scales , tolls, ferries, and
road use taxes. He pays for the repairs of his tractor, and
makes his own arrangements for repairs , fuel, garaging,
and parking. While the expense of maintenance of trailers
owned by the carrier is borne by the carrier, nevertheless
the contractor is responsible to maintain the tires and tubes
of the trailer (see arts. 8 and 10 of the contract, Exh.
GC-7). The contractor pays for the overnight accommoda-
tions and other living expenses on the road. He pays for,
and arranges procurement of, his own packing materials.
The contractor pays for his base state license plates, and
the carrier pays for licenses in other states in which it wants
the contractor to operate. The contractor pays for public
liability and property damage insurance on the "bobtail"
operation of the tractor unhooked from the trailer, and the
carrier pays for public liability and property damage on the
operation of the combined tractor-trailer. As already
indicated, the contractor must obtain and pay for work-
men's compensation and employers liability insurance for
those he employs.
The contractor is responsible for loss of goods or damage
in the course of moving the household goods. For
shortages, he must reimburse the carrier for the actual
amount paid the claimant . For breakage of fragile items he
must also reimburse the carrier the actual amount paid the
claimant . For other damage claims a formula has been
established, by which the contractor must reimburse the
carrier $10 per item to a maximum of $100 per shipment.
(See art. 14 of contract, Exh. GC-7.)
All of the enumerated burdens and responsibilities of the
contractor are in effect whether he is operating on United
or Santini bills of lading.
Contract Provisions and Practices for Public or Carrier
Benefit: Because the long distance household moving
business is subject to governmental regulation for protec-
tion of the consumer and for highway safety, the contracts
between carrier and contractor include provisions directly
required to be included by law, such as the provision giving
exclusive use of leased equipment to the authorized carrier
(already discussedsupra). Other provisions may be included
in the contracts or practices adopted , because governmen-
tal regulation places ultimate responsibility for compliance
with certain requirements upon the carrier , notwithstand-
ing the delegation of performance of the moving function
by contract.
As the result of several reviews of inspection practice by
DOT, it was determined that periodic 60-day vehicle and
equipment inspection was suitable . Such a provision
appears in Santini contracts, requiring the contractor to
have the inspection required by DOT made every 60 days.
with the cost of inspection shared between the carrier and
contractor (art. 9 of contract, Exh. GC-7). Santini requires
the contractors to submit those reports to it and keeps a
record of them. United does not pay or contribute to
payment for the inspections (or necessary repairs) of such
vehicles and equipment leased to its service , but it does
keep a record of the inspections , since by law it would be
required to stop operation of a vehicle in its service that
was not inspected or in proper working condition. For
inspections, the contractors may use any approved inspec-
tion stations.
In the matter of accidents , the Santini contracts provide
that liability for damage as a result of fault of the
contractor shall be upon the contractor (art. 8 of contract,
Exh. GC-7). On reporting accidents, Traffic Manager
Sclafani testified that Santini is required by DOT to report
accidents . In consequence , he said , Santini has required the
contract drivers to notify it of any accidents. Vice
President Freitag of United testified that DOT requires a
periodic review of each driver , hence United keeps a record
of chargeable (fault of van operator) and nonchargeable
accidents ; and if one driving on their account is involved
in too many or too serious accidents , United's safety
department may suspend him from United 's service on
prior notice to the franchise representative with whom the
driver is a contractor or employee of a contractor. (As the
witnesses testified, a suspension from United's service
would not sever the driver 's contract or relationship with
Santini , and he would continue to drive for Santini so long
as his contract was in force .) Of course the review of
drivers' records is not limited to involvement in accidents.
Thus, violation of DOT rules on driver use of drugs or
alcohol would also result in suspension ; or failure of the
driver to maintain daily logs required by DOT might also
result in suspension (though not mandatorily).
DOT and ICC have requirements that drivers keep daily
logs, fill out load manifests , and submit certificates of
physical examinations ; and both Freitag and Sclafani
indicated that United and Santini check on these require-
ments being met.
In this connection , it is significant that neither Santini
nor United purport to exercise disciplinary authority over
the contractors (or contractors' employees) or to invoke
disciplinary penalties or reprimands ; and that the only
remedy available and invoked where there is dissatisfaction
with contract performance (including the contractor's
failure to comply with government regulations, which
LOCAL 814, TEAMSTERS
compliance is an express obligation under the contract) is
termination of the contract in Santini's case, or suspension
(meaning elimination) of the contract driver from Umted's
service in United's case. For Santini to terminate the
contract, it must give 30 days' notice to the contractor,
except that it may terminate the contract without notice if
the contractor has failed to comply with his obligation to
collect and account for money due on bills of lading or has
participated in falsification of a weight certificate or
vehicle load manifest. On his part, the contractor may
terminate his contract with Santini at any time on written
notice specifying the date of termination, provided he shall
complete any outstanding work (see art. 25 of contract,
Exh. GC-7). Since the contractor has no separate relation-
ship with United, even on the permanent (year-round)
lease of his equipment by Santini to United, he can drop
out of United's service anytime he chooses and go back to
Santini, as Vice President Freitag pointed out. If he
terminates his contract with Santini, the contractor owes
no separate notice to United.
Santim requires that each contractor deposit with it a
$3,000 cash reserve, on which it pays interest, and which it
holds for the final settlement of accounts on termination of
the contract (art. 18 of contract, exh. GC-7).
During the life of the contract, the contractor will also
accumulate credits in a credit account with Santini as his
commissions accrue. Since the contractor needs cash for
current expenses on work to be performed pending final
calculation of commissions for work done, Santini has
provided a system of cash advances against credits in the
contractor's credit account (which is a non-interest-bearing
account).
For purpose of identification in operation, the tractors
and trailers operating under Santini bills of lading are
painted with the Santini colors and lettering. Only the
tractors and trailers on permanent lease to United
(operating year round on United bills of lading) are
painted with the United colors. No United markings or
decals are placed on those vehicles that are on master
(intermittent) lease to United.
On the other hand, there is no requirement that the
contract drivers wear a uniform, and there has been no
criticism of contract drivers for not wearing a uniform,
according to contractor Wolfe. In his own case, said Wolfe,
he bought and put some Santini patches on some uniforms
he wore for ease of identification with customers.
Relationship of the United Operation: Under the preceding
hearings there has already been noted many if not most of
the important aspects of the Santini contractors' participa-
tion in United's operation. As indicated, there is no direct
contract relationship between United and any of the
Santini contractors, and they and their moving equipment
became available to United to the extent that their tractors
and trailers or Santini trailers are leased by Santini to
United. Even under the permanent, year-round, lease
arrangement, the tie is nebulous since the contractor or
cortract driver may drop out of United's service anytime
he chooses and go back to Santini service.
While on United's or Santini's service, as already noted,
the contractor is in complete charge of loading, unloading,
and hauling without supervision by United or Santini
193
personnel; and, as is the case with Santini, the contractor,
whether operating equipment under permanent or master
lease to United, may refuse loads without penalty.
The Santini contract drivers become available to United
by virtue of the same process that makes them contract
drivers for Santini, i.e., they are interviewed by Santini's
Traffic Manager Sclafam in connection with agreeing upon
a contract with Santini and the starting date. There is no
application form. Usually, said Sclafani, Santini's contrac-
tors have been qualified, experienced drivers; nevertheless,
because of DOT regulations, each completes a question-
naire covering his background and physical status. United
is furnished a copy, in the event the contract driver is to be
used in its work; and if United is satisfied that the contract
driver appears (from the questionnaire) to meet DOT
requirements, and registers no objection with Santini, it is
established that the contract driver may haul United
tonnage. However, as already indicated, United may not
sever a contract diver's contract if it is dissatisfied with his
performance; it may suggest that the driver not operate
further on United papers and he will go back to work on
Santini papers.
Beginning in 1971, United instituted a van operator
training program for permanent lease drivers. The inten-
tion to include master and peak lease drivers was
rescinded, said Vice President Freitag, although if any of
these asks to attend (or the franchise representative on his
behalf asks) they may attend. The training consists of an
open discussion (among those attending) on maintenance,
a lecture on safe operation on the highways, and a question
and answer review of DOT and ICC regulations. United's
files indicate that eight Santini contract drivers have taken
the training program, and there have been no suspensions
of a driver from United's service for failure to attend.
United has also instituted a performance awards pro-
gram under which it awards gifts for outstanding perform-
ance by van operators, taking into account such things as
revenue hauled and absence of law violations or accidents.
Vice President Freitag testified that United has no
system of direct communications with its van operators,
and no mailing system for their home addresses, but sends
any communications to them through the franchise
representative.
United has prepared an operator' s manual (Exh. U-10),
which is a compilation of factual and legal data useful to a
van operator, but copies of it have been sent to the
franchise representatives for them to distribute among
contract drivers as appropriate. United does not follow up
on the distribution, said Vice President Freitag; and
Traffic Manager Sclafani testified that Santini has no
policy on distribution of United's manuals and that no
record is kept of their distribution to the contractors, and
has no policy of checking for compliance with items in the
manual.
United has also prepared an agency manual (Exh. U-9)
for the franchise representatives themselves but, as Vice
President Freitag testified, United does not send its
representatives around to see to compliance with the
provisions of the manual.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Independent contractors What is significant to the controlling effect of Greyvan on
the case at bar is that in Greyvan, even though using the
broader "economic reality" test for defining employee
under the pre-1947 National Labor Relations Act, the
Supreme Court arrived at independent contractor status
for the owner-drivers, which was the same result reached
by the circuit and district courts below, applying the
common law right-of-control-test (331 U.S. at 716-717)
that has since turned out to be the standard for the Board
and courts under the post-1947 Act.
Looking more closely at Greyvan, the ICC-authorized
carrier had its principal office in Chicago with agencies in
many cities for soliciting household moving business, and
operated in 38 States and Canada. As early as 1930, before
passage of the Social Security Act, the carner company
had adopted the system of contracts with owner drivers of
trucks to do the hauling for it. The company also had
trucks of its own, driven by truckmen who were admittedly
company employees. Thus (like Santini in this case) the
company did its moving business under the two systems,
one with contractor truckmen and the other with direct
employee truckmen.15
The owner-drivers were required under their contracts to
haul exclusively for the carrier company, furnishing their
own trucks, equipment, and labor necessary to pick up,
handle, and deliver shipments. They were obligated to pay
all expenses of operation, including fire, theft, and collision
insurance that the company might specify (which turned
out to be a blanket company policy for which the owner
drivers were charged proportionately). The company
carried and paid for cargo insurance. It was the contrac-
tors' responsibility to pay for loss or damage to shipments
and to indemnify the company for loss caused by them or
their employees. The company paid for all Federal or state
permits or certificates to operate the contractors' vehicles
in the company's service as a motor carrier.
The contractors were obligated to collect all money due
the company from shippers, to turn such money in at the
offices to which they reported after delivery, and to post a
$1,000 bond and cash deposit of $250 against final
settlement of accounts.
The contractor was required at all times to personally
drive his truck or to be present on it when a competent
relief driver was driving, except in certain emergencies;
and he was required to follow all rules, regulations, and
instructions of the company. The instructions included
directions as to where and when to load freight. (These
several requirements are not imposed on the Santini
contractors.)
All shipping orders or bills of lading were to be between
the carrier company and the shipper, and if new freight
was tendered to the contractor he was to notify the
company so that it could complete the bill of lading in its
name (a requirement similar to the Santini contracts'
provision).
As remuneration, the contractors received a percentage
of the tariff charged to the shipper by the company varying
between 50 percent and 52 percent, and a bonus up to 3
percent for satisfactory performance.
The owner operators of the motorized equipment who
have contracted with the earner Santini for long distance
moving of household goods are, in my view, independent
contractors and not employees of Santini.
Central to this conclusion is the net total of the evidence
that each of the contractors has within his own control the
means of performing the contracted moving services and
the method of performance, unsupervised in execution by
the carrier whose business he performs. The restrictions
upon hum are largely those imposed by law on the
governmentally regulated busmess of moving household
goods by motor carrier, both with regard to consumer
protection and highway safety.
The standard applied in differentiating "employee" from
"independent contractor" under the Act is the common
law agency test, N.L.R.B. v. United Insurance Co. of
America, 390 U.S. 254, 256 (1968). This was made clear in
the Taft-Hartley amendments (1947) of the Wagner Act,
Id. Earlier, under the Wagner Act, the Board and the
courts had rejected the "power of control" concept in favor
of a broader concept of "economic reality" in defining
"employee" under the Act, N L.R.B v. Hearst Publications,
322 U.S. 111, 128-129 (1944), and see further explanation
in Harrison v. Greyvan Lines (sub nom United States v. Silk),
331 U.S. 704, 713-714 (1947). Congressional reaction to
this construction was adverse, and the 1947 amendment of
Section 2(3) of the Act specifically excluded "any individu-
al having the status of independent contractor" from the
definition of employee. "The obvious purpose of this
amendment was to have the Board and the courts apply
general agency principles in distinguishing between em-
ployees and independent contractors under the Act."
N.L.R. B. v. United Insurance Co., supra, 390 U.S. at 256.
Thus since Taft-Hartley, "In determining whether an
individual is an employee or an independent contractor,
the Board has consistently applied the common law right-
of-control test. Under this test, an employer-employee
relationship exists when the employer reserves the right to
control not only the ends to be achieved, but also the
means to be used in achieving such ends. On the other
hand, where control is reserved only as to the result sought,
an independent contractor relationship exists. The resolu-
tion of this question depends on the facts of each case, with
no one factor being determinative." Fleet Transport
Company, Inc., 196 NLRB 436, 439 (1972).
This history is useful because, lust prior to Taft-Hartley,
the Supreme Court decided in Harrison v. Greyvan Lines,
supra, that owner-drivers under contracts and in circum-
stances similar to those here, with a carrier like Santini, for
the interstate moving of household goods, were independ-
ent contractors and not employees of the carrier. The
determination was for the purpose of deciding whether the
owner-drivers were employees under the coverage of the
Social Security Act of 1935, and in making its determina-
tion the Supreme Court said it would "follow the same rule
that we applied to the National Labor Relations Act in the
Hearst case."
15 A contract between the company and a Teamster's local required all
truckmen to be members of the union.
LOCAL 814, TEAMSTERS
The contractors were required to paint the designation
"Greyvan Lines" on their trucks.
Each truckman was obliged to take a short course of
instruction in the company's methods of doing business
before he started hauling for the company. In addition
there was issued to each a manual detailing the conduct of
truckmen in performance of their duties. (A company
official testified that the manual was impractical and that
no attempt was made to enforce it.)
The company maintained a staff of dispatchers who
issued orders for the contractors' movements. but not the
routes to be used by them. At intervals, the contractors
were to report their positions to the dispatchers.
Each of the contracts was terminable at any time by
either party.
This summary of the Greyvan contracts and practice
(derived from the Supreme Court's opinion) provides a
remarkable likeness to the Santini contracts and practice:
but with the indication that the carrier company control
over the contractors in Greyvan was tighter than with
Santini and its contractors in several respects, notably
requiring the contractors to follow all rules, regulations,
and instructions of the company including directions on
where and when to load freight, requiring the personal
driving or supervision of the truck by the contractors at all
times, and requiring each of them to take a course of
instruction before commencing to haul.
Under this set of facts, and recognizing that the contract
truckmen and their assistants were from one standpoint an
integral part of the Greyvan freight transporting business,
the Supreme Court was nevertheless impressed that the
energy, care, and judgment of the contract truckmen
conserve the equipment they own and increase their
earnings, that they hire their own assistants, pay their own
expenses with minor exceptions, and depend upon their
own initiative. judgment, and energy for a large part of
th success, 331 U.S. at 716. "[W ]here the arrangements
lea e the driver owners so much responsibility for
investment and management as here, they must be held to
be independent contractors. (Citations omitted.) These
driver-owners are small businessmen. They own their own
trucks. They hire their own helpers. In one instance they
haul for a single business,la in the other for any
customer.17 The distinction, though important, is not
controlling. It is the total situation, including the risk
undertaken, the control exercised, the opportunity for
profit from sound management, that marks these driver-
owners as independent contractors." 331 U.S. at 719.
In my view, the decision in Greyvan is a persuasive as
well as controlling precedent for finding that the Santini
contractors are independent contractors, who by compari-
son enjoy even greater freedom from the carrier company's
control than did the Greyvan contractors.
The Board, in more recent times, has added cumulative
precedents for the same result.
In Reisch Trucking and Transportation Co., Inc., 143
NLRB 953 (1963), the company was a motortruck
common carrier with terminals in New York, New Jersey,
Pennsylvania, and Maryland. The company was party to a
16 This is a reference to the contract truckmen for Greyvan
17 This is a reference to the contract truckmen in the companion Silk
195
union contract with a Teamster's union local, on a
multiemployer basis, that covered the company's 15 "city"
dnvers based at the Baltimore terminal, who were admitted
employees engaging strictly in local cartage work with
company equipment in the Baltimore-Washington area.
The union local sought to include an over-the-road unit
comprising several owner-drivers of tractors and a non-
owner-driver retained by an owner of an additional
tractor, who were under contract with the company to haul
company owned or controlled trailers to and from the
company's Baltimore and Pennsauken, New Jersey, termi-
nals, at night. The company opposed the unit on the
ground that the owner-drivers were not its employees but
independent contractors and that the nonowner driver was
an employee of an independent contractor.
The Board found that the relation between the company
and the owners of the tractors was governed by a standard
lease (in use since 1956), for 30 days, automatically
renewed for like periods unless terminated on 30 days'
notice by either party (and there was evidence that a
number of owners had terminated such leases).
Under ICC regulations, the tractors were leased to the
company for its exclusive use. The trailers hauled were
sealed and the drivers did not engage in pickup or delivery
of goods and had no contact with the company's
customers. The drivers received a trip slip and manifest for
each trailer hauled and had to maintain a log on each trip.
Under the lease the owner of the tractor undertook to
provide the vehicle as the company required it together
with a competent driver who remained the employee of the
tractor owner, paid by him. Operational costs of the tractor
(gas, oil, etc.) and maintenance were the tractor owner's
responsibility and he was responsible for damage to it or
the company trailer, but the company paid for public
liability and property damage insurance on the tractor-
trailer. The company paid for licenses, taxes, and fines
assessed against the tractor when in company use, and the
company was responsible for compliance with ICC safety
regulations and requirements for vehicle identification.
Unlike the city drivers, the owner-drivers did not
participate in any safety program and were not subject to
company rules that applied to the company drivers. The
owner-drivers were governed by the ICC rules and
regulations.
The contractor, of course, purchased and paid for his
tractor and paid for its license in the home State,
Maryland, but the company paid for licenses in other
states. The contractor paid for collision-fire-theft insur-
ance, the company paid for cargo insurance . While the
contractor would get his tractor maintenance performed
where he chose, the company conducted periodic inspec-
tion of the tractors.
Remuneration to the contractors was $50 per round trip
between Baltimore and Pennsauken, plus tolls, plus $2 per
hour for excess waiting time. There were also some
occasional extra jobs off the usual run at a fixed fee plus
mileage.
Orders were assigned through the company 's central
dispatch on call to the drivers, who were free to refuse a
case, who had an arrangement with Silk , a coal dealer for delivery of coal to
his customers , but who had the privilege of hauling for others
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
run or extra job without reprisal. The company exercised
no disciplinary authority over the contract drivers.
The company did no withholding of income tax or social
security payments from contractors or their drivers and
provided no workmen's compensation or fringe benefit
coverage for them.
The Board held, 143 NLRB at 956-957, that the owner-
drivers were independent contractors and that the non-
owner-drivers were employees of independent contrac-
tors, and not employees of the company. The Board noted
particularly the bona fide and absolute ownership of the
tractors by the contractors, which gave rise to an mference
of control over the manner of performance associated with
the status of independent contractor. It regarded as
significant in demonstrating the entrepreneurial nature of
the contractors the fact that they determined whether to
drive the tractors themselves or employ others to do so.
Additionally, that the contractors could control, in part,
their profit or loss not only by deciding whether or not to
drive themselves, but also by diligence and efficiency in the
repair and maintenance of their tractors by persons of their
choosing. The Board saw substantial independence in the
virtual freedom of the contractor to decide whether to take
an assignment, and in selecting routes of travel; and noted
the contract expression of intent to establish an independ-
ent contractor relationship. Lastly, said the Board, "The
control exercised by the Company over the work of owners
and drivers is for the purpose of complying with the rules
and regulations of the Interstate Commerce Commission
and is not inconsistent with the independent contractor
relationship." 143 NLRB at 957.
In Fleet Transport Company, Inc., supra, the Board had
an issue similar to that in Reisch Trucking, supra. The
Teamsters union local was seeking, and the company
resisting, a unit that included tractor owner-operators, and
their nonowner-drivers, who were under contract to a
motortruck common carrier for, in this case, the intrastate
(Florida only) transportation of petroleum products on
behalf of several large oil companies. The company
operated subject to the regulations of the Florida Public
Service Commission (FPSC), which had adopted the
federal Department of Transportation (DOT) regulations
with some few modifications. Thus the contract driver had
the prescribed duties relating, among other things, to
submitting daily logs and maintenance and accident
reports, checking equipment before operation, providing
inspections at regular intervals, and displaying the compa-
ny's name and certificate number on the tractor. The
tractor, leased by the company, could not under FPSC
regulations be simultaneously leased to another carrier;
but the owner-operator could lease other tractors he might
own to other carriers and he could drive for other carriers
as well as for the company (a situation similar to that of the
Santini contractors in the case at bar).
Without detailing here all of the details of the contract
relationship, the Board concluded that the owner-operators
were independent contractors, that the nonowner-dnvers
were employees of independent contractors, and that
neither were employees of the company and were therefore
excluded from the unit. The Board found that the
contractor, and not the company, determined what days
and hours to work, what routes to use, where to have
repairs made and to purchase fuel, and where to park his
tractor when not in use. He was free to refuse loads
without penalty and to decide whether to hire or fire a
driver, what work rules to impose on his drivers, and what
rates of pay and fringe benefits his drivers would receive.
Essentially, said the Board, the only indicia of control over
the means of delivering the petroleum retained by the
company were those required by the FPSC. 196 NLRB
436, 439.
The Board made two additional points in resolving the
issue against a finding of an employer-employee relation-
ship: (1) the termination clause of the lease , which gave the
company an option to terminate by notice at specified
intervals, with automatic renewal of the lease if the option
were not exercised, is entirely consistent with independent
contractor status; and (2) the fact that the company
unilaterally determined the rates of commission paid to the
owner-operators, and the terms of the lease, may show that
the company's bargaining power is vastly superior to that
of the owner-operator, but such inequality of bargaining
power is not peculiar to an employer-employee relation-
ship, 196 NLRB at 439, fn. 7.
Again, in Conley Motor Express, Inc., 197 NLRB 624
(1972), the Board had the question of whether contractors
who were owner-operators of tractors leased by them to the
certificated motor carrier, and the nonowner-drivers of
such vehicles, were properly includable in a unit of over-
the-road truckdrivers. The carrier company had leased 27
tractors, 25 of which were owner operated. Two of the
owner-operators leased two tractors each to the carrier and
each supplied a driver for his second tractor. In addition,
the company leased 10 trailers from owner-operators and
also had in service 25 of its own trailers. The contractors
and their equipment were mainly used for hauling steel
from Pittsburgh area steel mills to consignees in five States.
The company also had three tractors of its own, driven
by three salaried employees, usually on short hauls or for
work in which contractors did not wish to engage.
The Board disagreed with the Regional Director that the
carrier had created an employer-employee relationship
with the contractors. It noted three factors which might
tend to support the view that they were employees: (1) the
degree of control over equipment and personnel reserved
to the company required by and consistent with state and
Federal (ICC and DOT) regulation of motor carriers, (2)
the fact that the company unilaterally set the rates of
compensation for the contractors, and (3) evidence that the
company had liberal policies on cash advances, interest-
free loans, and free loans of equipment to contractors in
emergencies.
However, said the Board, these three factors alone did
not establish that the company controlled the means by
which the contractors performed their day-to-day transport
and delivery duties under the lease agreements. On the
contrary, the following five factors suggest that the
controls exercised by the company related solely to results
to be achieved under the leases, and that an employer-
employee relationship had not been established: (1) the
contractors exercised a very substantial degree of freedom
in scheduling the use of their equipment and in rejecting
LOCAL 814, TEAMSTERS 197
loads offered which they considered undesirable; (2) they
were free to trip lease their equipment to other carriers; (3)
they paid virtually all the costs of operation and mainte-
nance of their equipment; (4) they were subject to almost
no day-to-day supervision or control by the company; and
(5) there was no pattern of regular discipline of contract
drivers for acting contrary to any prescribed means or
method of operation designed by the company. According-
ly, the owner-operators were found to be independent
contractors and the nonowner-drivers to be their employ-
ees and not employees of the company.18
The foregoing examination of these precedents of
independent contractor status in the moving and trucking
industry, from Greyvan to Reisch to Fleet to Conley, provide
over a span of the last 25 years the judgment of the
Supreme Court and the Board that, even in a governmen-
tally regulated business, arrangement for doing business,
similar to that in this case, whereby small businessmen
undertake performance of part of the principal function of
the larger businessman, is indeed independent contracting.
Comparing the facts of the cases, the Santini arrangement
appears to make as strong a case, if not stronger in some
respects, for independent contractor status.
As in the other cases, the Santini contractors have all of
the entrepreneurial indicia of investment in the ownership
of expensive power units, in some cases multiple units and
ownership of trailers as well, and shoulder all of the costs
and arrangements of their operation and maintenance and
the risks and costs of damage, including loss or breakage of
the household goods in their care.
For their recompense, the contractors share a portion of
the tariff charges that the carriers are permitted to charge
the shippers. These percentages are prescribed by the
contracts and are generally uniform, but there appears to
have been some individual bargaining on certain accessori-
al charges and there clearly is bargaining by the contrac-
tors and carrier on the percentages for the occasional short
haul the contractors may do. There are no minimum
guaranties of earnings from carrier to contractor, and to
the extent that advances for cash needs may be made to the
contractor these are not carrier moneys but come out of
the contractor's own credits for past earnings with the
carrier.
The Santini contractors, who must be and are qualified
to drive under DOT regulations, are not obliged to drive
the equipment they lease to Santini but may lure and
provide others who likewise qualify. The Santini contrac-
tors may refuse, and sometimes have refused, loads offered
to them without penalty.
Once responsibility to pick up and deliver a load has
18 Note also the consonant holding in Gold Medal Baking Co, Inc, 199
NLRB 895 (1972), finding an independent contractor relationship between
a bakery and the owner-operators of trucks distributing the bakery's
products
There are a number of other Board decisions in the trucking field where
owner-operators have been held to be employees rather than independent
contractors, such as Deaton, Inc, 187 NLRB 780 (1971), The Aetna Freight
Lines, 194 NLRB 740 (1971), Florida-Texas Freight, Inc, 197 NLRB 976
(1972), Pony Trucking, Inc, 198 NLRB No 59 (1972), and the recent
decision of my colleague Administrative Law Judge Sidney Sherman in a
moving company case, Local 814, International Brotherhood of Teamsters
(Molloy Brothers Moving and Storage, Inc), 208 NLRB No 43 (1974). 1
make no attempt, here, to distinguish in detail the facts and results in those
been accepted from the carrier's dispatcher, the contractor
is in full charge from pickup to delivery. The contractor
hires as his employees his own help at the points of origin
and destination to assist in packing, loading, unloading,
and, as is necessary, the over-the-road driving. He
supervises these tasks and optionally participates in or
assists in their performance. The carrier, on whose bills of
lading the contractor is working, does not supervise or
direct any portion of the moving operation from pickup to
delivery. The contractor selects his own routes for delivery,
and the hours of work for himself and his men (within
DOT limitations); and the expenses incident to effectuat-
ing delivery such as fuel, tolls, overnight accommodations,
and communications are his burden.
None of this relationship and its incidents, including
freedom from carrier direction and supervision of perform-
ance, are altered when the Santini contractor is moving
household goods on the bills of lading of the national
carrier-United. Santini, to comply with ICC regulation,
has leased to United, either for year-round use (permanent
lease) or intermittent use (master lease), its right to use the
contractor's equipment, but there is no contractual
relationship between United and the Santini contractor,
with whom United deals and communicates through
Santini. A contract driver may drop out of United's service
anytime he chooses and revert wholly to Santini service.
Neither Santini nor United purport to have any system of
disciplining contract drivers. The United training program
for operators of permanent lease vehicles is in essence a
form of refresher for experienced drivers but even if the
program were more than that it would not be inconsistent
with the independent contractor relationship, see Greyvan,
supra. The United awards for good performance are no
more than a bonus in addition to the agreed remuneration,
see Greyvan, supra.
The requirements on the contract drivers for physical
examinations, keeping of daily logs, periodic inspections of
equipment, and the like are requirements arising from
government regulation which, as the Board has said more
than once, are not inconsistent with the independent
contractor relationship, see Rersch and Fleet, supra.
In all of the transactions and relationships between the
contractors, on the one hand, and the carriers, Santini and
United, on the other, including the performance of
functions, recompense, the keeping of books, and the
accounting to government agencies, insurance companies,
and the like, the contractors are not treated or carried or
recompensed as employees of the carrier. On the contrary,
the contractors are dealt with and accounted for as
independent contractors of the carrier Santini, and their
cases, from the facts and results in the case at bar and the precedents upon
which I have relied and regard as more closely related However, I do note
one general characteristic from reading the cited decisions that have found
an employer-employee relationship, namely the stress on a layer of carrier
regulation put upon the contractor beyond what was required by
government regulation , impairing the contractor's independence
This is not the situation in the case at bar The evidence indicated
conformity with [CC and DOT requirements-not more-and the ICC and
DOT regulations themselves are compatible with, and contemplate that
there will be and can be independent contractor as well as employer-
employee relationships in the business of household moving by motor
carrier
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts with Santini state the intention to establish that
relationship. The total facts warrant the finding that the
contractors are independent contractors.
E. 8(e) Violation 19
Article 24 of the union contract (Exh. GC-6), set out in
ful under heading B, above, requires that any person doing
long distance driving under contract with an employer
covered by the union contract, whether as owner-operator
or commission driver or otherwise, shall be covered by the
union contract as an employee, called contract employee.
However, it is further provided that, except for the specific
provisions of the article, the details of economic and other
arrangements between the contract employees and the
employer shall be the subject of the individual contracts
bet,veen them.
The specific provisions of article 24 make applicable to
the contract employees the union-security, union checkoff,
pension and welfare, no-strike, grievance and arbitration,
and separability clauses of the union contract. However,
the employer is to compensate the contract employees
under a "separate check" system, and is to provide them
social security, workmen's compensation, and unemploy-
ment insurance benefits under the separate compensation
system. There is reserved for the employer the right,
consistent with its agency van line agreement, to control
the manner of performance of contract employees, and to
assign work in a way that attempts to reconcile equal
earning opportunity with seniority, qualifications, equip-
ment capabilities, and agency van line agreement. First-in-
first-out dispatch is stipulated not to be a violation of equal
earning opportunity. Lastly it is provided that the
agreement (under the article) shall not be used to deplete
the number of •egular long distance employees, as
distinguished from contract employees, presently em-
ployed by covered employers.
An additional paragraph B, article 24B, requires that
loading and unloading within the metropolitan district of
trucks operated by contract employees shall be performed
by employees on the covered employer's seniority list, if
available, including employees in layoff status.
Except for compliance with article 24B, Santini did
nothing effectual to comply with article 24 until, under
compulsion of the union demand of October 30, 1972,
accompanied by a work stoppage or strike and threat of
more, Santini sought to require its contractors to join the
Union, and succeeded with some.
19 Sec 8 (e) of the Act provides, in pertinent part
(e) It shall be an unfair labor practice for any labor organization
and any employer to enter into any contract or agreement, express or
implied , whereby such employer ceases or refrains or agrees to cease or
refrain from handling , using, selling, transporting or otherwise dealing
in any of the products of any other employer, or to cease doing
business with any other person , and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to
such extent unenforceable and void
20 The same primary vs secondary object test applies to determine
violations of Sec 8 (b)(4), since the "hot cargo" provision , Section 8 (e), is a
complement of the "secondary boycott" provisions of Section 8(b)(4), in
effect banning agreements to achieve a secondary boycott in advance,
National Woodwork Manufacturers Association v N L R B, 386 U S 612,
634-635(1967)
21 Testimony of Vice President Santini and Traffic Manager Sclafani of
The inquiry, then , is whether the object of the Union's
conduct and of the agreement respecting the contract
drivers (article 24) was "primary"-intended to preserve
fairly claimable unit work to unit members in the employ
of the contracting employer-or "secondary"-aimed at
regulating the labor policies of other employers including
self-employed persons. If the object was primary, the
agreement did not violate Section 8(e) of the Act , even if its
incidental effect caused the employer to cease doing
business with other persons ; whereas if the purpose was
secondary , such as limiting subcontracting to employers
who recognize the union or who are signatory to a contract
with it or who are members of it, the agreement was
unlawful and a violation of Section 8(e), Retail Clerks
International Association Local 1288 (Nickel's Pay-Less),
163 NLRB 817 , 818-819 ( 1967), affd . 390 F.2d 858,
861-862 (C.A.D.C., 1968), finding violations of Section
8(e) and 8(b)(4)(i) and (ii)(A), among other things.20
The circumstances surrounding article 24 , looked at from
the situation of Santini alone or of the Industry (New York
City multiemployers association ) as a whole, indicated 21
that over the period 1962 through 1966, Santini converted
completely from employee long distance moving to
contractor long distance moving,22 that Santini was the last
of the approximately 20 Industry companies who engage in
long distance moving to so convert , and Bader Brothers
was among the first, starting in 1948 . Numerically, most of
the Industry companies have not and do not engage in long
distance moving (except as order takers for others). A few
of the Industry companies , Santini among them , have done
and do some short haul (100-500 miles of New York City)
using employees ; but for Santini this has been a very small
amount of its business . Only on rare occasions , usually in
an emergency , has a Santini employee been asked to do a
move over 500 miles, under the conditions existing in the
last several years. On the other hand , the long distance
contractors are not interested in (because unprofitable for
them) and have seldom done short haul under the
conditions existing in the last several years; when they
have done short haul, usu^ ily to meet the carrier's
emergency , they have generally been able to exact from the
carrier a higher percentage of the hauling revenue than is
normally paid for long distance hauling.
Immediately prior to 1962, Santini did all of its long
distance moving with approximately 12 employees who
spent about 65-75 percent of their time on such work,
according to Vice President Santini.23 Currently , Santini
has 24 contractors , who do nothing but long distance
Santini. Union Secretary-Treasurer Martelli , and President Bader of Bader
Brothers for the Industry, related portions of which have already been
discussed under headings A, B, and C, above
22 Long distance meaning over 500 miles The current union contract
still carries over an old definition of long distance as meaning over 90 miles,
but the testimony, already described under heading A, indicated that this is
obsolete, that up to 100 miles of New York City is regarded as local,
between 100 and 500 miles is short haul, and over 500 miles is long distance
21 Union Secretary -Treasurer Martelli thought the number between 1955
and 1962 was more like 40 employees, but there were comings and goings in
employment in the 7-year period and he was not able to establish this as the
number of such employees at a given time Moreover , his figure was highly
improbable , since Santini did much less long distance business per year in
that period than it has done in the subsequent 1962-72 period and currently
when it now utilizes 24 contractors for its long distance moving
LOCAL 814, TEAMSTERS
moving on Santini or United bills of lading, representing
an enormous increase in long distance business, particular-
ly in the period 1967-72 (see heading A, supra ). Nine of
the 24 Santini contractors are based in Florida. Including
Santini's contractors, there are between 250 and 300
contractors, all told, doing the long distance moving of the
20 New York City companies so engaged.
While there has been practically total conversion from
employee to contractor long distance moving by the (New
York City) Industry in the period 1948-67, there has not
been a lessening of unit jobs, and there has been some
increase for two reasons: (1) the increase of long distance
moving has generated related work, performed by bargain-
ing unit employees, calculated in revenue at about 40
percent of the long distance revenue; and (2) although
local household moving business has declined, there has
been a great increase in local commercial moving,
performed by bargaining unit employees.24
President Bader testified that his company, and others,
have used contractors for long distance moving continu-
ously since 1948, and that his company, like others, has no
employee on its payroll doing long distance moving. When
the "subcontracting" article was first introduced into the
1965-68 union contract (as article 26), its terms required
specific union approval for subcontracting and that all
employees of the subcontractor shall be on the payroll of
the prime contractor.25 Nevertheless, neither then, nor
since , according to Bader, was there any claim by the
Union that his company, or any other doing long distance
hauling by means of contractors, was in violation of the
subcontracting article (now article 23), which he asserted,
without contradiction, related only to local moving
business (despite its more general wording). Vice President
Santini buttressed this view of the situation with uncon-
tradicted testimony indicating no complaints from the
Union that Santini violated the subcontracting article
either in the course of effectuating its changeover in long
distance moving from employees to contractors, or in the
1972 discussions between the union representatives and
Santini where the Union took the position that the
contractors must join the Union. .
Moreover, according to President Bader, when the
"contract employees" article 24 came into the 1971
negotiations and union contract, there was no bargaining
proposal that the companies use their employees in place
of the long distance moving contractors. Nor did the
Union take the position that it wanted the moving
contractors displaced by bargaining unit employees (not-
withstanding it wanted the contractors defined as employ-
ees), because there were not then and are not now
bargaining unit drivers available for long distance driving,
said Bader. Indeed, said Bader, the Union has a problem in
24 In this connection, commercial moving requires about three times
more helpers per driver than household moving. The testimony indicated
that the number of drivers represented by the Union in 1972-73 was about
the same as in 1962, but the number of helpers has increased substantially
25 The article was repeated in the 1968-71 union contract and in the
1971-74 union contract as art. 23, except that it provided for negotiating
with the Union on the matter of any subcontract
26 Union Secretary-Treasurer Martelli s assertion that there are many
qualified and willing employees for long distance moving fell rather flat in
199
providing any additional men for any kind of moving,
particularly in the busy season, noting some expenences.26
Again, Vice President Santini buttressed this view of the
situation, indicating that in the Union's 1972 discussions
with him concerning the contractors joining the Union,
there was no suggestion that Santini use its hourly
employees to do long distance work, or that such
employees would or could do such work.
In sum , apart from talk by a union lawyer at the
Industry-Union negotiation about seeking to recapture
bargaining unit work, see heading B, supra, for a number of
years (since at least 1967) there has been no body of
bargaining unit employees, including Santini employees,
who have performed long distance moving or for whom to
preserve or recapture the long distance household moving
business. As developed by the record of this case, the plain
fact is that in New York City, at least, the moving business
has undergone several gradual changes over a period of
years and, among these, has turned for long distance
performance to a new breed of small independent
businessmen, frequently not based in New York, and
capable and willing to move constantly about the country
with their own power units. The New York City Industry
bargaining unit employees have apparently adjusted to the
changes without economic loss, acquiring increased local
work (and possibly more desirable work than long distance
hauling from the standpoint of a local employee).
Against this background, it is useful to turn to what was
said and held by the Third Circuit Court of Appeals in A.
Duie Pyle, Inc v. N.LR.B., 383 F2d 772, 777-778 (1967),
cert. denied 390 U.S. 905 (1968), concerning the union
contract provision that required
owner operators and fleet owners to become employees
and thus to join the union in order to retain the work
which they have been doing on subcontract. On their
face these requirements are "secondary" in their
purpose as well as their result. They do not require a
carver to put an end to subcontracting, but only to
terminate it as to its subcontractees who refuse to
become members of the union. Thus, their effect is to
make the continuance of the relationship between the
employer and an independent contractor depend upon
the latter's decision to become a member of the union if
he is an owner-operator and to require his employees as
well as himself to become members of the union if he is
a fleet-owner. The requirement therefore makes the
central test of the employer' s continuing to do business
with such an individual his internal labor policy and
not his maintenance of union wage scales or similar
conditions which otherwise might adversely affect the
unit members. This is substantially similar to provisions
which permit an employer to subcontract only with
third parties who are unionized. Such provisions have
light of his April 1971 communication to the Industry about the need for a
training program to meet the shortage of manpower in the whole of the
moving business and his indication at trial that no program had been
started. Moreover, Traffic Manager Sclafani testified that the Union has
never come to him to say that Santini 's use of contractors was taking work
from a Santini employee driver, or that one of the Santini employee drivers
would like to do long distance moving as an employee . On the contrary, he
said, employees have on a number of occasions come to him asking if they
might become contract drivers
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repeatedly been struck down under § 8(e) as imple-
menting illegal secondary objectives. See, e.g., N. L. R. B.
v. Joint Council of Teamsters No. 38, 338 F.2d 23, 28,
30-31 (9 Cir. 1964); Meat & Highway Drivers, Dockmen,
Helpers & Misc. Truck Terminal Employees, Local
Union No. 710, etc. v. N.L.R.B., 335 F.2d 709,717 (D.C.
Cir. 1964); District No. 9, International Association of
Machinists v. N.L.R.B., 114 U.S. App. D. C. 287, 315
F.2d 33, 36-37 (1962).
The present provisions, to the extent that they
require the subcontractees to become employees and
members of the union, therefore must also be declared
invalid. As in the case of secondary boycotts generally,
a union may not employ a collective bargaining
agreement with one employer as a means of effectuat-
ing its object to coerce another employer to unionize.
Nor may it by this means seek to coerce self-employed
persons to become union members. Congress has made
this clear by § 8(b)(4)(A) which prohibits secondary
boycotts with an object of "forcing or requiring any
employer or self-employed person to join any labor
... organization ...:. The self-employed owner-
operator is as much entitled to protection from
coercion to join a labor organization as is a fleet-
operator who may have one or even many employees.27
In Meat and Highway Drivers Local 710 [Wilson & Co.],
v. N. L. R. B., 335 F.2d 709, 717 (C.A.D.C., 1964), cited with
approval in Pyle, supra, the court of appeals struck down as
violating Section 8(e) of the Act a "union signatory clause"
under which the employer engaged to make all effort to
subcontract with cartage companies who employed mem-
bers of the union local, saying that the clause "requiring or
encouraging a boycott of cartage companies who do not
have union contracts is a violation of Section 8(e). To make
selection of subcontractors turn upon union approval bears
only a tenuous relation to the legitimate economic
concerns of the employees in the unit, and enables the
union to use secondary pressure in its dispute with the
subcontractors." 2s
Still later, the District of Columbia Circuit citing Pyle,
supra, with approval, affirmed the Board (163 NLRB 817)
in Retail Clerks Union Local 1288 v. N L.R.B., 390 F.2d
858, 861-862 (C.A.D.C., 1968), supra, holding that a clause
of the union contract with retail stores, requiring that
demonstrator employees of suppliers of the stores must
comply with the contract and become union members, was
a union signatory clause in violation of Section 8(e) of the
Act, and that union striking and picketing to obtain the
clause constituted violations of Section 8(b)(4)(i) and
(ii)(A) and 8(b)(3) of the Act.
27 On remand, Highwa) Truck Drivers and Helpers, Local 107 etc, 199
NLRB 531 (1972), the Board accepted the court's view of the contract
clause as the law of the case and found that the contract clause violated Sec.
8(e) of the Act, and that the umon violated Sec 8(b)(4)(i) and (u)(A) of the
Act by inducing employees of McCormick to strike or threaten to strike and
by coercing McCormick, with an object of forcing McCormick to enter the
prohibited agreement.
28 The court distinguished and held valid a "work allocation clause,"
requiring that meat deliveries in Chicago he made by local employees
In Milk Wagon Drivers and Creamery Workers Local
Union No. 66, 181 NLRB 882 (1970), a clause of the union
contract with employer distributors of dairy products
required that all jobbers delivering milk for the distributors
shall be members of the union. The Board held that the
clause violated Section 8(e) of the Act since it required the
distributors to compel the jobbers, whom it found to be
independent contractors, to become members of the union.
It was found that the objective of the clause was secondary
in nature-enhancement of the union's institutional
interests-and a means to use one employer to coerce self-
employed persons to become union members.
From the foregoing, it would therefore appear that
article 24 of the union contract in this case , requiring the
independent contractors of Santini to become employees
of Santini and members of the Union, in its terms and
effect violates Section 8(e) of the Act.
Section 8(e) makes it an unfair labor practice to "enter
into" any such forbidden agreement . Article 24 first came
into being in April 1971. The charges in this case were filed
November 8, 1972. Nevertheless, the violation of "entering
into" the unlawful agreement, prohibited by Section 8(e), is
established when a respondent, whether union or employ-
er, reaffirms the illegal agreement or insists on its
enforcement within the 10(b) period, namely, within the 6
months prior to the filing of the charge. Dan McKinney Co.,
137 NLRB 649, 653-657 (1962); Milk Drivers and Dairy
Employees, Local Union No. 537, 147 NLRB 230, 231
(1964).
Here, both the Union and Santini reaffirmed, and
thereby entered into, the unlawful article of the union
contract well within the 6-month period before November
8, 1972, as detailed under heading C above. Thus, the
Union notified both Santini and its contractors of the
necessity to comply with article 24 in August 1972; warned
Santini to comply in September 1972; engaged in work
stoppages and threatened more to obtain compliance in
October and November 1972; and demanded that Santini
terminate the contracts of thirteen contractors who refused
to join and pay dues to the Union in November 1972.
Santini, on its part, requested the contractors to renegotiate
their contracts in September 1972; agreed with the Union
to solicit and solicited union memberships from its
contractors in October and November 1972; and refused to
permit loading or unloading by contractors who would not
join the Union in October and November 1972. The
violation of Section 8(e), by both the Union and Santini,
was established.
covered by the union contract, on the ground that it had a primary work
preservation objective, that involved recapture of work (as distinguished
from work acquisition , said the court) which the local deliverymen had lost
when meat packers moved out of Chicago, 335 F 2d at 712- 714. But note
also a distinction placed on this holding in Local Union Wo 282, Teamsters
(D Fortunato, Inc.). 197 NLRB 673 (1972), where the Board held a union
contract clause violated Sec 8(e), and union action violated Sec 8(bX4)(i)
and (iiXA)(B). because the clause and action were viewed as an attempt to
"recapture" work not performed by bargaining unit employees.
LOCAL 814, TEAMSTERS 201
F. 8(b)(4) Violations29
For the purposes of this case, Section 8(b)(4)(i) and
(ii)(A) forbade the Union from engaging in or inducing
strike action or threatening or coercing an employer on two
counts: (1) where an object was to require an employer or
self-employed person (Santini's contractors) to join the
Union, and (2) where an object was to require an employer
or self-employed person (Santini) to enter into the "hot
cargo" agreement prohibited by Section 8(e); and Section
8(b)(4)(i) and (ii)(B) forbade the Union from engaging in
action to achieve the secondary objectives it had sought to
impose in advance through the agreement that contra-
vened Section 8(e).
As noted, under heading E, supra, in Pyle and its remand
Highway Truck Drivers Local 107, and in Retail Clerks
Local 1288, where the union in each case had engaged in a
strike to obtain a clause forbidden by Section 8(e) that
included compelling self-employed persons or employees
of another employer to become union members, the Board
and courts found violations of Section 8(b)(4)(i) and (ii)(A)
(as well as violations of Section 8(e)).
In Highway Truck Drivers and Helpers, Local 107 (E. A.
Gallagher & Sons), 131 NLRB 925 (1961), enfd. 302 F.2d
897 (C.A.D.C., 1962), the Board and court found violations
of both Section 8(b)(4)(A) and (B). In that case, Gallagher
was a trucking company that did local cartage in the
Philadelphia area with its wage employees, and longer
distance over-the-road hauling of steel, that included
points in Pennsylvania and New Jersey using independent
contractor owner operators who were paid on a ton-mile
basis. The union struck for a clause in its contract with
Gallagher which, the Board found, would curtail deliveries
by independent contractors in a 40-mile radius of Philadel-
phia and cause Gallagher to cease doing business with the
independent contractors. The Board found that the
contract provision would contravene Section 8(e) of the
Act, and that the strike by the union with an object of
compelling inclusion of the provision violated Section
8(b)(4)(i) and (ii)(A) of the Act. And, said the Board, since
a further object of the strike necessarily was the forcing of
Gallagher to cease doing business with the independent
contractors, the union also violated the secondary boycott
provision in Section 8(b)(4)(i) and (ii)(B), 131 NLRB at
932.
In the case at bar, the Union has engaged in work
stoppages at Santini's place of business and threatened
more, with an object of forcing the independent contrac-
tors of Santini to join the Union, clearly in violation of
Section 8(b)(4)(i) and (ii)(A).
zs Section 8(b)(4)(i) and (u)(A) and (B) provides as follows
8(b) It shall be an unfair labor practice for a labor organization or its
agents-
(4)(1) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the course of
his employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities or to
perform any services, or (ii ) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in
either case an object thereof is
IA) forcing or requiring any employer or self-employed
person to join any labor or employer organization or to enter
Likewise, the Union's coercive insistence on Santini's
compliance with the illegal article 24, including work
stoppages and threats of more, was a reaffirmation and
therefore reentry of the illegal article, also in violation of
Section 8(b)(4)(i) and (ii)(A). N.L.R.B. v. Milk Drivers and
Dairy Employees Local Union No. 584, 341 F.2d 29, 33
(C.A. 2, 1965).
Because an object of the work stoppages and threats of
further work stoppages was to force Santini to cease doing
business with its independent contractors who would not
join the Union, such conduct was a violation of Section
8(b)(4)(i) and (ii)(B) of the Act.
CONCLUSIONS OF LAW
1. The long distance moving contractors with Santini
are independent contractors and not Santini employees.
2. By engaging in, and inducing and encouraging
employees of Santini to engage in, work stoppages, and by
threatening, coercing, and restraining Santini by means of
work stoppages and threats of additional work stoppages,
with an object of forcing Santini to enter into and give
effect to an agreement prohibited by Section 8(e) of the
Act and with an object of forcing the independent
contractors of Santini and their employees to become
members of the Union and with an object of requiring
Santini to cease doing business with its independent
contractors if they do not become members of the Union,
the Union has engaged in unfair labor practices in
violation of Section 8(b)(4)(i) and (ti)(A) and (B) of the
Act.
3. By entering into and giving effect to an agreement
with the Union whereby Santini agreed to refrain from
doing business with its independent contractors in contra-
vention of Section 8(e) of the Act, the Union and Santini
have engaged in unfair labor practices in violation of
Section 8(e) of the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE RFMFDY
It will be recommended that the Union and Santini cease
and desist from engaging in the unfair labor practices, and
take certain affirmative action designed to effectuate the
policies of the Act. Because of the coercion involved, the
affirmative action includes reimbursement of the Santini
contractors by the Union for all union initiation fees and
dues unlawfully collected from them.
Upon the foregoing findings of fact, conclusions of law,
into any agreement which is prohibited by section 8(e):
(B) forcing or requiring any person to cease using , selling,
handling, transporting , or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person. or forcing or requiring
any other employer to recognize or bargain with a labor
organization as the representative of his employees unless such
labor organization has been certified as the representative of
such employees under the provisions of section 9: Provided,
That nothing contained in this clause (B) shall be construed to
make unlawful, where not otherwise unlawful, any primary
strike or primary picketing.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anc the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following- recommended:
ORDER 30
A. Respondent Union, Local 814, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Engaging in, or, inducing or encouraging employees
of Santini or other employer engaged in commerce or in an
industry affecting commerce, to engage in a work stop-
page, or strike, or refusal in the course of their employment
to use or handle any materials or to perform any service, or
threatening, coercing, or restraining Santini, or any other
employer engaged in commerce or in an industry affecting
commerce, where an object thereof is either (1) to force or
require Santini or any other employer or person to enter
into or give effect to an agreement prohibited by Section
8(e) of the Act, or (2) to force or require the independent
contractors of Santini or other employer or self employed
person to join the Union or other labor organization, or (3)
to force or require Santini to cease doing business with its
independent contractors.
(b) Entering into, giving effect to, or enforcing the
agreement, article 24 of its collective-bargaining contract
(1971-74) to which Santini is party, found unlawful under
Section 8(e) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in its business offices, meeting halls, and places
where notices to members are customarily posted, copies of
the attached notice marked "Appendix A." 31 Immediately
upon receipt of said notice, on forms to be provided by the
Regional Director for Region 2, the Union shall cause the
copies to be signed by one of its authorized representatives
and posted, the posted copies to be maintained for a period
of 60 consecutive days thereafter in conspicuous places,
including all places where notices to members are
customarily displayed. Reasonable steps shall be taken by
the Union to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Mail or deliver additional signed copies of said
notices to the Regional Director for posting by Santini, if
willing, at locations where notices to its employees are
customarily posted.
(c) Reimburse the contractors of Santini, or any
employees of such contractors, for all initiation fees, dues,
or other moneys each may have been required to pay to the
Union by reason of the enforcement of the unlawful article
24 of the Union's collective-bargaining contract to which
Santini is party. Reimbursement shall include interest at
the rate of 6 percent per annum, added to the sum due
each, computed on the basis of separate calendar quarters
with interest to begin running as of the last day of the
calendar quarter for initiation fees, dues, or other moneys
exacted or due in that calendar quarter, until compliance
with this reimbursement order is achieved.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Union has taken to comply herewith.
B. Respondent Santini Brothers , Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from entering into, giving effect to,
or enforcing the agreement , article 24 of the collective-
bargaining contract with the Union (1971-74) to which
contract Santini is party, found unlawful under Section
8(e) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its places of business copies of the attached
notice marked "Appendix B.".32 Immediately upon receipt
of said notice , on forms to be provided by the Regional
Director for Region 2, Santini shall cause the copies to be
signed by one of its authorized representatives and posted,
the posted copies to he maintained for a period of 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Santini to
insure that said notices are not altered , defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps
Santini has taken to comply herewith.
iU In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions , recommendations , and Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall he
deemed waived for all purposes
ii In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
32 See fn. 31. supra
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated the National Labor Relations Act,
we hereby notify you that:
WE WILL NOT engage in, and we will not induce or
encourage employees of Santini Brothers, Inc. (Santi-
ni), or of any other employer engaged in commerce or
in an industry affecting commerce, to engage in a work
stoppage, or strike, or refusal in the course of their
employment to use or handle any material or to
perform any services, and WE WILL NOT threaten,
coerce, or restrain Santini or other person engaged in
commerce or in an industry affecting commerce, where
in either case an object thereof is either (1) to force or
require Santini or other employer or person to enter
into or give effect to an agreement prohibited by
Section 8(e) of the National Labor Relations Act, or (2)
to force or require the independent contractors of
Santini or other employer or self employed person to
join the Union or other labor organization, or (3) to
force or require Santini to cease doing business with its
independent contractors.
LOCAL 814, TEAMSTERS
WE WILL NOT enter into, give effect to , or enforce the
agreement , article 24 of our collective-bargaining
contract (1971-74) to which Santini is party, found
unlawful under Section 8 (e) of the National Labor
Relations Act.
WE WILL reimburse, with interest , the independent
contractors of Santini , or any employees of such
contractors , for initiation fees and dues each may have
been required to pay to the Union because of
enforcement of the unlawful article 24 of the Union's
collective-bargaining contract to which Santini is party.
LOCAL 814, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 36th Floor, Federal
Building, 26 Federal Plaza, New York, New York 10007,
Telephone 212-264-0306.
APPENDIX B
203
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated the National Labor Relations Act,
we hereby notify you that:
WE WILL NOT enter into, give effect to, or enforce the
agreement, article 24 of our collective-bargaining
contract (1971-74) with Local 814, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union), which agreement
was found unlawful under Section 8(e) of the National
Labor Relations Act.
SANTINI BROTHERS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 36th Floor, Federal
Building, 26 Federal Plaza, New York, New York 10007,
Telephone 212-264-0306.