Penn Truck Painting and Lettering Corp.

National Labor Relations Board - Board Decisions

Dec 23, 1974

215 N.L.R.B. 843 (N.L.R.B. 1974)

PENN VERSATILE VAN DIV. OF PENN TRUCK 843
Penn Versatile Van Division of Penn Truck Painting
and Lettering Corp . and Local 710, International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Petitioner. Case
13-RC-13257
December 23, 1974
DECISION AND CERITIFICATION OF
REPRESENTATIVE
BY MEMBERS FANNING, JENKINS, AND KENNEDY
1. The Employer is engaged in commerce within the
meaning of the Act and that it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of employees within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
4. The following employees of the Employer consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
Pursuant to a Stipulation for Certification Upon
Consent Election, an election by secret ballot was con-
ducted under the direction and supervision of the Re-
gional Director for Region 13 on February 11, 1974,
among the employees in the appropriate unit. At the
conclusion of the election, the parties were furnished
with a tally of ballots which showed that of approxi-
mately 12 eligible voters 12 cast ballots, of which 5 were
for, and none against, the Petitioner, and 7 ballots were
challenged. The challenged ballots are sufficient in
number to affect the results of the election.
In accordance with the National Labor Relations
Board Rules and Regulations, Series 8, as amended, the
Regional Director for Region 13 conducted an investi-
gation and, on February 26, 1974, issued and duly
served on the parties his Report on Challenges and
Notice of Hearing. The Regional Director found that
the challenges raised material and substantial issues
which could best be resolved on the basis of record
testimony at a hearing, and directed that a hearing be
held to resolve those issues. Thereafter, a hearing was
conducted on March 11, March 20, March 26, March
28, April 11, and April 15, 1974, by Hearing Officer
John R. Loihl. All parties were afforded opportunity to
be heard, to examine and cross-examine witnesses, and
to introduce all relevant evidence bearing upon the
issues in the case.
On June 21, 1974, the Hearing Officer issued his
Report on Challenges in which he recommended that
the petition be dismissed on the basis that all unit em-
ployees, including those challenged, as well as those
who voted without challenge, are independent contrac-
tors, and thus excluded from the Act's coverage. There-
after, Petitioner filed timely exceptions to the Hearing
Officer's Report on Challenges and a brief in support
thereof. The Employer filed a statement in opposition
to Petitioner's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board finds:
All regularly employed truck drivers employed
by the Employer at its facility in Chicago, Illinois,
but excluding office clerical employees, profes-
sional employees, production and maintenance
employees, guards, supervisors as defined in the
Act, and all employees represented by other labor
organizations.
5. The Board has considered the Hearing Officer's
Report on Challenges, the exceptions and briefs, and
the entire record in this proceeding, and hereby adopts
the Hearing Officer's findings and recommendations
only to the extent consistent herewith.
The Hearing Officer, over the objections of the Peti-
tioner, permitted the Employer to proffer evidence
relating to the alleged independent contractor status of
Laverne Graham, Ron Nowacki, Phillip M. Lappin,
Peter E. Daley, and Dean A. Coddens, all of whom
voted in the election pursuant to a stipulation and with-
out challenge by either party. The admission of such
evidence and the finding that the unchallenged voters
were independent contractors was clearly in error.
In Eck Miller Transportation Corporation,' the
Board refused to reject the parties' stipulation and or-
der a hearing on the issue of employee/independent
contractor status of drivers. The Board stated, "Fur-
thermore, if we ordered a hearing on this issue under
the above circumstances, we would be establishing a
policy which would preclude a consent election and
would require conducting a hearing whenever an in-
dependent contractor issue could possibly exist regard-
less of the position taken by the parties. Such a proce-
dure is even more inappropriate when one considers
that independent contractor issues present close factual
questions which are clearly susceptible to stipulation of
the parties." In the present case, the stipulation of the
parties and the failure of any party to challenge the
ballots of Laverne Graham, Ron Nowacki, Phillip M.
Lappin, Peter E. Daley, and Dean G. Coddens clearly
constitute a concession that those drivers are "em-
ployees" within the meaning of the Act in order for the
1 211 NLRB 251 (1974)
215 NLRB No. 147
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board 's jurisdiction to be asserted lawfully . Thus, we
find that the Hearing Officer 's permitting , in effect, of
postelection challenges in this case was error, and we
hereby reverse his findings with respect to the unchal-
lenged voters.
Moreover , for the reasons discussed infra, we find
that the record does not establish that any of the 12
voters , including those unchallenged as well as chal-
lenged , are independent contractors.
The Petitioner challenged the ballots of Jesse R.
Harry , Richard Hoffman, Bill Stuart , James Freise,
Mel Brooks , Robert Brooks, and James Chessor for the
reason that they are not employees or are not regularly
employed . At the hearing , the Petitioner took the posi-
tion that the challenged voters are independent con-
tractors or, alternatively , that they are not regularly
employed by the Employer.
The Employer is engaged in the assembly , manufac-
ture , and sale of parcel delivery vans . At its plant in
Chicago , the Employer receives truck chassis on con-
signment from automobile manufacturers , and installs
sheet metal bodies on them . In cases where the cus-
tomer is located outside the Chicago area , the Em-
ployer will deliver the van to the customer. Trips are
assigned either by the Employer telephoning a driver
and informing him that a trip is available , or by a driver
calling the Employer and inquiring if any trips are
available . In either case, a driver may decline a particu-
lar trip.
When a driver agrees to deliver a truck he signs a bill
of lading and performs any preparations necessary for
the trip .2 The driver then drives the truck to the loca-
tion and obtains the customer 's signature on the bill of
lading . The driver is generally free to determine his
own route , his hours , where he will purchase gasoline,
and where he will find meals and lodging.'
Each driver is paid a flat rate for delivering a truck.
The rate for each destination is established by the Em-
ployer , and all drivers are paid the same rate for deliv-
ering trucks to the same destination.' The drivers pay
gasoline, ' food, lodging , traffic tickets , and other per-
sonal expenses . The Employer reimburses the drivers
for oil , any State permits, tolls,' and any maintenance
or repairs to the vans while en route which are not
covered by the manufacturer 's warranty . The Em-
ployer carries ' insurance covering the trucks and driv-
ers. The drivers are also paid one-half of the plane fare
to return to their homes, although they are not required
2 Often, the driver takes two trucks in tandem The Employer supplies the
tow bar in this situation
3 The Employer does , on occasion , suggest certain routes , based on
weather conditions and the availability of gasoline
4 The parties stipulated , however, that Bill Stuart , on occasion , has re-
quested more money for a trip and has received it
S In the months preceding the hearing, the Employer reimbursed the
drivers for excessive gasoline prices caused by the shortage
6 One driver, Jesse Harry, testified that he was not reimbursed for tolls
to return by airplane. The drivers receive no fringe
benefits, and the Employer does not withhold taxes or
social security.'
There is no established procedure concerning the
hiring of drivers. Several drivers were required to take
physical examinations and driving tests whereas other
drivers were not. The Employer may terminate a driver
simply by refusing to allow the driver to deliver a truck.
Although the parties stipulated that there is no regula-
tion regarding other employment by a driver , i.e., a
driver could deliver other trucks for other employers at
the same time he is delivering trucks for the Company,
there is no indication in the record of such a practice.
The Hearing Officer concluded that the challenged
voters are independent contractors excluded from the
Act's coverage by Section 2(3). The Hearing Officer set
forth his reliance on certain factors in the following
manner : "They are not held to any particular time
schedule in making delivery; they have complete free-
dom to determine their routes, their hours of work;
they are entirely free to decline any particular trip for
any reason and have done so; they are paid at a prede-
termined rate without deductions, and are left then to
account for their own taxes; they receive no fringe
benefits; they are subject to no direct supervision; they
can, if they desire, deliver trucks for other employers
simultaneously with their employment by Penn and
can arrange return trips for other employers without
objection from Penn and without loss of their plane fare
reimbursement; they can and have in some instances
engaged others to assist them in delivering trucks, evi-
denced particularly by the manner in which the Brooks
brothers, as well as Chessor, were first introduced to
the Company." The Hearing Officer found that these
and other conditions of their relationship with the em-
ployer bring the drivers into close comparison with
owner-operators and lease-operators found by the
Board in recent cases to be independent
contractors! We disagree.
In our opinion, the record makes it clear that the
relationship of the drivers to the Employer is that of an
employee rather than that of an independent contrac-
tor. While the evidence discloses several factors usually
considered to indicate an independent contractor
status, the presence of such factors does not alone es-
tablish such status. Indeed, the factors relied on by the
7 During the period between August and December 1973, the Employer
did issue several payroll checks from which it withheld taxes and social
security The Hearing Officer concluded that such checks were occasioned
by the Employer's efforts to circumvent possible legal entanglements in the
State of Florida and were not intended to, nor did they, effect any change
in the Employer /driver relationship at issue herein . In view of the nature
of these checks , we attach little significance to the method of payment to
the drivers , and whether or not taxes were withheld from the paychecks.
8 Conley Motor Express, Inc, 197 NLRB 624 (1972), George Transfer &
Rigging Co., Inc., 208 NLRB 494 (1974), Gold Medal Baking Co., Inc, 199
NLRB 895 (1972), and Greater Houston Transportation Company, et at,
208 NLRB 1019 (1974)
PENN VERSATILE VAN DIV. OF PENN TRUCK 845
Hearing Officer are outweighed by others which amply
demonstrate that the Employer retains the right to con-
trol the manner and means by which the drivers accom-
plish their assigned tasks. One of the basic factors in
determining that an individual is an independent con-
tractor is his opportunity to make business decisions
affecting his profit or loss.' Here the driver is without
such opportunity. The possibility of selecting one route
rather than another is not a factor involving sufficient
latitude of discretion and judgment so as to affect the
driver's profit or loss, for economic realities dictate that
the customer demands that the truck be delivered as
quickly as possible, and that the driver, who is paid a
flat rate, complete the job in the minimum time.
The driver has no proprietary interest in the vehicle
he drives. As stated earlier, the Employer receives
trucks chassis on consignment from automobile manu-
facturers and installs bodies on them. The driver makes
no investment of any kind in the vehicle but simply
transports it from the Employer's plant to the cus-
tomer. There is no indication that any driver has uti-
lized a truck for any purpose other than delivering it to
the customer. Further, the compensation received is
almost solely at the discretion of the Employer and is
not the result of negotiations between independent con-
tracting parties. In sum, the driver does no more than
sell his services, as does any ordinary employee, with
the Employer assuming entirely the entrepreneurial
risks involved in the delivery of the trucks. 10
Added to the Employer's assumption of all entre-
preneurial risks in connection with the transporting of
the vehicles is the fact that the Employer may termi-
nate at will its relationship with the drivers, and may
simply cease assigning deliveries to a driver for any
reason whatsoever. Additionally, we do not regard the
failure directly to supervise the drivers in the perform-
ance of their duties to be a substantial factor where, as
here, the task performed is the routine driving of a
truck between two points."
Thus, we are satisfied that the Employer retains suf-
ficient control over the end result and the manner and
means by which it is accomplished. Accordingly, we
conclude that the drivers are employees of the Em-
ployer.
Having found that the challenged drivers are em-
ployees of the Employer, we turn now to the question
of whether they are "regularly employed" within! the
meaning of the stipulation. According to data submit-
ted by the Employer, during the period beginning July
1, 1973, until the election on February 11, 1974, a
32-week period, Bill Stuart drove 27 or 28 times. His
trips were between 1 day and 2 weeks' duration. Jesse
9 A Paladins, Inc., 168 NLRB 952 (1967)
10 Avis Rent A Car System, Inc, 173 NLRB 1366 (1968)
11 Id. at 1367
Harry drove 34 times during the same period. James
Freise began driving for the Employer on December 18,
1973, and during a period of less than 2 months drove
10 times. Richard Hoffman began driving for the Em-
ployer on October 12, 1973, and drove 11 times until
the date of the election. Many of his trips apparently
involved multiple deliveries. 'On the basis of the above,
we find that Bill Stuart, Jesse Harry, James Freise, and
Richard Hoffman are regularly employed by the Em-
ployer, and we therefore overrule the challenges to
their ballots.
The evidence with respect to the employment status
of Melvin Brooks, Robert Brooks, and James Chessor
reveals that they have a different relationship with the
Employer than do the other drivers. Melvin Brooks
operates a used-car lot, Mel's Auto Sales, with his
brother Robert. The car lot is generally open from 10
a.m. until 6 p.m., Monday through Saturday. They
both also play in different musical groups. Melvin
Brooks testified that on most occasions he notifies the
Employer that he has some extra time and asks if the
Employer has any trucks to be delivered. Brooks added
that, on rare occasions, the Employer will call him. The
Employer makes Brooks' checks out either to him or
to Mel's Auto Sales. Robert Brooks' testimony was
substantially the same as his brother's, but he added
that the used-car lot is closed often in the winter. It
appears that on several occasions, the Employer called
the Brooks brothers and they sent James Chessor to
deliver a truck. Chessor testified that he does construc-
tion work as a concrete finisher and is a vocalist for
different musical groups in Indiana. Robert Brooks
arranged for Chessor to begin driving for the Em-
ployer. Chessor testified that he did not speak to any-
one associated with the Employer, but just picked up
the truck to be delivered. The Employer pays Chessor
through Mel's Auto Sales, and the Brooks brothers
withhold Chessors taxes before paying him in cash.
Chessor testified that he received his instructions from
Robert Brooks. The Employer's records indicate that
the Brooks brothers and Chessor drove a total of 15
times from July 1, 1973, until the date of the election.
However, these records further establish that the three
persons involved did not perform any driving during
the period from July 1, 1973, to December 1973.12 In
view of the irregular nature of their driving assignments
for the Employer, and the fact that they drove much
less than the other drivers in the unit, we find that
Melvin Brooks, Robert Brooks, and James Chessor
lack a community of interest with the regularly em-
12 The inference to be drawn is that they generally drove only at times
when the used-car lot was closed during the winter months The Employer
does not keep separate records with respect to the three individuals, unlike
its records with respect to the other drivers
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed drivers. Accordingly, we sustain the challenges
to their ballots.
At the election the Petitioner received five votes and
no votes were cast against the Petitioner; and since we
have sustained three of the seven challenges herein, the
remaining four ballots cannot affect the results of the
election , and we shall allow them to remain uncounted.
Accordingly, we shall certify the Petitioner.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Local 710, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and that, pursuant to
Section 9(a) of the Act, the foregoing labor organiza-
tion is the exclusive representative of all the employees
in the following appropriate unit for the,purposes of
collective bargaining with respect to rates of pay,
wages, hours of employment , and other terms and con-
ditions of employment:
All regularly employed truck drivers employed
by the Employer at its facility in Chicago, Illinois,
but excluding office clerical employees, profes-
sional employees , production and maintenance
employees, guards, supervisors as defined in the
Act, and all employees represented by other labor
organization.
MEMBER KENNEDY , concurring:
I agree with my colleagues that the Hearing Officer
was clearly in error in permitting the Employer, over
the objections of the Petitioner, to litigate the status of
the five voters who had cast unchallenged ballots in the
election, and I join in reversing the findings with re-
spect to these unchallenged voetrs.13 I would also find
that Melvin and Robert Brooks and James Chessor
were ineligible voters and sustain the challenges to their
ballots. Inasmuch as the remaining four challenged bal-
lots are insufficient in number to affect the result, I join
in the issuance of a Certification of Representative to
the Petitioner.
13 NLR B v A J. Tower Company, 329 U S 324 (1946) 1 rind that the
Hearing Officer erroneously extended the scope of the hearing beyond the
seven challenged ballots on which the Regional Director had directed the
hearing I viewed the facts in this case to be distinguishable from those
involved in Eck Miller Transportation Corporation, supra, in which I dis-
sented The majority decision in the present case does not hold that the
Regional Director improperly directed a hearing on the seven challenged
ballots even though the issue of eligibility involved independent contractor
status