Malone Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1953

106 N.L.R.B. 1107 (N.L.R.B. 1953)

MALONE FREIGHT LINES, INC. 1107
tions controverting the Regional Director' s findings as to the
signing of the contract. Signing a contract with one of two
competing unions after an election has been directed accords
a potent form of assistance to that organization and thereby
prevents a free choice by the employees.' Accordingly, with-
out passing upon the issues raised by the Employer with
respect to the wage increase ,7 we adopt the Regional Direc-
tor's recommendations and set the election aside.
ORDER
IT IS HEREBY ORDERED that the previous election among
the Employer ' s employees be, and it hereby is, set aside.
IT IS FURTHER ORDERED that this proceeding be remanded
to the Regional Director for the Sixteenth Region for the pur-
pose of conducting a new election at such time as he deems
the circumstances permit a free choice of a collective-
bargaining representative.
Member Murdock took no part in the consideration of the
above Supplemental Decision and Order.
6International Shoe Company, 97 NLRB 772.
7 Because of the basis upon which we are deciding this matter , no factual questions exist
which necessitate a hearing . We therefore reject the Employer 's contention in this respect,
as well as its contention that a hearing on all matters is a prerequisite to any Regional
Director 's report.
MALONE FREIGHT LINES, INC. and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL. Case No.
32-CA-307. September 15, 1953
DECISION AND ORDER
On May 25 , 1953, Trial Examiner Reeves R. Hilton issued
his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had not engaged in and is not
engaging in unfair labor practices within the meaning of Section
8 (a) (1), (3), and (5) of the Act, and recommending that the com-
plaint be dismissed in its entirety, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, the Union
and the Respondent filed exceptions to the Intermediate Report
and supporting briefs.'
1 The requests of the Respondent and the Union to file reply briefs are granted and the reply
briefs submitted have been considered
The Union requested oral argument . This request is hereby denied because the record, the
exceptions, and briefs, in our opinion, adequately present the issues and the positions of the
parties.
106 NLRB No. 176
322615 0 - 54 - 71
1 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner.
[The Board dismissed the complaint.]
Member Murdock took no part in the consideration of the
above Decision and Order.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, herein called the Union, the General Counsel of the
National Labor Relations Board,' by the Regional Director for the Fifteenth Region (New
Orleans, Louisiana), issued a complaint dated November 28, 1952, against Malone Freight
Lines, Inc , herein called the Respondent or the Company, alleging that the Respondent has
engaged in and is engaging in certain unfair labor practices as defined in the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act Copies of the charges and the
complaint and notice of hearing were duly served upon the Respondent and the Union.
In substance the complaint alleges that during October 1952, the Respondent terminated
the employment of approximately 127 named individuals because they engaged in concerted
activities for the purposes of collective bargaining and because of their activities on behalf
of the Union; refused to recognize and bargain collectively with the Union as the exclusive
representative in a unit consisting of all truckdrivers in its employ; and interrogated the
drivers concerning their plans for concerted activities, offered benefits if they would desist
from such activities, and urged the drivers to abandon strike action and return to work. By
reason of these acts the Respondent engaged in conduct in violation of Section 8 (a) (1), (3), and
(5) of the Act. The Respondent duly filed its answer to the complaint denying the commission
of any unfair labor practices and affirmatively challenging the jurisdiction of the Board
for the reason that its truckdrivers are independent contractors and not employees, as
defined in the Act
Pursuant to notice, a hearing was held at Birmingham, Alabama, from January 13 to
January 20, 1953, before the undersigned Trial Examiner. All parties were represented by
counsel and participated fully in the hearing. At the outset of the hearing counsel for approxi-
mately 108 drivers filed a motion for leave to intervene in the proceedings on the grounds that
they were interested parties since eachhad signed an application for membership in the Union,
which was subsequently withdrawn, and the individuals no longer desired to be represented by
the Union for the purposes of collective bargaining The motion, without objection, was
granted by the undersigned, limited to participation necessary to protect the interests of the
intervenors as set forth in the motion. At the same time the undersigned granted the General
Counsel's motion for leave to amend his complaint to allege that the Respondent refused to
bargain collectively with Local 612, affiliated with the International Union, as well as the
Union At the conclusion of the hearing counsel waived oral argument and were advised of
their right to file briefs in the matter. Thereafter, briefs were filed, which have been duly
considered by the undersigned
iThe General Counsel and his representative at the hearing are herein referred to as the
General Counsel; the National Labor Relations Board as the Board.
MALONE FREIGHT LINES, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
1109
The Company, an Alabama corporation, maintains its principal office and terminal at
Birmingham , Alabama , and a terminal at Atlanta , Georgia , and is a common carrier engaged
in the business of transporting freight by motor vehicle. The Company operates under certif-
icates granted by the Interstate Commerce Commission, herein referred to as ICC, and
various State permits, and is authorized and conducts its business in 16 States.2 The annual
revenue derived from its operations exceeds $500,000, of which amount at least 50 percent
represents revenue from freight transported between various States. The Company neither
concedes nor denies that it is engaged in commerce as defined in the Act. The undersigned
finds that the Company is engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, and Local 612, an affiliate thereof, are each labor organizations within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Early operations of the Company
J. R. Oden , president of the Company , stated that the corporation was organized in 1941,
when it purchased the trucking business then owned by Harry Malone. Initially , the Company
operated as a regular route carrier between Birmingham and Nashville , Tuscaloosa, and
Chattanooga . A regular route carrier , according to Oden, is one that holds a franchise from
ICC which permits and requires him to operate over specified highways between stated places
named in his certificate , and normally maintains regular scheduled service . At the time of the
purchase Malone had an agreement with the Union , or one of its locals , which was assumed by
the Company . When the Company commenced operations it owned some tractors and trailers
and also leased some equipment from owner - drivers Oden said that the Company had agree-
ments with the Union for about 3 years, from 1942 to 1945, which at first covered only
employee-drivers but later included the owner -drivers as well . In the period 1943-1945
practically all of the equipment operated by the Company , some 50 pieces , was leased from
the Defense Plant Corporation . Sometime after V-J Day (August 14 , 1945) the Defense Plant
Corporation repossessed its equipment and refused to extend the lease thereon or to sell the
same to the Company. Oden stated this left the Company with but 8 tractors and apparently it
continued limited operations with employee-drivers until the latter part of 1945, or early
1946, when it sold 3 or 4 of the tractors to drivers and disposed of the remaining ones. Mean-
time , in 1945, the Company obtained rights or franchises from another company and, while it
continued limited regular route service , it thereafter became principally an irregular route
carrier and expanded its operations to include many additional States. As an irregular route
carrier the Company , pursuant to certificates granted by ICC, operated in the area defined
above , on any route or highway that it desired to use. As such it did not maintain any regular
schedule for either pickup or delivery of freight. Oden stated that the Company solicited
business from various shippers , on what he termed a " call and demand service, " and picked
up the freight at the shippers ' place of business.
As the Company had but few tractors subsequent to V-J Day and since truck equipment was
not being manufactured , hence unobtainable , Oden said the only way to secure the same was by
lease arrangement . While this factor was the " immediate cause" of the institution of the lease
method , Oden declared it was also prompted by other considerations , such as, instilling
initiative on the part of the owner -driver and the placing of responsibility for the care and
maintenance of equipment on one individual . Thereafter , the Company operated under such an
arrangement and the lease agreement in effect at that time , one of which , date December 30,
1946 , was offered and received in evidence , provides as follows-
2 Alabama, Arkansas , Georgia, Louisiana , Mississippi , North Carolina, South Carolina,
Tennessee, Virginia , West Virginia , Ohio, Pennsylvania , Maryland, Delaware, New Jersey,
and New York.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The leassor warrants that he is the legal owner of the described tractor and trailer which
he agrees to lease to the Company for the purpose of transporting one or more loads of
freight for which the lessee agrees to pay 70 percent of the revenue derived on general
freight and 65 percent on ammunition and explosives. The lease further provides for
"65% when pulling Malone Trailer ." and that the lessor pay all maintenance on the
trailer while in his possession. The lessor warrants the equipment is in condition to
safely transport freight: that the vehicle or vehicles comply with applicable requirements
of appropriate Federal and State regulatory bodies; that the lessor assumes responsibility
for (a) various license fees, (b) fines as a result of any unlawful operation, (c) labor costs
in loading or unloading freight and (d) damageor shortage of cargo during transportation.
The lease contains no termination date.
The record does not disclose how many lease agreements were in effect at that particular time.
B. The lease agreements in effect during October 1952
The parties stipulated that since sometime in 1949, the Company used a uniform lease agree-
ment covering the leasing of tractors from owners and another agreement covering the leasing
of trailers by the Company to theowners. The parties further stipulated that as of October 14,
1952, the Company had lease agreements with 154 owner-drivers.
Under the terms of the motor vehicle agreement the owner agrees:
To lease the vehicle to the Company exclusively for transporting freight for which the
Company, upon receipt of signed delivery receipts and drivers' logs, agrees to pay 70
percent of the gross revenue when pulling general freight and 65 percent when pulling
ammunition or explosives. The vehicle is to display a sign showing it is leased by
the Company. The owner warrants that the vehicle is in safe operating condition and
that he will so maintain the same, and that he will comply with Federal and State rules
and regulations applicable to the operation thereof The owner further agrees that he
will drive the vehicle and bear the expense of labor necessary in operating the equip-
ment or in the loading or unloading of freight, and to be responsible for any shortage
of cargo
The Company agrees to provide public liability and property damage insurance for its
own protection, as well as cargo insurance, and to pay the Alabama mileage tax on the
vehicle. The agreement provides that the Company shall have a lien upon the vehicle to
cover any indebtedness to it on the part of the owner and in the event the Company is
required to pay a fine for violation of any Federal, State or Municipal law or rule caused
by the owner, he will reimburse the Company for the fine plus expenses incurred by it
The lease is to continue in force until such time as either party shall cancel the same by
written notice, and failu re by the owner to comply with Federal or State safety regulations,
or driving the vehicle in a reckless manner or while intoxicated shall constitute a breach
of the agreement. The owner acknowledges receipt of various documents such as accident
reports, etc
Trailer Leave Agreement
Under the terms of this agreement:
The Company agrees to lease a designated trailer to the owner-driver to be used exclu-
sively in connection with the business of the Company for which the lessee agrees to pay
a sum equivalent to 5 percent of the gross revenue receipts for cargo hauled in the trailer.
The lessee agrees to furnish tires for the trailer and to keep it in good repair. The lease,
which is nontransferable, continues from week to week and may be terminated by either
party upon the giving of one day's notice in writing.
A supplement to this agreement provides:
That the lessee shall not insure the trailer against loss or damage by fire or collision and
that the Company will make such repairs, the lessee to pay for the same on the basis of
labor plus parts, his liability therefor not to exceed $ 250.00 in any one case. The lessee
further agrees to pay 2 percent of the gross revenue to the Company for providing and
performing such repair service.
MALONE FREIGHT LINES, INC. 1111
Oden stated that a "tab" was attached on the face of the above forms wherein it recited that
the owner -driver assumed liability for all property damage claims or losses up to $150 for
any one claim arising out of the ownership or operation of the equipment
C. Operating procedures under the lease agreements
The evidence adduced by the parties in respect to the operating procedures , with few ex-
ceptions , is substantially to the same effect
The parties stipulated that initially the owner -driver submitted an application for a lease
wherein he stated the type of equipment owned by him , his driving record and references.
If accepted the parties then executed lease agreements in the form set forth above.
The testimony of Glen Lucas , in the following respects , is typical of that related by other
owner -drivers who appeared as witnesses at the hearing.
Lucas testified that in September 1950, following discussion with D . H. Williamson, vice
president of the Company , he entered into lease agreements whereby he leased his tractor to
the Company and in turn leased a trailer from it for the purpose of transporting freight
exclusively for the Company . Lucas continued the relationship until October 3, 1952, when his
lease was canceled under circumstances set forth below After the execution of the agreements,
Lucas was "briefed " by Mrs Frances Hurd , an office employee , on ICC regulations, the
preparation of drivers ' logs , loading and unloading procedures , company speed limits , and the
method of punching clocks in a designated area Hurd further informed Lucas he must operate
the equipment at all times and that the carrying of any passengers was strictly prohibited and
any violation thereof would result in cancellation of his lease. At the same time Lucas was
given a mimeographed sheet of "Company Regulations ," a copy of which was received in
evidence , containing 19 paragraphs which reiterate in concise form practically all of the
pertinent terms set forth in the tractor agreement as well as the subjects on which he was
briefed . Lucas paid the license fees required by the various States through which he would
operate and after having the company insignia installed on his tractor commenced hauling for
the Company.
Dispatching Methods
Lucas testified that the Company solicited freight fromvarious shippers and in turn company
dispatchers , located at Birmingham , Atlanta , and Metnphis ,3 instructed him as to the location
of the shipper and when the freight would be available . While Lucas stated the shipments were
to be handled in a reasonably expeditious manner , he had no specific time schedule to maintain
either in the pickup or delivery of cargo. In the assignment of freight , the drivers , in accord-
ance with the briefing and company regulations , operated on a "first - in first-out" basis The
company regulations provide that when the driver has unloaded at a point where the Company
does not have a terminal he will telephone or wire the Company at Birmingham for instruc-
tions Thus , Lucas explained , if he unloaded in Pennsylvania he would call Birmingham and
ascertain what loads were available If he was the third driver to call in, he would be the third
driver to go out. In the event therewas no freight which could be picked up that day the driver
could remain at that particular place, or drive to some point where the drivers customarily
meet and there await dispatching instructions If, under these circumstances , the driver
happened to be in the vicinity of his home he could proceed thereto, or he might be instructed
by the dispatcher to do so, where he would be notified of available cargo. In this respect,
Lucas related that on one occasion he and some other drivers unloaded in New Orleans and
stayed there 3 days because of the lack of available freight. However , he admitted that he
could have returned home on the second day, had he wished to do so . Lucas stated that when
he first began hauling the drivers , subject to the first - in first-out system , had a choice of loads
and inquired of the dispatcher as to the location and destination of the available loads and the
revenue thereon The right to select cargo was eliminated in the latter part of 1951 , or early
1952 , and thereafter the drivers had no choice in the matter , except as to cargo dispatched in
the area of the respective terminals Lucas stated the driver customarily determined the
amount of freight to be loaded on his equipment and also decided whether he needed any help
in loading or unloading and was responsible for the wages of any such help . In transporting
cargo Lucas was not required to use any specified route . However, in accordance with its ICC
certificates , the Company was required to use certain routes in a portion of its operating
3 The Memphis terminal was shut down in October 1952
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
territory and in such cases the Company maintained clocks at check points4 at which the
driver punched the shipping papers to show that the freight had moved through that point.
Upon presentation to the Company of a receipt signed by the consignee the driver was
promptly paid for the trip.
While the witnesses uniformly stated that company policy or regulations required them to
notify the appropriate dispatcher after they had unloaded there is some variance as to whether
the drivers , at least in 1951 and 1952, were then compelled to go on the dispatching board, or
call board , and be available for loads In substance , some of the witnesses for the General
Counsel testified that they had no choice in this matter.
Thus, driver R. E. Phillips, stated that on one occasion, he did not give the date, he unloaded
at Memphis and called the dispatcher there, J. H. Diffly, who instructed him to pick up a load
of rice in Arkansas Phillips told him there were holes in his trailer and he was afraid the
rice would get wet. Diffly said the rice had to be moved so Phillips made the trip On another
occasion Phillips said he called Diffly from Nashville and was informed that four loads of
canned goods were available and if he came in he could have one of these loads . When Phillips
reported in Diffly assigned him a load of batteries The following morning Phillips came to
the office and when Diffly asked why he had not picked up his freight Phillips complained that
he had been promised a load of canned goods. An argument ensued and in the course of the
same Diffly said if he did not want the load he would cancel Phillips' lease whereupon he
loaded the batteries Phillips related that 2 or 3 years previously he asked Williamson not
to send him to the "valley ," near Lanett , Alabama, because the people were disagreeable at
times . Williamson replied Phillips could pull his tires off the trailer and haul for someone
else
James L. Watson related that in May 1950 Diffly assigned cargo to him which he declined
because of the low rate Diffly then assigned the cargo to David Green, who was next on the
dispatching list, and he too refused the load. Shortly thereafter, Diffly told Watson that he
had talked to Williamson and that he or Green would take the load or bring their equipment to
Birmingham . Watson and Green went to Birmingham and explained to Williamson that they
could not operate on that type of freight and, after an argument , Watson understood he was
fired and was given a "letter of cancellation " of his lease . The letter , dated May 4, 1950,
stated that since Watson had elected to quit , the Company was canceling his lease. At the
time in question Watson admitted his name was on the dispatching board which meant he was
available for freight , " If I wanted to haul it " In October 1951, Watson signed another lease
agreement with the Company and continued to haul until October 1952 Watson said in the
above interval he knew that when his name was placed on the dispatching board it indicated he
was empty and available to haul. Watson was aware of the fact that rates charged shippers
were fixed by ICC under published tariffs.
Paul L. Cost testified that in October 1951 he unloaded at Belle Bluff, Virginia, and then
talked to Clyde Jarrett , dispatcher at Birmingham , who directed him to pick up cargo in
Baltimore destined to Atlanta . Cost asked if he had any other trips and Jarrett answered if he
did not want the trip assigned he could "come to Birmingham and pull " his tires , which Cost
understood to mean he would be " fired " Cost made the trip
J. R. Moody, who leased continuously from January 1950 to October 1952, testified the
driver was instructed to call the Company when he had made delivery of the freight. At the
same time he also informed the dispatcher whether he was ready to haul, and if he was ready
his name was placed on the dispatching list . In the event the driver was not ready , he received
no further dispatches until he notified the Company he was available for cargo . In respect to
the movement of freight , Moody stated that under early company regulations the driver was
instructed to call Birmingham if the load was delayed for 12 hours, or more . This rule was
changed by a later bulletin (dated August 20, 1951) which provided that generally the driver
had a leeway of 36 hours delay without reporting to Birmingham.
Hubert Allen commenced hauling for the Company in August 1952, and stated that the driver
was required to notify the Company after unloading, which "automatically" placed him on the
dispatching board so that he was compelled to take the next load of freight . Allen could not
recall whether he received a company bulletin, dated January 15, 1951, covering dispatching
procedures but, after examining the same, admitted he had been briefed on the contents there-
of by Jarrett The bulletin states that trucks dispatched by telephone or telegraph will not
have a choice of freight but the Company would attempt to assign the best load to the first
4The clocks were located at Oxford, Arkansas, Statesville, North Carolina, and Heflin,
Tuscumbia, and Wedowee, Alabama.
MALONE FREIGHT LINES , INC. 1113
driver available The bulletin further provides that when the driver calls in the dispatcher will
ask if he is "ready to go anywhere" and if the answer is in the affirmative he is assigned a
load. If the driver replied in the negative, the reason therefor will be given and the driver's
name will be removed from the list until he is ready to haul. The determination must be made
prior to load assignment and the reason for being unavailable must be a good one. These
instructions did not apply to dispatches covering the area of the three terminals.
Allen said that on one occasion after unloading at Marcus Hook, Pennsylvania, he called
Jarrett who instructed him to take a load to Atlanta Allen lived in Marked Tree, Arkansas,
about 32 miles from Memphis, and upon being advised that there was cargo going to Little
Rock requested this trip since he had not been home for about 30 days. Jarrett refused his
request, but when Allen explained the matter to Vernon Norton, who was in charge of operations
at Birmingham, and he was given the Little Rock trip Upon completion of the run Allen noti-
fied the dispatcher at Memphis and returned home where he remained for 2 or 3 days while
his tractor was being repaired. Concerning the dispatching procedures, Allen stated he was
required to notify the Company as soon as he unloaded and it was up to him whether he wished
to go on the dispatching board. However, after his name was placed on the board he had to be
available for cargo, otherwise his name would go to the bottom of the list. In this connection
Allen related one occasion he called the Memphis office and after placing his name on the
board went home, without notifying the dispatcher. Later that evening Allen called in where-
upon the dispatcher advised him he should not have left but that it was not necessary for him
to return that night. The next morning Allen reported to the office and learned that his name
had been placed at the bottom of the list Allen also stated that one time he was "chewed out"
by Diffly because he was an hour late in picking up cargo.
Company witnesses gave slightly different versions of the dispatching procedures.
Woodrow Lambert testified that the driver notified thedispatcher when he was ready to haul
and his name was then placed on the dispatching board for available freight on a first-in
first-out basis. At terminal points the drivers had a choice of available loads and if he de-
clined any of the trips his name went to the foot of the dispatching list. At other points,
particularly in the East the driver had no such choice and, after unloading, he would call the
dispatcher who would simply instruct him to pick a certain consignment. As Lambert never
refused any dispatch in the East he did not know what, if anything, would happen in the event
the driver turned down the assignment In ordinary cases the dispatcher instructed the driver
when the freight would be available for loading and it was then loaded at the convenience of the
driver. The driver also had considerable latitudeas to the time of delivery and Lambert stated
it was not unusual, after loading, to delay departure for 6 or 8 hours Lambert cited one in-
stance when he loaded on Thursday and did not leave for his destination until the following
Monday He admitted this an exceptional case and that he notified the Company in advance of
the expected delay Lambert also stated that after unloading he could, if he wished, take off
1 or 2 days and then inform the Company he was ready to haul again.
Horace L. Evans stated the driver determines when he is available and until he so notifies
the dispatcher he is' not assigned any loads Upon assignment of a load the driver exercises
his own discretion as to the time of pickup and delivery Evans said on occasions he picked up
freight in the Birmingham area bound for New York on Wednesday and, because of the nature
and distance of the haul, he did not leave until Friday. Like other witnesses, Evans said he
reported to the Company after delivery but he determined whether he was available for
freight. At eastern points the driver had no choice of loads but was dispatched on first-in
first-out basis Evans said he had refused loads in the East and was not penalized in any
manner, except that his namewas placed at the bottom of the list. He further stated that on one
occasion he unloaded at Memphis about 2 o'clock in the afternoon and although he did not re-
port in until 9 o'clock the next morning no mention was made of this delay. Evans said that the
drivers, as a general rule, were allowed a delay of 36 hours en route before notifying the
Company and one time he was delayed 48 hours and, while he gave no notice whatever, nothing
was said to him concerning the delay.
D. C. Aiken, Joseph C. Moss, and Lacy G. Farris testified substantially the same as Evans
concerning dispatching procedures Aiken and Moss also corroborated Evans' testimony that
the drivers were not required to notify the Company of any delay en route, provided it did not
exceed 36 hours.
Responsibility for and Use of Equipment
As already stated, Lucas owned his own tractor, which he traded on occasions, during the
time he was hauling for the Company; that he alone selected the type of tractor he used and
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchased and financed the same completely independent of company action and without any
approval or consent on its part . Lucas further said he was responsible for the entire upkeep,
repair , and maintenance of his tractor and furnished gasoline and oil therefore which he
purchased at stations of his own choice. Thedriver, as stated by Moody, Lambert, and Evans
was free to park his tractor wherever he wished and, when not pulling a trailer, was at liberty
to use the tractor for any purpose, other than hauling freight. The drivers, according to Oden,
were not required to remain on company premises while awaiting dispatch at terminal
points, or at any place designated by the Company while away from these points. Aiken and
Moss stated that while on the road the drivers provided their own lodging and meals at places
at their own selection . It is also clear , as related by Moss, that the Company maintained rest-
rooms and shower facilities at its terminals It is equally clear , as stated by Lambert, that
the drivers were not required to wear any specified uniform , nor was there any requirement
that their equipment be painted any particular or uniform color. The value of the tractors
,depended upon type and size, which Oden estimated varied from about $6,500 to $13,000, and
the trailers cost between $4,300 and $5,000. Lambert and Moss testified their tractors cost
about $ 6,500 and $10,000, respectively. Watson said he drove approximately 100,000 miles
per year While Cost did not approximate his annual mileage, he estimated that during the
period October 1950 to October 1952, he made 125 trips for the Company. Oden, on the basis
of the records of 3 drivers , stated the operators grossed from $ 15,000 to $23 , 000 per year
and that from 50 to 60 percent thereof represented their net income Lambert said his gross
revenue for the year 1951 was between $ 14,000 and $15,000 and that his net revenue was
between $ 7,000 and $ 8,000.
Lucas likewise purchased and maintained the tires on his trailer, which Lambert said cost
about $ 800, and as appears in the lease paid 2 percent of his gross revenue to the Company for
the maintenance and upkeep of the same . In the latter instance , Lucas stated he would bring his
equipment to Birmingham and inform Williamson or Norton of the work or service he desired
to be performed on his trailer . Lucas cited one instance when the brakes were relined and
wheel bearings were installed without his request or permission. When he complained to the
shop foreman that wheel bearings had been installed only recently, the foreman admitted the
error and Lucas was not charged for this work . Phillips stated he brought his trailer to
Birmingham for repairs and at least one time he was charged for repairs which he had not
authorized.
Williamson testified that the Company was responsible for the upkeep of the trailers and that
it made such repairs as were necessary to maintain the trailer in running condition as re-
quired by ICC regulations He stated that the shop was operated on a close basis and that the
drivers were charged only for repairs actually made . Oden said the tractors and trailers were
inspected , both on the road and at Birmingham , in order to determine their condition from a
safety standpoint and that the Company daily greases every trailer on its Birmingham lot.
Insurance; Shipping Papers
As appears in the lease agreement , and as stated by Lucas, the Company carried public
liability and property damage on the tractor while it was pulling the trailer but the driver
assumed liability for claims up to $150 If the tractor was destroyed or damaged the driver
suffered the loss Oden said the Company carried cargo insurance, with a $'1,000 deductible
clause. The insurance, according to Phillips, was procured or handled through Markel Insur-
ance Company and in the event of an accident the driver was required to notify the Company
at Birmingham. Thereafter the matter was processed by Markel. Lambert and Aiken testified
the drivers were not allowed to carry passengers while pulling a trailer , except with the per-
mission of the Company
All permits to operate in various States as well as fuel permits , when required , were in the
name of the Company, although as appears above, the driver paid the necessary fees and fuel
taxes . Shipping papers, trip tickets, etc , were made in the name of the Company.
Company Bulletins
Pursuant to stipulation by counsel a largenumberof bulletins issued by the Company during
the period about November 1950 to September 1952 were received in evidence. These bulle-
tins are addressed to all operators or drivers and cover a variety of subjects. In brief, some
MALONE FREIGHT LINES, INC. 1115
of these bulletins set forth specific instructions or rules to be followed by all the drivers,
while others are of an informative character or publicize ICC regulations.5
Exclusion of Drivers from Certain Tax Deductions and Benefits
The evidence uniformly discloses that the Company did not deduct social security, with-
holding, or State unemployment taxes on behalf of the drivers Oden also stated , and it is un-
disputed , that the drivers were excluded from benefits granted to the office and shop employees
of the Company, 6 such as, coverage under workmen ' s compensation , group health, accident
and life insurance , bonus plan , and paid vacations
The Road Patrol
The Company maintained a road patrol of two or three men whose duties , according to Lucas,
consisted of checking the drivers on speed , manner of driving, logbooks , and to a limited
extent the condition of the equipment . Lucas stated that the Company fixed the maximum speed
limit for the drivers, consistent with State or local regulations , at 50 miles per hour. While
Lucas said he knew of no written company rule to this effect, he was certain Mrs. Hurd had
mentioned the same to him and also pointed out the penalties for violation thereof . Lucas re-
lated that at someundisclosed datehe received a letter reprimanding him for driving in excess
of the company speed limit
Oden stated that the Company operated a highway patrol, under the direction of George
Kezziah , for the purpose of enforcing ICC safety rules . He further admitted that the drivers
were instructed in the company speed regulations , set forth above.
Allen said Kezziah informed him of thespeed limit and warned him if he received 3 speeding
reports within a 90-day period, or was caught passing a vehicle on a hill or curve he would
be "automatically discharged."
Deadheading and Equalization of Trips or Loads
At times the drivers made trips which resulted in deadheading , or running empty, which
ordinarily occurred when the driver was dispatched to pick up freight at a place in the opposite
or different direction from the point of delivery . Lucas mentioned two such instances. On one
occasion he deadheaded from New Orleans to Pine Bluff , Arkansas , and another tune from
Greenville , apparently South Carolina , to Chambersburg , Pennsylvania . In the latter case,
Lucas, after unloading , called the dispatcher from Greenville , who instructed him to go to
Chambersburg . Lucas remarked , " its a long ways up there ," whereupon the dispatcher assured
him the Company would make it a "pay load ." Lucas was paid for these trips on the basis of
about 20 cents per mile.
In further explanation of the deadheading practice Evans testified that the Company did not
pay extra compensation for normal deadheading , which embraced trips covering about 150
miles In short Evans stated that on eastern trips anytime the driver deadheads away from
home or the unloading point , he is paid additional revenue. Conversely , the driver is not paid
if he deadheads from the point of unloading to another point in the direction of home , e.g.. the
driver is dispatched from Baltimore to pick up cargo in Richmond destined for New Orleans.
Lucas testified that it was the policy of the Company to equalize preferred or choice trips
among the drivers Thus, after completing two successive round trips between Pine Bluff
Arkansas , and Huntsville , Alabama, considered a preferred haul , Lucas talked tojarrett in
regard to available freight. Jarrett gave Lucas a choice of six loads and Lucas inquired if
he did not have Pine Bluff cargo. Jarrett admitted he did, but that he could not dispatch Lucas
because his records disclosed two successive Pine Bluff trips and in such cases the Company
had a policy or rule whereby it dispatched some other driver on this "choice rate ," who had
5 For example : The operators are advised that if they fail to notify the Company of any
delay of delivery in excess of 36 hours, their lease will be subject to cancellation and that the
"rule" will be enforced (General Counsel's Exhibit No. 10-BB); the Company informs the
drivers that the Memphis Police Department has warned the speed limit of 20 miles per hour
would be enforced and the minimum fine for violation thereof was $51 (General Counsel's
Exhibit No. 10-X); and regulations by ICC concerning mileage entry in the drivers' logbook
(General Counsel's Exhixit No. 10-E).
6 The Company employed about 30 or 35 office employees and about 6 men in the shop.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not made that trip for 6 months Lucas replied he did not desire to be excepted from the
policy or rule and took one of the other loads . Jarrett then dispatched Preston Nile to the
Pine Bluff load, although he was below Lucas on the dispatching board Apparently, Lucas
found out that Nile had made such a trip within the 6-month period so he complained to the
Company Jarrett later explained that he must have made a mistake and examined the rbeord
of Harry Nile instead of Preston Nile . Lucas, seemingly, was satisfied with the explanation.
Lambert, testifying on behalf of the Company, stated there was no discrimination in the
assignment of loads and it was his belief that the Company attempted to equalize trips among
the driver
Oden testified that the Company makes every effort to see that the driver never loses money
on a trip , even though the Company may suffer a loss on that particular load . He further stated that
normally the driver will deadhead about 1Q percent of his total mileage and it is optional with
the driver whether he will take a trip involving an unusual number of empty miles. Where the
driver does make such a trip the Company pays additional compensation so he will not lose
money. In this connection Oden said that in July 1952 the textile industry shut down for the
customary vacation period of about a week or 10 days , and the Company had but little freight
going east , although it did have southbound cargo available at various eastern points. Ac-
cordingly, Oden instructed Williamson and Norton to inform the drivers they could wait until
freight was available before driving to eastern points, or the Company would pay them a
specified amount to deadhead to these points in order to pick up cargo. For example , he said
the Company paid the driver about $150 for the run to Philadelphia, and in all the Company
paid about $ 10,000 to the men for making such trips.
Interchange of Trailers and Drayage Service
Moody testified that in July 1951 he informed the Company of his intention to take time off,
so after unloading at Columbia , South Carolina , he called Birmingham and requested to return
there in order to take a vacation . The dispatcher instructed Moody to go to Atlanta, which he
did, and there he was directed to pick up freight at Anniston consigned to Columbia. Moody
protested that this would interfere with his vacation plans but the dispatcher informed him he
was short of trailers and directed him to pick up the cargo Moody then worked out an agree-
ment , with the Company's permission , whereby he pulled the loaded trailer of Burl Allbright,
destined to New Orleans , to Birmingham while the latter took Moody's trailer on the Columbia
trip. Allbright was to leave Moody 's trailer on the company lot at Birmingham . When Moody
returned from his vacation he learned that his trailer had been used to transport a load of oil
and had also been loaded with cloth and parked on the company lot at Birmingham . These loads
were made without his permission and he received no compensation for the use of his trailer.
It appears that the cloth was loaded for him and that he took the same to its destination, for
which he was paid . Moody also stated that in June 1951 he advised Norton he wished to be off
for 2 days to attend his daughter ' s wedding and requested that during his absence his trailer
be loaded at Birmingham. Norton said he could take time off but asked him to leave the keys to
his tractor . Upon his return Moody found his trailer had been sent to Lanett , about 150 miles
distant, where it was loaded and returned to Birmingham . Moody then took the load to
Philadelphia . He stated that he did not intend his trailer to be loaded outside Birmingham and
that he received no compensation for the trip to Lanett and return to Birmingham In substance,
Moody testified that the Company usually permitted thed rivers to "swap " loads but conditioned
approval on the basis that the drivers pull the trailers until such time as they met empty and
could exchange them, which might extend to 6 months or a year.
Cost stated that during the summer of 1952 he brought his tractor and trailer home and due
to personal reasons he was unable to make delivery of the load within a reasonable time. He
thereupon called Norton and asked that someone else make the trip . Norton then dispatched
another driver , with his own tractor , who pulled the trailer to its destination Cost was not paid
for this portion of the trip . On another occasion Cost said he pulled a loaded trailer, leased
to some other driver , from Memphis to Birmingham and then "bobtailed ," or drove his
tractor , back to Memphis . Cost was paid for this trip.
Phillips said that about 1 or 2 years prior to the hearing Norton asked him to take a trailer
from Birmingham to Sheffield where it would be loaded and return the same to Birmingham.
Phillips made the trip and received $ 50 for the run.
Allen said that in September , apparently 1952, he and Lambert wanted to swap loads but
Jarrett said they should not do so because itmight make some of the other drivers "mad "
Moss cited an instance when his tractor developed engine trouble while hauling a load of
machine guns for the Government so he called Norton and requested someone to make delivery
MALONE FREIGHT LINES, INC. 11 17
for him . Norton suggested that the cargo be transferred to another unit which he would send out
but Moss replied this was too much trouble and it would be preferable to have the replacement
driver simply pull his trailer Moss also requested that upon delivery of the machine guns, his
trailer be loaded and brought to a designated place where he could pick it hp after having his
tractor repaired The suggestions made by Moss were followed.
Williamson said that while at times the drivers exchange trailers the Company does not en-
courage this practice because once a load is dispatched the swapping thereof would probably
affect other drivers dispatched on the same lineup . However, when it is convenient to do so and
the exchange of trailers does not affect the lineup , the Company permits the swapping of loads.
Williamson further stated that when two or more drivers are hauling on the same route they
frequently exchange trailers temporarily while onthetrip. Thus, he pointed out that where one
unit exceeds the maximum weight limit in a certain State the driver will exchange his trailer
with that of adriver pullinga lighter load and, after passing through that State , the drivers will
then switch to their original trailers
Oden testified that while the drivers exchange trailers, as related by Williamson, the Com-
pany does not assign a trailer to another driver without the permission of the lessee of the
trailer involved.
Norton stated that the Company permitted theswappingof trailers in cases where it could be
accomplished without disrupting overall operations
The General Counsel adduced evidence to the effect that the drivers were required to perform
drayage or cartage service for the Company for which they received no compensation.
Phillips stated that during the summer of 1952 he was in Memphis and at the request of
Diffly he drove his tractor to the Firestone plant, in Memphis, where he picked up a loaded
trailer , leased to another driver , and hauled itto the company terminal . About 5 months prior
to the hearing , Phillips, under substantially similar circumstances , picked up a loaded trailer
at the plant of the American Finishing Company and pulled it to the company terminal. Phillips
was not paid for either of these trips and seemingly made no demand for payment upon the
Company
Moody said that in early 1952, while in Memphis, Diffly asked him to take his tractor and
trailer to the Firestone plant and pick up some freight and bring it to the terminal where it
would be unloaded On another occasion Moody used his equipment to pick up some cloth from a
shipper which he hauled to the company yard. Moody was not paid for these trips.
Lloyd Tharpe testified that occasionally thedriver, as a "favor," would pick up freight at the
shippers place of business and bring it to the terminal . Tharpe related two instances, in Mem-
phis, where he picked up cargo under such circumstances . Like the other drivers he received
no compensation for these pickups
D. Initial concerted activities on the part of the drivers
Lucas testified that about Sunday, September 28, 1952, he and three other drivers, R A.
Downs, Pete Scott , and Cost , happened to meet at his home in Siluria and their discussion
finally centered on working conditions and earnings with the Company . These subjects were
usually the topic of conversation everytime the drivers met on the road so the group decided to
get the men together to see what , if anything , could be done in respect thereto. As the drivers
were scattered over a large area and it would be difficult to assemble them at one time the
group , at the suggestion of Lucas, decided to hold a barbecue on October 9, at the American
Legion hut in Alabaster , Alabama . Lucas and the three drivers were due to leave shortly on
trips, in different directions , and eachagreed tocontact every driver he met and pass the word
of the barbecue "by grapevine "
Allen, who had heard of the affair, testified that on the evening of October 2 he and Roose-
velt Schrader were driving thpi r equipment when Ted McGee, a company checker or safety man,
stopped them near the Virginia - North Carolina line. Allen and Schrader got into McGee's car
and the latter stated he heard the drivers were going to have a barbecue. Schrader replied he
had heard some talk about it. McGee asked what the drivers "figure on doing" and remarked if
they had any trouble he would accompany a group of 7 or 8 men to Williamson for the purpose of
discussing the matter with him Allen inquired as to how he knew of the barbecue and McGee
answered it was "common knowledge up and down the highway " McGee said he wished the boys
would get together "on this thing" and "talk this out." He further stated that the Company
could buy their own trucks, which would put the drivers out of business, and if necessary it
could shut down operations since the Company had made its money. He also warned "we are
going to find out who these ringleaders are and get rid of them" because " We don't want
these troublemakers down here " Allen replied he did not know too much about the barbecue,
nor did he know whether the Company could buy its own trucks or would shut down operations.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schrader could not remember the details of the above meeting, other than the barbecue was
mentioned and McGee said he would like to attend. Schrader denied that McGee made the fore-
going statements as related by Allen
McGee Said it was common knowledge that the drivers were having a barbecue but he did not
know the purpose thereof nor where it would be held. He admitted he stopped Allen and Schrader
on the above occasion, although he could not remember the date. McGee also admitted that he
first mentioned the barbecue and requested an invitation to the affair . Both Allen and Schrader
informed him they did not know too much about it. McGee denied making the statements as
asserted by Allen.
The Alleged Discharge of Lucas
Lucas returned home from his trip on October 2, and was informed by his wife that Norton
had telephoned him on two occasions The following morning Lucas reported at the Birmingham
office where he turned in his freight bills for the previous trip. Lucas had also loaded cargo at
Chambersburg, Pennsylvania, destined to NewOrleans, and his trailer, at that time, was parked
at his home . Norton met Lucas and informed him there had been a mixup on the freight and
asked Lucas to bring his loaded trailer to the lot. Lucas agreed to this and brought-his trailer
in that afternoon. Lucas was then called to the office where he met Williamson and Norton.
Williamson stated he understood Lucas was dissatisfied and had been " doing a lot of belly-
aching up and down the road " Lucas replied he was no more dissatisfied than many other
drivers and that there was much "belly- aching done up and down the road ." Williamson also
stated that he had information Lucas had been actively promoting the barbecue as a "get to-
gether for the boys," and Lucas admitted this was true Williamson told Lucas if he was dis-
satisfied, "why don't you quit" and Lucas pointed out he, and the other drivers, had a substan-
tial amount of money invested in equipment and, obviously, could not simply give up this
investment and quit Lucas stated that Williamson " fired me" and then handed him a written
notice canceling his lease and a "drop sheet ," which was authorization to the shop to remove
the company signs from his tractor Williamson said he might have made a mistake and if sub-
sequent investigation disclosed Lucas was entitled to return to work, he could do so. At one
time while Lucas was talking about the barbecue Williamson remarked to Norton that he had
the "right man." After receiving the notices Lucas had the signs taken off his tractor and
removed his tires from the trailer Sometime later , about November 3, Oden or Williamson,
under circumstances set forth below, told Lucas he could return to the Company, if he could
furnish proof of ownership of his tractor Again, about November 11, the Company sent Lucas
a form letter to the effect that if he intended to return to do so by November 15. Lucas said
his equipment had been repossessed by the finance company and he made no effort to resume
relations with the Company
Williamson testified that he learned Lucas had voiced dissatisfaction and unhappiness about
his lease arrangement and was not doing too well financially , so he called him in and canceled
his lease. Williamson further stated thathehad information from some undisclosed source that
perhaps Lucas did not own his equipment, and while he considered this factor in canceling the
lease, he admitted the matter was not mentioned at the meeting of October 3. When Lucas said
the Company was making a mistake in canceling his lease, Williamson replied if the Company
found out this was true the matter would be given further consideration . Williamson said Lucas
brought up the subject of the barbecue and he promptly told him he had not been called in for
that purpose, but ifhewishedto talk about it, he would listen. Lucas then explained the purpose
of the affair and the preparations that had been made. Williamson specifically denied that he,
or Norton, accused Lucas of "belly-aching," or actively promoting the barbecue, nor was any
suggestion made that he quit , or that he was the "right man."
Norton testified to the same effect as Williamson with respect to the discussion of the barbecue.
Events Occurring at the Barbecue; the Interview of Drivers by Oden
On Thursday, October 9, the barbecue was held, although the affair was moved from the
Americal Legion but to Lucas' home. Apparently a large number of drivers attended for
Lucas said they "were pouring in" that evening. Robert Gunn, a former company checker,
was invited to attend and, following discussion by the men, was instructed to obtain advice
from an attorney with respect to forming an organization of the drivers. The group also
elected a committee of five men? for the purpose of meeting with representatives of the Com-
pany. Gunn was to act as spokesman for the committee and to make arrangements for the
meeting. The group further decided that if the committee was unsuccessful in its efforts to
arrange a meeting with the Company by Monday, October 13, the members would notify the
7 Tharpe, J B. Booser, S W. Hill, Curtis Allbright, and Henry Rolfe Subsequently,
Richard Otwell was also elected to the committee.
MALONE FREIGHT LINES, INC. 1119
drivers by telephone at their usual truck stops and they would then pull their equipment off
the road and wait until meetings were held.
Tharpe testified that the Saturday following the barbecue he returned from a trip and while
at the Birmingham lot he was called into the office where he met Oden, Williamson, and
Norton . Oden toldhimheheardthedrivershad hired Gunn and paid hire $150. Tharpe admitted
this was true Oden stated that the drivers did not need Gunn and remarked he was not "even
dry behind the ears yet." He said that the Company had "something good" for the drivers,
which he did not disclose, but that it was coming out although it might take sometime. Tharpe
said it was useless to talk to him because the drivers had appointed a committee which would
be in Monday to meet with him Oden said he did not mind that but he wanted to talk to as
many drivers as he could As Tharpe was leaving Oden told him to send in another driver,
which he did.
Oden said he told Tharpe Gunnhadcalled him requesting a meeting and since Tharpe was an
"independent contractor," he decided tocallhimin.Oden advised Tharpe he did not need Gunn
or anyone else to discuss his affairs with the Company. He stated that if such a practice was
followed operations would become so fouled up everyone would quit. Oden told Tharpe that for
many months the Company had been working on a plan to grant increases, which Gunn knew,
and as soon as the Company had available money the increases would be put into effect. Oden
denied that he questioned Tharpe in regard to the barbecue or concerning his participation in
any concerted activities.
The Company's Refusal to Meet with the Committee, Cessation of Hauling Operations
On October 13, about 35 of the drivers gathered at the Social Grill restaurant in Birmingham
at which time Gunn and the committee reported they had been unable to arrange a conference
with the Company. The committee members thereupon notified the drivers of this action, in the
manner stated above, and it is undisputed that every driver parked his truck and completely
stopped hauling operations.
Oden said Gunn, whom he described a former checker and a law student, telephoned him
several days after the barbecue and stated he wished to talk to him about "some things" that
had been discussed at the gathering. Oden did not talk to Gunn, although he listened in on the
conversation between Gunn and Williamson. When Gunn said he desired to come in and discuss
the situation with Oden and Williamson, the latter replied Gunn was no longer with the Company
and they did not wish to discuss any company business or matters with him. Gunn suggested
that Williamson look into the matter and he repeated they were not interested in dealing with
him concerning any company affairs. Oden stated Gunn may have mentioned that the committee
would accompany him but he could not definitely recall any such statement.
Williamson testified Gunn called him on Saturday, October 11, and informed him the drivers
had had "a discussion" at the barbecue and that he and 3 or 4 of the men would like to meet
with the Company to discuss these matters. Williamson answered he was no longer with the
Company and nothing could be gained by discussing company business with him. He further
informed Gunn that "our door had always been open to our men" and they could see company
representatives anytime they wished to do so.
The stoppage, Oden said, involved approximately 150 pieces of equipment scattered over a
large area whichcarried freightvalued atabout$ 1,500,000. He further stated that the Company
did not wish to be placed in a position of assuming liability for damage that might be caused by
the equipment and in addition he was of the opinion that by refusing to pick up or deliver freight
the drivers had breached their lease agreements. Accordingly, the Company sent letters, dated
October 14, to each of the drivers canceling their leases and directing them to forthwith return
all company property to Birmingham. Thereafter, Oden said when company representatives saw
the drivers they requested them to bring in their equipment, which apparently they did after
some delay.
E. Union organizational activities
Charles M. Pendergast, international representative of the Union, testified that on October
21 he met with 12 or 15 company drivers at the union office in Birmingham. Orwell acted as
spokesman for the group and informed Pendergast the drivers were dissatisfied with their
earnings and had been on strike since October 13. The group inquired if the Union had an
agreement covering owner-drivers and Pendergast explained its southern area agreement con-
tained provisions relating to such operators After some discussion concerning the form
agreement and a comparison made of the earnings under the union contract and the lease
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement, the group requested Pendergast to hold a meeting for all the drivers. Pendergast
agreed and the meeting was held on October 23.
On the above date about 105 drivers attended the meeting at which Pendergast explained the
union agreement. He also informed the drivers the Union would represent them, provided it
was authorized by them to do so. Pendergast then left the meeting. About 20 minutes later
Otwell asked Pendergast to return to the meeting and announced that the drivers had unani-
mously voted to affiliate with the Union. Union- membership application and authorization cards
were then signed by all but two of the drivers. The meeting then resumed and the drivers
authorized Pendergast, M. R Sherman, business agent of the local, and a committee to
immediately call upon the Company. The drivers also agreed to meet the following week.
The Alleged Appropriate Bargaining Unit, the Union's Majority
The complaint alleges that all truckdrivers, excluding supervisors and other employee
classifications, constitute a unit appropriate for the purpose of collective bargaining. The
Company denies the appropriateness thereof.
The record and the stipulations of the parties disclose that as of October 14, 1952, the
Company had lease agreements with 154 drivers and as of October 23, the Union had signed
application-for-membership and authorization cards from 120 of the drivers.
The Union's Attempt to Meet with the Company; the Picket Line
On the morning of October 24, the committee met with Pendergast and at his suggestion the
number thereof was reduced to three members, consisting of Orwell, Lucas, and Tharpe. Pender-
gast then telephoned Oden and was advised by his office he was not available at that time. Pen-
dergast identified himself and requested that Oden return his call. Having received no word
from Oden, Pendergast, Sherman, and the committee went over to the company office the same
afternoon. There Pendergast asked to see Oden but instead met Williamson. After introductions,
Pendergast advised him an overwhelming majority of the drivers had authorized the Union to
represent them and requested a meeting with management for the purpose of obtaining recog-
nition and to negotiate an agreement covering wages, hours, and conditions of employment.
Williamson replied that Oden was the only person who had authority to handle such matters.
Pendergast inquired when he could see Oden and he was informed Oden was in Florida but
would return sometime the following week. Pendergast asked Williamson to convey his request
to Oden, which he promised to do. The meeting concluded with Pendergast stating he would
confirm their discussion by letter.
The next day Sherman sent a registered letter to the Company reiterating the events tran-
spiring at the meeting and stated that the Union was willing and ready to meet with Oden.8
The Union received no answer to its request for a meeting with the Company.
Williams testified Pendergast stated he wanted to discuss "our present troubles" and he
informed him Oden was the only person whocould discuss such matters and that he was out of
town. Williamson "didn't hear" Pendergast state that the Union represented a majority of the
drivers, nor did he offer any evidence that he had been authorized to represent the men. When
Oden returned to the office several days later Williamson reported the above events to him.
Lucas stated that on October 27 apicketline was placed at the Company's place of business,
which Sherman said was maintained for a period of 5 weeks.
The Company Meeting of November 3; the Granting of Benefits to the Drivers
Williamson stated that he had received calls from some of the drivers expressing a desire
to resume hauling, so on November 2 he and Norton telephoned a number of the men concern-
8Sherman said he met with Attorney Maurice Bishop whom he had known for about 3 years,
at the latter's request, on Sunday, October 26. In brief, Bishop asked what the Union wanted
and Sherman replied he desired to meet with the Company and negotiate a contract similar to
its southern area agreement. Sherman gave Bishop a copy of the agreement, who stated the
Company was having a meeting of the board of directors on Tuesday and that he would can
him. Sherman called Bishop and was informed that the Company decided not to meet with the
Union. Sherman admitted that neither the Company nor Bishop ever advised him that he was
authorized to act on behalf of the Company. Bishop asserted he never represented the Com-
pany in any labor matters and denied that he ever advised any union representatives that he
was authorized to do so. The undersigned so finds.
MALONE FREIGHT LINES, INC. 1 121
ing this situation and advised them a meeting would be held at the company office the following
day.
On the morning of November 3, Williamson and Norton held a meeting with about 65 drivers.
Williamson told them the Company was anxious to resume operations, that they had no in
feelings towards the men, and wanted all of the drivers to return to work. He further stated that
the Company had planned to grant additional compensation about the first of the year but due
to the stoppage it would become effective at once. In explaining the compensation Williamson
said the percentage paid on explosives and ammunition was being increased from 65 to 70
percent and that in the future the Company would assume the expense of maintaining the run-
ning gear of the trailers. In addition, he stated that the 2 percent charged for the general up-
keep of the trailer would be limited to a maximum of $ 250 annually, whereas previously it had
been a straight 2 percent of the gross revenue, without any limitation as to time or amount.
Williamson informed the men these benefits could result in an increase up to $1,,000 per year.
Williamson also advised the drivers that the Company would do everything it could to avoid
misunderstandings, that it would obtain qualified employees for its operations and when com-
plaints did arise it would discuss them with the drivers individually.
Williamson adrrutted the Company did not inform the Union that it was granting the foregoing
benefits to the drivers.
At this meeting someone asked Williamson if Lucas could return to work and he answered
that he could, but thathewouldbe required to give additional proof of ownership of his vehicle.
Lucas said he was on the picket line the morning of November 3, and, at Williamson's invi-
tation, attended the meeting. Lucas testified substantially the same as Williamson concerning
the additional compensation. He stated that during the meeting one of the drivers asked why
the Company "didn't want the Union there," and Williamson answered he did not believe the
Union understood the problems the owner-drivers have with an irregular carrier and "he
would rather not try to have the union contract." However, he said he did not care if the
drivers became members of the Union. When Williamson announced Lucas could return to work
if he produced proof of ownership of his tractor, he asked Williamson why that matter had not
been mentioned at the time of his discharge. Williamson said they were still investigating it at
that time. -
The meeting apparently concluded when Lucas and some of the drivers suggested that the men
go over to the union hall.
The Union Meeting of November 3
Lucas said that on the afternoon of the above date about 60 or 70 of the drivers met at the
union hall. Lucas stated that some of the drivers wanted to vote on whether they would remain
in the Union and when this request was refused about 25 or 30 of the men walked out.
Sherman presided at the meeting and someone asked that a vote be taken on whether the
drivers would return to work and when he refused to do so about 25 or 30 of the men walked
out. The drivers who remained then voted to maintain the picket line.
The Resumption of Operations
On November 4, some of the drivers signed lease agreements with the Company which were
in the same form as the previous leases, except for the increased rate on explosives and am-
munition and the limitation of $250 per year for trailer maintenance. On November 11, the
Company notified the drivers to return by November 15. As of the date of the hearing 117
drivers, all of whom had had previous leases, executed new agreements with the Company.
The Alleged Loss of the Union's Majority
The record and the stipulations of the parties disclose that at various times between
November 7 and December 11 approximately 64 of the drivers who had signed union-member-
ship and authorization cards sent letters to the Union withdrawing or canceling the same. At
the hearing approximately 109 drivers joined in a motion for leave to intervene on the ground
that they did not desire the Union to represent them for the purpose of collective bargaining.
Preliminary Findings with Respect to the Alleged Unfair Labor Practices
From the facts set forth above the undersigned has no difficulty reaching the conclusion
that Oden and Williamson were fully cognizant of the plans made by Lucas and his fellow
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers to hold a barbecue for the purpose of initiating some action toward bettering their
working conditions and earnings. McGee, the checker, admittedhe stopped Allen and Schrader
while they were on the road and during his conversation with them brought up the subject of
the barbecue and requested an invitation to the affair. Allen testified that McGee asked what
the drivers intended to do and suggested that if they had any trouble he would loin a small
group of them and arrange to discuss their problems with Williamson. McGee also told Allen
that the Company could put the drivers out of business by purchasing its own equipment or,
if necessary cease operations. He further warned that the Company did not want any "trouble-
makers" and that we intend to find the "ringleaders" and "get rid of them." McGee denied
making any such statements. Schrader could remember little of the meeting, other than McGee
said he would like to attend the barbecue. He denied hearing McGee make the statements as
asserted by Allen. McGee's version of this meeting is not persuasive. While he conceded that
it was common knowledge the drivers were holding the affair he said he did not know the
purpose thereof and simply asked for an invitation to the same. It strikes the undersigned that
if the coming barbecue was so well known by McGee, as well as Oden and Williamson, that the
purpose thereof could scarcely have been kept secret or confidential. The undersigned there-
fore accepts the testimony of Allen and finds that McGee stopped Allen and Schrader in order
to question them concerning the barbecue, to offer his services in arranging a meeting with
the Company , and to warn them against the consequences of engaging in concerted activities to
better their working conditions and earnings.
Again, on October 2, about a week prior to the barbecue, Lucas was called into the office
and his lease canceled for the reason, as stated by Williamson, that he had expressed dissat-
isfaction with the arrangement and was not doing too well financially. Williamson said the
barbecue was discussed, although it was Lucas who brought up the subject. Admittedly, no
other leases were canceled at or about this time. Lucas testified that Williamson accused him
of being dissatisfied with working conditions and complaining about the same, and suggested
that he quit the Company. Moreover, he accused Lucas of promoting the barbecue, which
Lucas conceded, whereupon Williamson declared he had found the "right man." Williamson's
denial of this statement is rejected. When Lucas informed Williamson he had a substantial
amount of money -invested in his equipment, hence he was in no position to quit, Williamson
promptly handed him a written notice of lease cancellation and a drop sheet which he had
previously prepared for the occasion. The timing and circumstances under which Williamson
canceled the lease agreement with Lucas make it abundantly clear that in taking this swift
action he was motivated by a desire toeliminate the leader of a group of drivers then actively
and openly engaged in the initial step toward organization of the men. Williamson's testimony
that there was some question in regard to Lucas owning his equipment is wholly without sub-
stance and is rejected for it is undisputed this matter was not even mentioned at the time the
lease was canceled.
The undersigned also makes the following findings:
At the barbecue the drivers formulated plans for an organization, employed Gunn, and
appointed a committee for the purpose of meeting with the Company to discuss working condi-
tions. Both Oden and Williamson concede that prompt requests by Gunn for a meeting were
summarily refused, and that on October 13 there was a full and complete cessation of hauling
operations Meantime , on October 11, immediately following Gunn's request for a meeting,
Oden called the drivers into the office where, as credibly stated by Tharpe, he advised the
drivers they did not need Gunn, whom he characterized as not "dry behind the ears," to
represent them and that the Company had "something good" in store for the drivers . The day
after the stoppage occurred, October 14, the Company sent letters to each of the drivers
advising them their leases had been canceled and directing them to return all company equip-
ment to Birmingham . The undersigned entertains no doubt that the mass cancellation of the
leases, as in the Lucas case, was motivated by a desire to frustrate and discourage the
drivers from participating in concerted activities , as well as an effort to break the work
stoppage which unquestionably had be 'n precipitated by the Company's refusal to meet with
the representatives of the drivers.
Following their unsuccessful attempts to obtain a meeting with the Company a group of the
drivers called upon Pendergast and expressed their desire for organization and representa-
tion by the Union On October 23, the Union held a general meeting for the drivers at which
approximately 105 signed union-membership application and authorization cards.
The next morning Pendergast telephoned Oden and, upon being informed that he was not
available , asked that he return the call Odendid not return the call, so that afternoon Pender-
gast and the union committee went to the Company's office where they met Williamson. Pen-
MALONE FREIGHT LINES, INC. 1123
dergast advised him the Union represented a majority of the drivers and requested a meeting
for the purpose of securing recognition and to negotiate an agreement . Williamson said Oden
was the only person authorized to handle such matters and that he was in Florida at the time.
Pendergast asked Williamson to convey his requests to Oden, which he promised to do. The
next day the Union addressed a letter to the Company reiterating the foregoing events and
stating it was ready and willing to meet with Oden The Company made no response to the
Union's requests for a meeting. On October 27, the Union established a picket line at the
Company's place of business which it maintained for about 5 weeks.
In the above interval, and particularly about November 2, the Company directly contacted
the drivers and the next morning some 65 of the men met with Williamson and Norton at the
company office There Williamson told the men the Company was anxious to resume operations
and desired all of the drivers to return to work Williamson explained to the group that the
Company had planned to grant certain benefits about the first of the year but since they had
engaged in a stoppage the benefits would be made effective at once These benefits consisted
of an increase of 5 percent on hauling explosives and ammunition and complete maintenance
on trailers for $ 250 annually, which Williamson explained could result in an increase of
$1,000 per year In addition, he informed the group that the Company would make every effort
to avoid misunderstandings in the future, that it would seek qualified employees and when com-
plaints did arise it would discuss them with the drivers individually. In response to a query
propounded by one of the drivers as to the reasons for the Company not wanting the Union,
Williamson replied that it did not understand the problems of owner-drivers with an irregular
carrier, therefor he would "rather not try to have the union contract," although he did not
care if the drivers became members thereof After this meeting the same drivers met at the
union hall where some of them requested that a vote be taken on whether they would return to
work, or whether they would remain in the Union. Sherman, who presided at the meeting, re-
fused to take such a vote but announced that any man who wished to return to work was free to
leave the meeting About 25 or 30 of the drivers then walked out and the remainder voted to
maintain the picket line. Immediately thereafter, the Company commenced signing new lease
agreements with the drivers, containing the benefits announced by Williamson, and as of the
date of the hearing, January 13, 1953, approximately 117 of the drivers had executed new
agreements.
From the foregoing the undersigned concludes that the work stoppage was caused by the
Company's refusal to meet with the committee appointed by the drivers. It is undisputed that
while the stoppage was current a vast majority of the drivers duly authorized the Union to act
as their representative for the purpose of collective bargaining. When the Union sought to
carry out its duties as the exclusive bargaining representative of the drivers the Company
simply ignored its demands for recognition and bargaining conferences. This action on the
part of the Company prompted the Union to picket at its place of business Not only did the
Company adamantly refuse to meet with the Union but it also contacted the drivers individually
and arranged a meeting with them at which it offered substantial increases to the men if they
would abandon the stoppage and resume hauling operations. Its efforts in this respect proved
to be successful Of course, it is well settled that such a course of conduct constitutes a
violation of Section 8 (a) (5) and (1) of the Act, provided it is directed against employees as
defined therein. It is equally well established that where the bargaining agent suffers a loss
of majority as a consequence of the employer's unfair labor practices he may not urge such
deflection as a defense to a refusal to bargain with the representative of his employees
The Employment Status of the Owner-Drivers
The primary question here, as conceded by all the parties, is whether the individuals are
employees or independent contractors as defined in the Act. This question, as stated by the
Board in Oklahoma Trailer Convoy, Inc , (99 NLRB 1019), has been passed upon frequently by
both the Board and the courts. There the Board held the determination of whether an individual
is an employee or an independent contractor requires the application of the common law
"right of control" test Under this test an employer-employee relationship exists where the
person for whom the services are performed reserves the right to control not only the end
to be achieved but also the means to be used in reaching such end The Board further pointed
out that the resolution of the question depends on the facts of each case and no one factor is de-
terminative This principle has been approved and sanctioned by the courts in Greyvan Lines,
322615 0 - 54 - 72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc. v. Harrison: 9 U. S. v. Mutual Trucking Company;10 and N. L. R B. v. Nu-Car Carriers,
Inc. 11
In the Oklahoma Trailer Convoy case, the Board, under similar though not identical lease
arrangements as in the instant case, held the owners of trucks leased to the company to be
independent contractors rather than employees There the company was engaged in the inter-
state transportation of house trailers and leased a large number of trucks from owners most
of whom drove themselves, although some of the owners employed drivers. The owners were
compensated on a mileage basis The Board stressed the fact that the bona fide and absolute
ownership of the trucks by the owners warranted an inference of that control over the manner
of performance which is associated with the status of an independent contractor. In addition
the Board found the owners retained substantial independence in their operations by deciding
when or whether they will take an assignment, to selecting their own routes, fixing the time
of delivery and return, their responsibility for keeping their equipment in goodcondition, and
selecting their own maintenance facilities. The owners were required to pay most of the
license fees and the company did not withhold taxes nor pay social-security taxes on them.
While the company reserved and exercised certain control over the work of the owners and
their drivers, and in isolated instances exerted pressure to effect the termination of drivers
it did not approve, nevertheless the Board held that such reservation and exercise of control
was directed essentially to the end to be accomplished, namely the delivery of trailers in
conformity with ICC rules and regulations, and were not inconsistent with the independent
contractual relationship
In the Greyvan case the company, a motor carrier, was engaged in the interstate transpor-
tation of household goods and maintained offices at various cities for the purpose of soliciting
business. For many years the company had contracts with truck owners under which the latter
agreed to haul exclusively for the company and to furnish their own trucks and all equipment
necessary to pick up, handle, and deliver shipments, to pay all expenses of operation, to furnish
certain insurance specified by the company, to pay for all loss or damage to shipments, and to
indemnify it for any loss caused by them or their employees The trucks bore the company in-
signia and the owners agreed to personally operate the trucks or to be present when a compe-
tent relief driver was driving, except in emergencies when a substitute might be employed
with the approval of the company, and to follow all company regulations and instructions. All
shipping papers were between the company and the shipper and the owners collected all money
for shipments, for which they posted bond, which money was turned over to the company. The
owners received a percentage of the tariff charged and a bonus for satisfactory service. The
contract was terminable at any time by either party Prior to the commencement of hauling
operations the owners were required to take a short course of instruction in the company's
business methods. The company also issued instructions as to where and when to load freight,
and if cargo was tendered to the owners they were required to notify the company so it could
complete the necessary shipping papers The company maintained a staff of dispatchers who
issued orders for the movement of freight, although not the routes to be used, and at intervals
the owners were required to report their positions to the dispatchers. Cargo insurance was
carried by the company and all permits, certificates, and franchises necessary to the operation
of the equipment under Federal or State law were obtained at the company's expense. At the
time the company had a collective-bargaining agreement with a local of the same International
Union involved in the present case covering these owners. The issue before the court was
whether the owner-drivers were employees as defined in the Social Security Act. 12 The court
held that since the owner-drivers owned their own trucks and the lease arrangements left so
much responsibility for investment and management they must be considered "small business-
men" and not employees of the company. Under all the facts the court stated: "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."
In the Nu-Car Carriers case the company and the owner-operator executed simultaneous
sale and lease agreements whereby the company agreed to sell a tractor to the owner-operator,
9 156 F 2d 412 ( C. A. 7), affirmed sub-nomine U. S v, Silk, 331 U. S. 704.
w 141 F. 2d 655 (C A. 6).
11189 F 2d 856 ( C. A. 3), cert . denied 342 U. S. 919.
12 I R C , chap. 9 , sub-chap A, Sec. 1426 (b), as amended, 53 Stat 1384:
The term "employment" means any service performed ... by an employee for the
person employing him .. except--
MALONE FREIGHT LINES, INC. 1 125
for a small down payment, which it then leased from him. The owner paid the balance thereon
at a stated mileage rate out of his earnings from the lease agreement. Title to the tractor re-
mained in the company and it reserved the right to purchase the tractor at the average "as is"
value upon the termination of the agreement for any reason. The court, in sustaining the
Board's order, held, "The agreements themselves, without more, make it clear that the re-
spondent's drivers are not independent contractors even under the strictest common law
agency tests " It is sufficient to state that the foregoing facts are clearly distinguishable
from the facts in the matter under consideration
The principle established in the above cases is controlling in the present case Further, the
close analogy of the lease arrangements and operating practices and procedures in the Okla-
homa Trailer Convoy, and Greyvan cases with those in the present case leads the undersigned
to conclude that the owner-drivers are and were independent contractors.
Concluding Findings
The undersigned finds that since 1946 the Company conducted its hauling operations through
lease agreements with owner-drivers and in 1949 instituted a system of leasing trailers to the
owner-drivers In order to engage in hauling operations the driver submitted an application to
the Company describing the type of equipment owned by him, his driving record, and refer-
ences. Upon acceptance of the application, and after passing a physical examination given by
his own physician, the driver and the Company executed agreements in the form described
above. Thereafter the driver was briefed on company operating practices and procedures as
well as the rules and regulations of ICC and its insurance carrier. From time to time the
Company also distributed bulletins to the drivers covering these subjects as well as other
matters pertaining to hauling operations.
It is undisputed that the driver selected his own type and make of tractor and purchased and
maintained the same completely independent of any company action or approval, except as to
safety requirements. On the other hand the Company for a stated percentage of the gross reve-
nue maintained the trailer, except for the tires which were the property of the drivers. Both
the driver and the Company had substantial amounts invested in equipment, the value of the
tractors varying between $6,500 and about $10,000 and the trailers costing between $4,300
and $5,000 It is conceded that tractors bore company insignia, the drivers hauled cargo ex-
clusively for the Company, that they were prohibited from carrying passengers while trans-
porting freight without the consent of the Company, and were responsible for any damage or
loss of cargo while in transit. It is also undisputed that the Company carried public liability
and property damage insurance on the tractor when engaged in hauling operations The drivers
were also responsible for the payment of necessary license fees and taxes, other than the
Alabama Mileage tax which was paid by the Company, and to pay any labor costs incurred in
the operation of the equipment or in loading or unloading freight. Admittedly the drivers were
compensated on a straight percentage basis, which was paid to him immediately upon present-
ment of properly executed shipping papers Where the driver ran an unusual number of empty
miles he received additional compensation. The driver was not required to keep his equipment
at any particular place and received no compensation while awaiting assignment of freight.
When not pulling a trailer he was free to use his tractor for any purpose, except hauling freight.
It is further admitted that the Company did not deduct or pay social-security taxes on amounts
earned bythedrivers , nordid it deduct withholding taxes, nor pay State unemployment taxes, or
carry workmen's compensation on these men. Again, thedrivers did not receive or participate
in certain benefits granted and available to company employees such as paid vacations, group
life, health and accident insurance, or bonus or retirement plan
In the conduct of its business the Company solicited freight from many shippers and during
the time in question maintained offices or terminals at Birmingham, Atlanta, and Memphis
At those points the Company employed dispatchers who assigned freight to the drivers. The
evidence clearly shows that when the driver was in the vicinity of the terminals and was ready
to haul he would so notify the dispatcher who would place his name on the call board. He was
then dispatched on a"first-in first-out" basis and had a choice of available loads in terminal
areas. Normally, the dispatcher simply informed thedriver of the location of the freight, when
it would be available for pickup, and its destination. The driver then obtained the cargo and
delivered it to the consignee without regard to any time schedule or route. However, where the
ICC franchise required the Company to use specified routes the driver, of course, used the
same and punched clocks at certain points to indicate the freight had passed through the re-
quired route After unloading the cargo thedriver was required to notify the company by tele-
graph or telephone. If the driver was in the vicinity of Atlanta or Memphis he would notify the
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate dispatcher and from any other point he would notify the dispatcher at Birmingham.
Upon receiving such notification the dispatcher would ask if the driver was available for
another load and if the answer was in the affirmative his name would be placed on the call
board He would then be dispatched in accordance with his standing on the board . In the eastern
States the driver had no choice of loads, but if he refused to accept an assignment his name
was simply placed at the bottom of the list.
The General Counsel and counsel for the Union contend that the Company compelled the
drivers to go on the call board and to be available for loads. Thus, Phillips cited 3 instances,
occurring over a period of 2 or 3 years , concerning dispatching procedures. On one occasion
he told the dispatcher he did not want to haul a load of rice because it might get wet but he was
informed the rice had to be moved, so he took the load On another occasion he argued with
the dispatcher for the reason he was given a different load than the one promised but he
accepted the load when the dispatcher threatened to cancel his lease Finally, when lie asked
Williamson not to dispatch him to a certain area, because the people were disagreeable,
Williamson told him he could pull his tires off the trailer and haul for someone else. Again,
when Watson and Green refused to accept a load because of the low tariff, they were called to
Birmingham where Watson had an argument with Williamson in the course of which he told
Williamson he could not operate on that type of freight and as a consequence his lease was
canceled The letter of cancellation stated, apparently at Watson ' s suggestion , that he had
elected to quit hauling for the Company . About 17 months later Watson resumed hauling for
the Company Cost related one instance where he asked the dispatcher if he had any other trips
and he was informed if hedid not want the trip assigned he could come to Birmingham and pull
his tires off the trailer Cost madethetrip. Allen testified that in accordance with his briefing
and instructions contained in a company bulletinthedriver was required to notify the dispatcher
after he had unloaded, which "automatically" placed him on the dispatching board. However,
Allen, in describing the dispatching procedures plainly stated that it was up to the driver
whether he would go on the board and once his name was placed thereon it meant he was avail-
able for cargo From his testimony it seems clear that if the driver refused a load or could not
be reached by the dispatcher his name was placed at the bottom of the dispatching list. Moody
testified the driver had to call in after unloading but it was his choice whether he would go on
the call board If he was not ready to haul he received no further dispatches until he notified
the Company he was available The testimony of the witnesses called by the Company is to the
same effect as that related by Moody
The undersigned entertains no doubt as to the occurrence of the acts related by Phillips and
Cost . At best they can be considered as normal complaints respecting the assignment of
freight and utterly fail to warrant any inference that the Company thereby reserved or exerer-
cised any right to control the means used by the drivers in their overall hauling operations.
Watson's refusal to haul a particular load of freight because of the low tariff and his argument
with Williamson on this point, which resulted in the cancellation of his lease, is likewise insuf-
ficient to support an inference of company control as stated above. Moreover , since Watson's
complaint was directed toward a matter over which the Company had no control and could af-
ford no remedy the undersigned is of the opinion that Williamson was justified in canceling
his lease . In any event this isolated action does not infer the existence of an employer-employee
relationship, and the Board so held in the Oklahoma Trailer Convoy case.
In his brief counsel for the Union argues the trailer lease agreement is but acsham since the
Company made inspections ofthetrailers and performed work not authorized by the driver, the
drivers exchanged trailers despite the prohibitions of the lease, the driver received no compen-
sation when his trailer was pulled by another driver, and in November 1952 the Company uni-
laterally changed the terms of the trailer agreement. Oden admitted that tractors and trailers
were inspected both on the road and at its Birmingham lot and that all trailers on the lot were
greased every day. These services were rendered as safety measures in line with ICC regula-
tions and the undersigned fails to see where they are contrary to the terms of the lease agree-
ments The record reveals 2 or 3 cases where unauthorized repairs were made upon trailers,
but as Lucas testified when he complained about the repairs the error was immediately cor-
rected. In substance , Oden, Williamson , and Norton said that while the Company did not en-
courage the swapping of trailers the practice was permitted in some instances when requested
by the drivers and where it could be accomplished without unduly disrupting hauling operations.
However, the Company did not assign a trailer to another driver without permission of the
lessee. On this point the General Counsel offered the testimony of Moody, who stated that in
order to take a short vacation he swapped trailers with another driver and when he returned
he learned his trailer had been used on a trip for which he received no compensation The
MALONE FREIGHT LINES, INC. 1127
swapping in this case was requested by Moody and another driver and in view of the somewhat
complicated arrangements involving the drivers and various dispatchers the undersigned does
not doubt that Moody ' s trailer was used on one trip while he was away. Moody told Mrs. Hurd
he thought he should be paid for the use of his tires but the record fails to disclose her reply
thereto . In any event he was not paid for the trip and admittedly he filed no claim therefor, nor
did he discuss the matter with any company officials or dispatchers . Again, Moody testified
that when he was about to take off a few days he requested Norton to have his trailer loaded
when he returned Norton did so , but sent the trailer about 150 miles to pick up the load. Moody
said he did not intend his trailer to be loaded outside Birmingham and he was not paid for the
above trip. It plainly appears that the Company accommodated Moody in obtaining cargo for
him in his absence and since there is no evidence that Moody informed Norton to load only in
Birmingham , he is scarcely in any position to complain . Cost also stated that when , for per-
sonal reasons , he was unable to make a delivery he requested another driver haul his trailer,
which was done Likewise , Cost once pulled a trailer for another driver for which he was
compensated . Moss related a similar situation when his tractor broke down and another driver
took his trailer . There is also evidence that the drivers themselves temporarily exchanged
trailers , without any notice to the Company , in order to comply with weight restrictions in some
States Since the Company did not assign a trailer to another driver without the consent of the
lessee and the foregoing swapping instances werefor the convenience of the drivers , or emer-
gencies, the undersigned finds these practices were not in . conflict with the provisions of the
lease agreement The undersigned attaches no importance to the unilateral changes in the terms
of the lease agreement , or hauling methods, insofar as they relate to the status of the drivers.
In the Oklahoma Convoy Trailer case, the Board pointed out that the Company unilaterally
fixed a higher rate than contained in lease, without formal amendment of the lease , but this
action did affect the Board's ultimate decision in the case
The Company, as detailed above , paid the drivers extra compensation for dead heading an
unusual number of miles and in a general manner attempted to equalize or spread trips among
the drivers The lease agreement is silent in regard to these practices and the General Coun-
sel and counsel for the Union contend these factors, plus the performance of free drayage
service, indicate an employer - employee relationship . The undersigned cannot agree It is
sufficient to say that there is no convincing evidence that the drivers were compelled to
accept such trips, hence it cannot be said that they were , in this respect, subject to company
control The attempt to spread choice paying trips among the drivers thereby equalizing their
earnings , at least to that extent , apparently met with the approval of the drivers , as expressed
by Lucas, and the undersigned finds nothing objectionable in this policy Equally without sub-
stance is the argument that the performance of free drayage service reflects the insincerity
and incompleteness of the lease agreements While at times the drivers did make runs of this
type , they were not required to do so, and , as stated by Tharpe , they occasionally picked up
freight as a "favor " to the Company
Other grounds asserted by the General Counsel and counsel for the Union as indicating
the existence of an employer - employee relationship , such as the Company road patrol, pro-
viding shower facilities , etc , are wholly inadequate to support this contention.
Here the agreements themselves , and the events immediately preceding and culminating in
the execution of the agreements , unmistake bly show that the parties established , and intended
to establish , the owner - driver as an independent contractor in the performance of services for
the Company . Moreover , the evidence , considered in its entirety , plainly demonstrates that the
Company did not reserve the right to control the manner or means used by the owner -driver
in achieving the ultimate objective of the agreements , nor did it in fact exercise any such con-
trol over him. Under all the circumstances the undersigned finds the owner -drivers to be ui-
dependent contractors within the meaning of the Act.
Upon the foregoing findings of fact and upon the entire record in the case , the undersigned
makes the following:
CONCLUSIONS OF LAW
1 The operations of the Respondent , Malone Freight Lines, Inc., occur in commerce , within
the meaning of Section 2 (6) and (7) of the Act
2 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, and Local 612, an affiliate thereof, are labor organizations within the meaning
of Section 2 (5) of the Act.
1 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The owner-drivers with whom the Respondent, Malone Freight Lines, Inc., had contrac-
tual relations were at all times material independent contractors within the meaning of
Section 2 (3) of the Act.
4. The Respondent, Malone Freight Lines, Inc., has not engaged in unfair labor practices
as alleged in the complaint, within the meaning of Section 8 (a) (1), (3), and (5) of the Act.
[Recommendations omitted from publication.]
INDUSTRIAL LUGGAGE, INC. and ALBERTA MOCEIKA, Peti-
tionerand UNITED STEELWORKERS OF AMERICA, CIO,
AND ITS LOCAL 4467. Case No. 6-RD - 90. September 16,
1953
DECISION AND ORDER
Upon a petition for decertification duly filed under Section
9 (c) of the National Labor Relations Act, a hearing was held
before Sidney Lawrence , hearing officer . The hearing offi-
cer's rulings made at the hearing are, free from prejudicial
error and are hereby affirmed. The Unions ' motion to dismiss
the petition as premature , decision on which was reserved by
the hearing officer for the Board , is granted for the reasons
stated in paragraph 3, below.
Upon the entire record in this case the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The Petitioner , an employee of the Employer , asserts
that the Unions are no longer the representative , as defined in
Section 9 ( a) of the Act, of the employees designated in the
petition.
The Steelworkers was certified by the Board on November 13,
1950, and is currently recognized , jointly with its Local 4467,
as the bargaining representative of such employees.
3. No question affecting commerce exists concerning the
representation of the employees of the Employer within the
meaning of Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act,
for the following reasons:
The Unions assert that their current agreement with the
Employer is a bar to this proceeding . ' The agreement was made
and became effective July 15, 1952, and will terminate
January 15, 1954. It contains aunion-security clause which con-
forms to the requirements of Section 8 (a) (3) of the Act, as
amended , except that Local 4467 was not in compliance on the
date the clause became effective . It had been in compliance for
a 3-month period ending in June 1952, but was thereafter in a
noncompliance status until January 27 , 1953 , when it again
achieved compliance , this time for a 2-month period . The decer-
tification petition was filed May•18, 1953 , at a time when Local
1 The Petitioner introduced evidence as to the recent inactivity of Local 4467, occasioned
partly by the layoff of all its officers. We are satisfied , particularly in view of the wage
increase recently negotiated by the Unions under the agreement , that the Local is not defunct.
106 NLRB No. 179.