Pitney Bowes, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1993

312 N.L.R.B. 386 (N.L.R.B. 1993)

386
312 NLRB No. 64
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although Member Raudabaugh agrees with the result, he does
not agree that a ‘‘joint employer’’ analysis should focus only on
‘‘essential’’ terms and conditions of employment. See TLI, Inc., 271
NLRB 799 (1984). That analysis gives no weight at all to other
terms and conditions of employment. Member Raudabaugh would
consider all terms and conditions of employment, albeit he would at-
tach greater importance to the ‘‘essential’’ ones.
4 The parties dispute Wiersema’s supervisory status; Pitney Bowes
claiming that he is a supervisor and the Union contending he is a
rank-and-file employee. Because of my resolution of the joint em-
ployer issue, it is unnecessary to determine whether Wiersema is in
fact a supervisor within the meaning of Sec. 2(11) of the Act. Since
Wiersema’s title is supervisor, he will be referred to as a supervisor
in this decision.
Pitney Bowes, Inc./TLI, Incorporated and Truck
Drivers, Oil Drivers, Platform Workers and
Filling Station Attendants, Local 705, Inter-
national Brotherhood of Teamsters, AFL–CIO,
Petitioner. Case 13–RC–18635
September 24, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The National Labor Relations Board has considered
the Petitioner’s request for review of the Regional Di-
rector’s Decision and Order (pertinent portions of
which are attached). The request for review is denied
as it raises no substantial issues warranting review.1
APPENDIX
At issue in the instant petition is whether TLI and Pitney
Bowes are joint employers of a unit of truckdrivers. TLI has
voluntarily recognized the Petitioner as the collective-bar-
gaining representative of a unit of its employees who truck
various products from Pitney Bowes’s Alsip, Illinois ware-
house to various customers. Upon Pitney Bowes’s refusal to
also recognize the Petitioner as the collective-bargaining rep-
resentative, the Petitioner filed this petition, contending that
Pitney Bowes and TLI are joint employers. Pitney Bowes
and TLI both contend that they are not joint employers.
The Alsip warehouse maintained by Pitney Bowes is for-
mally known as its Chicago Distribution Center. From this
location, Pitney Bowes distributes its products, such as fac-
simile machines, copiers, and postage meters, to businesses
in Chicago and the Midwest. Since establishing the ware-
house in 1973, Pitney Bowes has subcontracted to several
different trucking companies the business of trucking its
products from the Alsip warehouse to various customers. Be-
fore 1986, Pitney Bowes subcontracted this work to a num-
ber of small carriers.
In 1986, Pitney Bowes entered into a contract with TLl,
Inc. TLl and Pitney Bowes do not have common manage-
ment, maintain separate offices, and do not have financial in-
terests in each other. Under their contract, TLI provides the
drivers that deliver and set up Pitney Bowes’ products, as
well as other personnel that Pitney Bowes may request from
time to time. TLI has similar contracts with more than 260
other businesses, including Jay’s Potato Chips. Pitney Bowes
leases the trucks for this work under its own name, and ob-
tains the necessary permits for the trucks.
The drivers deliver the machines, plug them in, show the
customers how to operate the machines, and remove any
traded-in products and return them to the warehouse. Pitney
Bowes provides training to the drivers so they can move the
machines and set them up without damaging them. On occa-
sion, drivers have worked in Pitney Bowes warehouse, and
are paid the same wage by TLI as when they are driving.
The warehouse tasks the drivers have performed include
writing down serial numbers and cleaning postage meters.
Drivers have not performed these warehouse tasks since Sep-
tember 1992. On several occasions, TLI Supervisor Jim
Wierseman4 performed tasks for Pitney Bowes, such as
hanging doors and relocating a timeclock because he pos-
sesses carpentry skills.
The drivers typically arrive at the warehouse between 7
and 7:30 a.m., and spend between 1-1/2 hours unloading the
returns from the previous day and then loading the day’s de-
liveries. Work is assigned to the drivers by TLI Supervisor
Jim Wiersema, who divides the work into geographical zones
and assigns the zones to the drivers. Wiersema works at the
Alsip facility. Before September 1992, Pitney Bowes order
analysts Pam Lagerstrom and Cheryl Hardesty performed the
task of dividing work into zones. Pitney Bowes does not es-
tablish routes for the drivers or determine which drivers will
deliver to each zone. Drivers decide for themselves when to
take lunchbreaks.
During the day, the drivers carry pagers that Pitney Bowes
can use to contact them. Pitney Bowes order analyst
Lagerstrom contacts the drivers directly if a stop is canceled
or there is a problem expected with a delivery. Drivers also
call the warehouse and speak to a Pitney Bowes employee
if they experience a problem with a delivery or are involved
in an accident. However, TLI, not Pitney Bowes, investigates
any accidents.
Drivers call in absences to Wiersema, because TLI’s main
office is not open when the drivers are scheduled to report
to Pitney Bowes. TLI provides substitute drivers to cover for
sick drivers, and for vacations. Pitney Bowes does not re-
quest specific substitute drivers by name, except for where
a particular driver has recently delivered for Pitney Bowes
and is familiar with its operation. TLI also, on occasion, tem-
porarily transfers drivers who normally work for Pitney
Bowes to other businesses, such as Jay’s Potato Chips or
Frito Lay, with whom it has contracts.
TLI maintains control over the hiring process. Drivers
apply for jobs to TLI and Pitney Bowes does not interview
or decide which employees to hire. TLI conducts drug tests
as required by law. Pitney Bowes keeps files on drivers that
are required by law. These files include certifications that the
drug tests have been administered, as well as logs of con-
secutive hours driven, as well as letters of commendation
prepared by Pitney Bowes officials.
Drivers are paid by TLI, not by Pitney Bowes. TLI Super-
visor Wiersema distributes checks to the drivers on payday.
A Pitney Bowes clerical tallies the hours worked by the driv-
ers and forwards that tally to TLI. TLI then produces pay-
checks for the drivers and bills Pitney Bowes for the number
of driver hours worked according to a fee schedule nego-
tiated between TLI and Pitney Bowes. Wages and benefits
387PITNEY BOWES, INC.
for the drivers are set by TLI and TLI does not inform
Pitney Bowes what wages are paid the drivers. TLI is re-
sponsible for the drivers’ worker’s compensation and disabil-
ity insurance.
TLI has its own work rules. Pitney Bowes does not have
input into TLI’s rules and does not distribute its own work
rules to the drivers. On occasion, Pitney Bowes supervisors
have verbally warned drivers that they were taking too long
to load their trucks or instructed them to cut their hair or not
to wear earrings to maintain a professional appearance. None
of these instances have been reduced to writing, and no fur-
ther action was taken against the employees.
TLI has also conducted its own investigations into com-
plaints about the drivers. Thus, when a motorist observed one
of the drivers, Percy Radcliffe, drinking in the Pitney Bowes
truck he was driving and called Pitney Bowes to complain,
TLI Regional Manager George Pugh and Supervisor
Wiersema investigated. Pugh decided to terminate Radcliffe.
Similarly, when Pitney Bowes received a number of cus-
tomer complaints about the performance of driver George
Sorenson, the matter was brought to the attention of TLI Re-
gional Manager George Pugh, who determined to transfer
Sorenson to another location. Finally, when a Pitney Bowes
employee complained that driver Ben Davis was harassing
her, Pitney Bowes asked TLI to transfer Davis. To accommo-
date TLI, Pitney Bowes agreed to allow Davis to work at its
Downer’s Grove warehouse.
Drivers have occasionally attended informal outings of
Pitney Bowes employees. These have included evenings at a
comedy club and an outing to a racetrack. Pitney Bowes
Warehouse Supervisor Dawn Kapustinec organized these out-
ings and invited the drivers to attend. Drivers are also al-
lowed to use Pitney Bowes’ lunchroom, as are visitors to the
warehouse. Pitney Bowes also nominates drivers for TLI’s
driver of the month award. Pitney Bowes formerly gave its
own driver of the month award, but that practice ended over
a year ago.
The Board will find that two separate entities are a joint
employer when they share or co-determine those matters
governing the essential terms and conditions of employment.
Rawson Contractors, 302 NLRB 782 fn. 6 (1991). To estab-
lish joint employment status, there must be a showing that
the employer meaningfully affects matters such as hiring, fir-
ing, discipline, supervision, or direction; routine or minimal
supervision of employees is insufficient to support a joint
employer claim. Laerco Transportation & Warehouse, 269
NLRB 324, 325–326 (1984).
In the instant case, I find that Pitney Bowes control over
the employment relationship to be insufficient to render it a
joint employer with TLI. Pitney Bowes exercises minimal in-
fluence over essential employment conditions. Thus, although
Pitney Bowes’ supervisors have verbally warned drivers,
those warnings are not documented in writing. And although
Pitney Bowes pages drivers during the day to relay instruc-
tions or alert the drivers to problems that may arise, such in-
structions are routine. The drivers themselves determine their
routes and when they will take lunchbreaks. TLI maintains
nearly complete control over all other significant aspects of
the employment relationship, such as hiring, wages, benefits,
work rules, assignment of tasks, transfers to other TLI cus-
tomers, and termination. The Board has previously consid-
ered TLI’s similar relationship with a different customer, and
found that that customer was not a joint employer with TLI.
TLI, Inc., 271 NLRB 798 (1984).
The cases cited by the Petitioner wherein the Board has
found joint employer relationships are distinguishable. Thus,
in Continental Winding Co., 305 NLRB 122 (1991), the em-
ployer subcontracted with a labor contractor to replace re-
signed employees. The employees supplied by the labor con-
tractor worked side-by-side with the employer’s other em-
ployees, performing the same tasks under the same super-
vision. Moreover, the employer retained the sole authority to
assign, schedule, and supervise employees. Id. at fn. 4. By
contrast, here the majority of the drivers’ time is spent doing
different tasks outside of Pitney Bowes’ warehouse, and
Pitney Bowes does not assign, schedule, or supervise the em-
ployees.
In Pacific Mutual Door Co., 278 NLRB 854 (1986), un-
like the instant case, the employer retained the right to pass
on the experience and qualifications of drivers and to dismiss
them at its sole discretion, controlled drivers in the operation
of the vehicles, assumed responsibility for the acts of drivers,
and specified the routes drivers were to use. Id. at 857–859.
Finally, in W. W. Grainger, Inc., 286 NLRB 94 (1987),
again unlike the instant case, the employer controlled drivers,
specified routes, determined vacations, instructed drivers
where to purchase fuel, formally evaluated drivers, referred
individuals for hire to the labor contractor, and exercised in-
direct control over compensation by disallowing some of the
drivers’ claimed work time. Id. at 95–96 (1987).
For the foregoing reasons, I find that Pitney Bowes and
TLI are not joint employers.
ORDER
It is hereby ordered that the petition filed herein be, and
it is, dismissed.