Pilot Freight Carriers, Inc.

National Labor Relations Board - Board DecisionsJan 31, 1974

208 N.L.R.B. 853 (N.L.R.B. 1974)

INTL. ASSN OF IRON WORKERS , LOCAL 377 853 Pilot Freight Carriers , Inc., Employer-Petitioner and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 12-UC-21 and 12-UC-23 January 31, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MFMBERS FANNING AND JLNKINS Upon a petiticn duly filed under Section 9(b) of the National Labor Relations Act, as amended, on May 24, 1972, a hearing was held before Hearing Officer Robert G. Romano on June 13, 14. 16, 21, 22, and 23, 1972, for the purpose of taking testimony with respect to the issues raised by the petition. On July 12, 1972, the Regional Director for Region 12 issued an order transferring this case to the National Labor Relations Boare, and the Petitioner, the Union,' and certain Intervenors filed briefs with the Board. On August 11, 1972, the Board remanded the case to the Regional Director for further hearing, and some 54 days of hearings were held between September 1972 and February 1973.2 Thereafter, the Petitioner and the Union filed briefs with the Board,3 and the Chamber of Commerce of the United States has filed a motion for leave to file a brief as amicus curiae and said brief.4 On September 21, 1973, the National Labor Relations Boaid notified the parties that oral argument on the case would be heard by the Board on October 29, 1973. Subsequently, the Board extended the date of the oral argument to November 1, 1973, and both the Employer and the Union participated. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labof Relations Board has delegated its authority in this proceeding to a three-member panel.5 I The term "Union" refers to all union parties in this proceeding 2 On September 5, 1972, Pilot filed Case I1-LC-13, citing teamsters Locals 61 , 71, 391, 773. 515 and the Southern Conference of Teamsters as parties, and seeking to clarify the same national unit by excluding said Florida workers Case I1-UC-13 was transferred to Region 12, assigned Case 12-UC-23, and consolidated with Case 12-UC-21 for hearing. ' The Union has filed a motion to reopen the record so as to include certain evidence attached thereto bearing on the accretion question, and Pilot has filed a brief to be treated as a brief in opposition to the motion We hereby deny that motion The first group of documents attached to the motion would merely be cumulative to our finding, infra, that there is functional integration in Pilot 's unitary freight system As to the evidence regarding Regional Manager Billy Taylor, such evidence would at most affect Taylor's credibility Evidence of substantially similar import appears in the parties' stipulation of October 18, 1973, concerning the two Tampa clockwork contracts See fn 6 of this Decision. We note that Taylor's testimony on the accretion issue is corroborated on most matters by the testimony of others ; and where his testimony is not corroborated , as with respect to minimal interchange , there is no contention that significant interchange in fact exists The documents relating to the strike of the The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire recordtl in this case, the Board finds: 1. The Employer-Petitioner is engaged in com- merce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The Union involved herein is a labor organiza- tion within the meaning of the Act and claims to represent certain employees of the Employer. 3. The Petitioner herein seeks clarification of its national unit currently represented by the Union by the specific exclusion of any and all drivers, dockworkers, office clericals, plant clericals,7 or any other employees of Pilot in the State of Florida. The Petitioner contends that the drivers are independent contractors, that the dockworkers are employees employed by independent dock contractors, and alternatively that said drivers constitute a separate appropriate unit. The Union contends that the drivers are employees of Pilot, not independent contractors, and that Pilot's Florida operations constitute an accretion to the existing national collective-bargaining unit. In addition, the Union asserts that the petitions, filed during the term of the 1970-73 National Master Freight Agreement, are untimely,s and that the Board should defer to the August 18, 1972, award of the National Grievance Committee finding such an accretion. Pilot Freight Carriers, Inc., is a common carrier engaged in the transport of freight by motor vehicle operating under authority granted by the Interstate Commerce Commission. It is a North Carolina corporation with principal offices located in Win- ston-Salem, North Carolina, and its primary freight distribution point, or "breakpoint," in Kernersville, North Carolina. As of the spring of 1970, Pilot's Jacksonville dockworkers , in our judgment , are of insufficient relevance to any issue in the unit clarification proceeding before us to require their inclusion in the record 4 We hereby grant the motion and have considered said brief 5 Although Members Kennedy and Penello joined in hearing oral argument in this case , they have subsequently decided not to participate further in the decision herein, and instead prefer that the case be decided by a panel of the three members who are signatory to this Decision and Order s On October 23, 1973. all parties to this proceeding filed a joint motion that the Board approve a stipulation introducing certain documentary evidence into the record This joint motion is hereby granted r The parties, during the initial hearing on the petition , reserved their positions as to the office and plant clericals and requested that the Board make no determination on this issue " We reject the Union's contention that these petitions should not be entertained because they were filed during the term of the National Master Agreement The Board has long held that a UC petition is a proper vehicle for a determination of whether an accretion has occurred , and the circumstances herein do not make such petitions inappropriate See, for example. Bowman Building Products Division. 170 NLRB 312 208 NLRB No. 138 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authority extended from New England to northern Georgia, as far west as Ohio, and its operations included some 34 terminals administratively divided into 5 geographic regions. Because Pilot did not have the authority to operate in the State of Florida, it was required to interline at Atlanta or Savannah, Geor- gia, with various other motor carriers. In 1965, Pilot applied to the ICC for a Certificate of Public Convenience and Necessity to operate in Florida. During the ICC hearings on its application, Pilot emphasized the advantages of a unitary, single- line operation, including direct shipping, expanded less-than-truckload service, and increased efficiency. In July 1970, the ICC affirmed, with few changes, the recommendation of its trial examiner that such authority be granted and, in August and September 1970, Pilot established terminals at Jacksonville, Orlando, Tampa. and Miami. To administer the new Florida region, B. Taylor was promoted from his position as terminal manager at Greenville, South Carolina, to Florida regional manager with headquarters in Jacksonville. Each terminal has its own manager who is vested with significant authority over day-to-day operations. Although the Jacksonville facility was initially staffed with employee-drivers, the other terminals commenced operations with owner-operators. Inas- much as Pilot does not have any intrastate authority in Florida, there is no lateral movement of freight, and it was thought that owner-operators who could solicit north-bound freight would help to minimize the amount of deadhead mileage. In February 1971, Pilot converted its Jacksonville terminal to an owner- operator basis and about 16 of the then-employed 22 drivers purchased their own tractors, many with Pilot's financial assistance. At present, all owner- operators, whether "road" drivers who generally transport freight between terminals or "local" drivers who handle the bulk of pickups and deliveries, own their equipment, and Pilot no longer maintains any security interest in these tractors. Pilot, like all motor carriers, is governed by the Motor Carrier Safety Regulations published by the Department of Transportation. As part of these regulations, and others, like its consent agreement with the Federal Highway Administration executed June 20, 1972, Pilot undertakes to maintain a qualification file on all drivers; Pilot's lease with drivers must have a duration of at least 30 days; each driver must maintain a driver's log and have his truck identified as that of Pilot; each may only drive, according to DOT regulations, 10 hours per day; each driver must examine his vehicle before each trip; Pilot may not permit any driver to operate a motor vehicle who has not been physically examined within the past 2 years and certificates of such examinations must be on file; and Pilot's vice president of safety and security shall be responsible for the compliance with all motor safety regulations. Pilot has executed two series of leases with its drivers, one at the time of their initial employment (or at the time of the conversion in Jacksonville), and another during the summer of 1972 (during the pendency of the UC petition). The original lease provided that the contractor agrees: to "use his truck or tractor only in service for The Company while this Agreement is in effect"; to "paint vehicle and attach Company signs as required"; "to drive his own vehicle and perform his own pickup and delivery service at all times"; to turn cash over to Pilot daily; to extend credit to "only those accounts which have been approved in writing for credit by The Compa- ny"; "to load the freight from the dock (tail gate) on to his delivery equipment and unload freight picked up to the docks of The Company"; "to pay all expenses of fuel, oil, tires, repairs, taxes, drivers and every expense of any nature whatsoever pertaining to the operation of the truck unit"; and to follow the Company's accident program. The agreement stated that it would remain in force until canceled by either party upon notice, but also, that, upon breach of the contract, the Company could cancel it immediately. In June 1972, during the pendency of the instant case, all drivers were informed that there was a new lease which they had to sign , but certain drivers testified that there was no change in duties with the new agreement. In fact, Regional Manager Taylor admitted that the change was really one of verbiage rather than a change in Pilot's operations. In any case, the new lease has a term of 1 year, with automatic renewal from year to year for 1-year periods; contractors are responsible for all operating and maintenance expenses and shall , at their ex- pense, employ all necessary drivers and laborers; the lease states that Pilot shall have control as to the results and use of the equipment and shall assume responsibility only to the extent required by ICC and DOT: and the parties state that they intend to create an independent contractor relationship, not an employer-employee relationship. The record discloses that contractors are responsi- ble for their expenses, including fuel, maintenance and repairs, taxes, fines, and other items. Pilot does, however, sell drivers oil and filters which are shipped from North Carolina and paid for by checks of the drivers or deductions from their paychecks. In the past Pilot paid for tolls, but recently abandoned that practice in favor of raising the compensation of all contractors to cover these costs. Road drivers are paid on the basis of trip-mileage and cents-per- hundred-pounds transported, while local drivers are compensated on a percentage -of-revenue basis. PILOT FREIGHT CARRIERS There is no set time for contractors to report for work, and dispatching is on a first-come, first-served basis. There is conflicting evidence as to whether drivers may freely refuse loads. Some drivers testified that they are Free to refuse loads at will, but the former Miami operations manager, Queen, testified that he would. in effect, punish those who refused loads by giving them less desirable loads for a period of time so they would "see the light." He further testified that if he could not talk a driver into taking a load, he would speak with the Miami terminal manager who would "tell the driver in no uncertain terms." As to route selection, while the contractors techni- cally may select whatever routes they wish, there is evidence to suggest that this selection may not entirely be a free one. Thus, Pilot has designated certain tire banks which will provide tires on the road and there is testimony that, as a result, the location of these tire banks affects the routes some drivers use. Pilot's "instructions" to drivers, as listed on various trip documents such as trip cards, waybills, and manifests , were subject to much litigation by the parties. The trip card bears the heading Pilot Freight Carriers, Inc., includes at the left margin a column for a timeclock recordation of the time the driver is dispatched and the time he arrives at the terminal, and provides for the driver's signature for each dispatch. Particularized dispatch instructions are either typewritten or handwritten under the heading "First Dispatch Instruction," "Second Dispatch Instruction," or "Third Dispatch Instruction." The parties spent hundreds of pages reading dispatch instructions into the record, and the record shows that the practice of preceding each dispatch instruc- tion with the phrase "customer requests" began after the present case was in litigation. The following are examples of these instructions: Proceed to Hollywood terminal for inst. Customer requests you proceed to Jacksonville terminal for inst. Customer requests load to arrive Hollywood terminal by 11:30 6/24/72 to effect delivery on this freight. Proceed to Jacksonville terminal maintain 55-60 degrees temperature . Proceed to Hollywood term for inst . bob tail to Across the Border South and proceed as a hove. Customer requests you bobtail to Comm. Ware- house at Auburndale , pick up trailer 13731, and go to Coca Cola Co. at Auburndale , Fla. Pick up 855 load for Hickory, N.C. on Order No. 694-43848 lbs, then to Jax [Jacksonville] when loaded. Proceed to Jax. Call Jax 2 hours out. Customer requests you deadhead to Daytona Beach and call Jacksonville control for inst. In its brief, the Union rhetorically asks why a customer would request that a Pilot driver "dead- head to Daytona Beach and call Jacksonville for instructions." However, various drivers testified that they do not necessarily follow these instructions. The waybills introduced at the hearing also contain similar "instructions," but were of two types, inbound (shipment originated outside Florida) and outbound. The following are examples of these instructions: Deliver Monday 6/19/72 sure Please contact the company for firm delivery before attempting delivery Rush Rush Rush Rush Rush Rush Avoid prolonged exposure to severe temperatures Do not lie flat=fragile material Finally, the road manifests , which are used throughout the Pilot system as well, and which accompany the freight, also contain "instructions" for the drivers. Numerous such instructions were read into the record, and the following are typical: Customer Lindy Tec 3109, Requires You to Arrive as Quickly as Possible for S.C. Call Jax if delayed in Route, and Also 2 hrs. Before Arrival. Call Jax from Daytona for Instructions. P/U [Pickup] load at Coca Cola Auburndale then to Jax for Billing. Check carefully-Handle Properly [printed on many manifests] As to instructions to contact the terminal, there was testimony that the Orlando terminal manager told drivers to call in at least twice a day, to call if they would be late with a shipment, and to call if the driver had an empty trailer. One contractor testified that the manager "jumped on him" when he failed to do so. Former Miami Operations Manager Queen also testified that he had instructed the drivers to call in frequently and told road drivers to call their destination if they would be more than 2 hours late (on the Jacksonville to Miami run). Queen also stated that when a Miami driver arrived at dock in 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miami he had 8 hours off: if Pilot had a set load for him he was told to report back at a certain time, but if no specific load was established, he was instructed to call in 11 hours. Another driver testified to similar instructions at the Tampa terminal. In contrast, certain drivers denied that they were ever instructed to call the terminal but did call in order to learn whether their customers had contacted the terminal with pickup orders. With respect to the drivers' use of company equipment, the Union asserts in its brief that the frequent use of such equipment "presents a classic and all too typical exposure of the deceit implicit in Pilot's bald disclaimers and generalizations.. . ." The record shows that there have been instances where an operator has used a Pilot-owned tractor when his own vehicle was inoperative. Taylor stated that, while there are no real rules governing such a procedure, generally drivers are not charged for the first day of use and are (but may not be) charged for each day thereafter, local drivers at a rate of $20-$25 a day, road drivers at 5 cents a mile, with drivers paying for the fuels Notwithstanding Taylor's assertion that drivers only used company equipment in unusual and emergency situations, the Union elicited much testimony to show that such usage was not infrequent. Thus, drivers have driven Pilot tractors not merely when their vehicle was being repaired, but also when their load was too heavy for their own tractor. Furthermore, such usage has been from just a day to as long as several weeks at a time. Some drivers testified that they receive "Pilot Wheel," the Company magazine, either at home or at the terminal. 10 In the hiring process, the record discloses that the terminal manager interviews owner-operators, who must first complete a battery of forms and then take a polygraph test. The results of this test, together with the forms, are sent to Kernersville; in return, the terminal manager receives a color-coded card, showing the results of the polygraph test: green, yellow, or red. "Greens" and "yellows" may be hired, but a "red card" means that a contract should not be executed with this individual, and, if he has been hired on a casual basis, he should be terminated. The record discloses only one incident when a red card was actually hired, and this took place after much consultation with Pilot officials in Kernersville. 9 There was evidence that one driver used a Pilot tractor for 6 weeks during the summer of 1972 and, by the time the hearing closed in February 1973, had not reimbursed the Company 10 There was testimony that the Pilot birthday list, which is published monthly at Winston-Salem, is posted at the Miami terminal and that it contained the names of Miami operators and supervisors as well as all employees throughout the Company 11 All dock contractors have signed an agreement which follows the language of the lease agreements discussed supra The dock contractor is to furnish all equipment : shall pay all operating and maintenance expenses, Pilot does conduct monthly meetings with the drivers. Contractors are notified of such meetings by a notice posted on a bulletin board or by signing an acknowledgment at the time the driver receives his paycheck that he read the notice. Although Taylor testified that attendance was not taken, there is evidence in the record that a list was signed by the drivers present. Furthermore, while various drivers testified they were not reprimanded for missing meetings, former Miami Operations Manager Queen stated that he would speak with drivers who were absent. With respect to the dockworkers in Jacksonville, Pilot signed a contract i i for dock services with Contract Freight Handling Services, owned by Franklin Floyd, in June 1972. Floyd was formerly a utility man for Pilot who performed various tasks including the supervision of the movement of freight. Floyd testified that he negotiated a rate with Pilot and obtains his employees from several sources. He also performs similar work for another company. Floyd has granted increases to his dockworkers which correspond to increases he received from Pilot, but he deducts social security and all withholding taxes. He testified that he interviews applicants, terminates employees, and has his own supervisors. In this regard, he maintained that Pilot personnel have not supervised the dock force since July 1972. In Orlando dock services were initially performed by Republic Carloading. Thereafter, the Orlando terminal and operations managers approached Be- thel Drew of Republic and Drew, in early 1971, together with the wife of the Orlando operations manager, formed a partnership agreement to perform dock services. However, the operations manager continued to interview applicants and approved raises for these employees. Drew testified that, at the time of the strike in July 1972, he was contacted by Pilot to bring his help across the picket line, but Drew informed the company that his employees refused. Subsequently, he received a telegram about "unmet platform needs" and Pilot's plans to replace him; after 'the picketing ended, the terminal manager told Drew a sale to Charles Hack, then a driver for Pilot at Orlando, would be the "best way to go." Presently, dockwork is handled by Hack's Freight Handling Services. There was little evidence presented with respect to -hall employ all necessary supervisors , driver,;, dockworkers, and laborers to perform all dock services for the Company; and shall pay the wages and taxes for its supervisory personnel and employees Pilot has such control as to results and use of the dock contractor's equipment only to the extent required by Federal law, and the parties , as in the lease agreement, specifically state that they intend to create an independent contractor relationship and that "neither the dock contractor nor its employees are to be considered the employees of Pilot at any time under any circumstances, or for any purposes " PILOT FREIGHT CARRIERS 857 the Tampa dock contractor, but the record does show that such services are being performed by Tampa Bay Cartage Co. The most detailed evidence proffered at the hearing about dockwork relates to the Miami operation. Originally, Pilot used employees mostly from Employer's Overload ("E.O.") for its dockwork but also hired some from other employment agencies and from a local Bible college. The agency employ- ees were paid by their respective agencies while Pilot paid the students an hourly rate. The terminal operations manager and his supervisors would screen the men and, if they were found satisfactory, would use the same men on a steady basis: however, if a man was unsatisfactory, the operations manager would inform an owner of E.O. and the man would then be replaced. Since the terminal and operations managers were dissatisfied with many of the E.O. workers, they ran advertisements for such personnel using Pilot's address but not stating the name of the company. Applicants who responded to these ads were interviewed by the operations manager who would notify E.O. that he wanted to try those men. The operations manager set the wages of these men and notified E.U. of the rate and when the man was to be promoted. Pilot provided supervision over the dock force through several dock foremen or dis- patchers. In April 1972, there were about 20-35 men reporting directly to the terminal. The Miami terminal manager testified that he had left his previous employer with an intention to eventually assume the Miami platform operations. When he and Regional Manager Taylor could not agree on a price, Taylor signed a contract, in July 1972, with B & B Cartage Company. The owners of B & B are Don Bailey, a contractor with Pilot, and his brother Lawrence, who drives part-time for B & B and part-time for another company. At a June 1972 meeting for all dockworkers, the Miami terminal manager told them that E.O. was no longer in charge and that B & B was taking over. The record shows that the same employees continued working after B&B assumed responsibility for dock services and one former E.O. worker testified that he was not required to fill out a new application or sign a new W-2 form. With respect to supervision, it seems that a former Pilot coordinator and supervisor of dock employees went with B & B as its supervisor, another Pilot supervisor became B & B's general manager, and other Pilot supervisors who directed the dock force prior to the takeover continued to do so for at least a 12 Contrary to the contention of the Union, the award of the National Grievance Committee that Pilot's Florida operation constitutes an accretion does not govern or guide the Board in its disposition of the issue presented here As we said m Cor'tbusuon EnRtneerine, Inc, 195 N LRB 909, despite the award "it is nevertheless the obligation of the Board to deterrmne whether the employees . . constituted an accretion to the existing unit" time thereafter. One worker testified that he contin- ued to receive instructions from the terminal manag- er after the takeover and, at least through October 1972, the employees apparently still received checks from E.O., not from B & B. Terminal Manager Burgess confirmed that Pilot personnel did supervise the dock force for a break-in period, but stated that except for Thanksgiving 1972 when no one showed up Pilot does not direct the dockwork. Burgess admitted, however, that he would help with the dockwork if there was a rush load and no one else was available. In order to reach the question of whether Pilot's Florida employees constitute an accretion to the existing national unit,12 we must first address ourselves to the contention of the Petitioner that such dnvers are independent contractors. In determining whether an individual is an employee or an inde- pendent contractor, the Board has consistently applied the common law right-of-control test. Under this test, an employer-employee relationship exists when the employer reserves the right to control both the ends to be achieved and the means to be used in achieving such ends, while an independent contrac- tor relationship exists where control is reserved only as to the results sought. The resolution of this issue turns, as do most of these cases, on an evaluation of all of the facts with no one factor being determina- tive. In this case, we are of the opinion that the owner- operators are employees of Pilot rather than inde- pendent contractors. We are convinced by the following factors present in this case that the control exercised by Pilot relates to the manner and means by which the owner-operators perform work for the company: (1) The overall effect of the degree of control over equipment and personnel required by state and Federal regulation of motor carriers: (2) the fact that Pilot frequently loans its equipment to owner-operators in emergencies , sometimes without charge, and occasionally for long periods of time;13 (3) the extensive instructions to drivers on waybills, manifests , and trip cards which run to virtually every facet of the movement of freight, including the frequent request for the driver to call the terminal for what must obviously be detailed instructions; (4) the instances in the record wherein drivers were repri- manded for refusing loads; (5) the fact that the selection of routes by drivers may not entirely be a free one because of the designation by Pilot of certain tire banks for spares and the instances in the B This fact strongly suggests that the payments to dnvers are, in reality, for their services as employees rather than for a true lease of equipment. Like the other factors mentioned, it, standing alone, might not be adequate evidence on whether to find an employer-employee relationship . but it is, in some degree, at least , suggestive of such a relationship 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record showing that the selection of routes is affected by the location of these designated tire banks; (6) the fact that Pilot requires owner-operators to pass a polygraph test prior to employment; (7) the extensive amount of information required of the owner-opera- tors in the hiring process, as well as the exhaustive investigation of the background of each applicant undertaken by Pilot, including communications with the applicant's previous employers regarding such items as his ability to get along with fellow employees, the quality and quantity of his work, his attendance record, and a general evaluation, all of which are more indicative, in our opinion, of the establishment of an employer-employee relationship than a true independent contractor relationship; and (8) the evidence that attendance at monthly drivers' meetings appears to be less than wholly voluntary. As noted, the terms of the lease agreement signed by the owner-operators suggest that the controls exercised by Pilot relate solely to the results to be achieved under the lease . However, the terms of the lease are less significant, in our view, than the considerable factual evidence as to the actual control retained and duly exercised by Pilot over the transport and delivery duties of the drivers as described above. Upon the foregoing, balancing the factors present in the record of this case, we find that the owners of the lease equipment involved herein are employees of Pilot. We now must address ourselves to the basic issue presented by the petition, namely, whether the Florida operations constitute an accretion to the existing national unit.14 In determining whether a new facility or operation is an accretion to an existing unit, the Board has given weight to a variety of factors, such as the integration of operations, centralization of managerial and administrative control, geographic proximity, similarity of working conditions, skills, and functions, common control over labor relations, collective-bargaining history, and interchange of employees. While the functional integration present in such a unitary freight line as Pilot's may militate towards a finding of accretion, we believe that such integration is overwhelmingly counterbalanced by the following factors which show that the Florida operations as a whole, or as separate terminals, constitute separate appropriate units: (1) There is no interchange or transfer of employees 14 As noted , the issue with respect to the dockworkers is whether such workers are employees of Pilot In our opinion , the evidence shows that both Pilot and the dock contractors take part in determining matters governing essential terms and conditions of employment of the dockwork- ers. the record strongly suggests that Pilot's previous employment of dockworkers has not been completely terminated by the mere signing of the dock contract with the various dock companies , and, in fact . the record shows that the same employees have continued performing these services between the Florida region and other Pilot regions or terminals ; 15 (2) the Florida operation is substantially autonomous and has its own administrative person- nel which supervise operations , sales and labor relations ; (3) the pay rates, as established in the lease agreements , as well as the terms and conditions of employment of the Florida drivers, are substantially different from those of Pilot employees in the rest of its system ; and (4) there is geographical separation between the Florida operation and the rest of the Pilot system. On these facts , we find that each of the Florida terminals or the four terminals together , may constitute an appropriate unit , and that the extension of the 1970 contract would , as the Board said in Melbet Jewelry Co., Inc., 180 NLRB 107 , 109, 110: . . . do serious violence to the mandate that employees' rights are to be protected and that appropriate unit findings under Section 9(h) must be designed to preserve these rights. We will not . . . under the guise of accretion, compel a group of employees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those employees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them. We therefore conclude that the employees of Pilot at its four Florida terminals should be excluded from the national bargaining unit , and we shall, according- ly, grant the petition. ORDER It is hereby ordered that the collective-bargaining unit of all drivers, chauffeurs, driver-helpers, me- chanics, mechanics helpers, parts men, servicemen, local drivers, over-the-road drivers, checkers, switch- men, hustlers, forklift operators, riggers, dockmen. office clericals and plant clericals employed by employers covered by the National Master Freight Agreement hereby is clarified by excluding from said unit all drivers and dockworkers, employed by Pilot Freight Carriers Inc., in the State of Florida. and have been directed and supervised in the movement of freight by Pilot personnel Additionally, the record shows that at least some dockworkers received their paychecks from the personnel agency Pilot utilized to hire such workers after the contract was signed with the new dock contractor. In light of all the circumstances , we are of the opinion that Pilot is a joint employer of the dockworkers at the Florida terminals i' In our view , the few instances of temporary transfers to Florida when Pilot first opened its terminals do not establish a practice of interchange.