Reisch Trucking and Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1963

143 N.L.R.B. 953 (N.L.R.B. 1963)

REISCH TRUCKING AND TRANSPORTATION CO., INC. 953
Reisch Trucking and Transportation Co., Inc. ' and Freight
Drivers and Helpers Union No. 557, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America, Petitioner.' Case No. 5-RC-4137. July 30, 1963
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William M. Ashmore, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
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 labor organization involved claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of 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 Petitioner seeks a unit of over-the-road drivers composed of
two owner-operator tractor drivers, Harry Edwards and Herman
Burnick, and a driver named Leonard Willard, who is retained, by
Theodor Schell, owner of a third tractor, at the Employer's Baltimore,
Maryland, terminal, excluding office clerical employees, guards, watch-
men, and supervisors as defined in the Act. The Employer, engaged in
the interstate transportation of materials,' contends that the over-the-
road drivers are independent contractors and moves the Board to dis-
miss the petition.
The over-the-road drivers sought operate three tractors to haul
company-owned or company-controlled trailers from the Baltimore
terminal to the Company's Pennsauken, New Jersey, terminal and in
turn haul trailers back to Baltimore from there. These trips are made
at night. The trailers are sealed and the drivers do not engage in any
pickup or delivery of goods and have no contact with the Company's
Hereinafter referred to as Employer and/or Company.
2 Hereinafter referred to as Petitioner and/or Union.
3 The Employer is a motortruck common carrier with terminals in New York, New Jersey,
Pennsylvania , and Maryland The terminal in question is located at 913 North Point
Road , Baltimore At present there is in effect a contract , with the Petitioner herein, on a
multiemployer basis , which covers 15 drivers , at the Baltimore terminal , engaged strictly
in local cartage work in the Baltimore-Washington area. These city drivers are not the
object of the petition . The Employer conceded that they are employees within the mean-
ing of the Act.
143 NLRB No. 104.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customers. The tractor owners are responsible for any damage to the
company-owned or company-controlled trailers. The drivers receive
a trip slip and manifest for each trailer hauled and must maintain a
log on each trip.
Under Interstate Commerce Commission regulations, the tractors
are leased to the Employer for his exclusive use. The relation between
the Company and owners of the tractors is covered by a "Standard
Lease" which has been in use since 1956. The lease is for a period of
30 days and is automatically renewed fora like period of time unless
terminated on 30 days notice by either party.' Under the terms of the
lease the owner of the tractor undertakes to provide such vehicle as
the Company requires it, together with a competent driver, to perform
such carriage as is required. The owner is responsible for setting and
paying the wages of any driver, who it is understood is to remain an
employee of the owner and not the Company. The owner is responsible
for keeping the vehicle in good operating condition and agrees to
furnish all materials necessary for that purpose; the Company is re-
lieved of all liability to the owner for any damage caused to the tractor
while the tractor is operated, by the owner or his designated driver.
The Company pays for the public liability and property-damage in-
surance on the tractor, but this does not extend to "bob tailing" (travel-
ing without a trailer except when requested by the Company), but the
owners are responsible to the Company for causing deliberate or reck-
less damage to the trailers. All taxes of any nature whatsoever, and
all license and fines that may be assessed against the tractor while same
is being used by the Company, where such fines are caused through
improper equipment and/or operation of the tractor, are paid by the
Company. The Company is responsible for compliance with all
safety regulations of the Interstate Commerce Commission, and must
properly and correctly identify the vehicle under the requirements of
the Interstate Commerce Commission regulations.
Unlike the city drivers, the owner-drivers do not participate in any
safety program, nor are they subject to the company rules which apply
to the Company's other drivers; they are governed solely by the Inter-
state Commerce Commission Rules and Regulations.
The lease is further augmented by the practices and understandings
of the parties. These are as follows : The owner purchases and pays
for the entire cost of the tractor, and the Company in no way partici-
pates therein. The owner pays for the cost of license in Maryland but
the Company pays for the licenses in other jurisdictions. The owner
pays for collision, fire, and, theft insurance; the Company pays for
cargo insurance. The owner pays the driver, purchases gasoline and
oil, and pays for all maintenance and replacement of parts on its trac-
tor. Neither the company shop nor its mechanics make repairs or
There is evidence that a number of owners have terminated such leases.
REISCH TRUCKING AND TRANSPORTATION CO., INC. 955
replace parts on the tractors. However, the Company does conduct
periodic inspection of the tractors. The maintenance on the tractors
is performed where the owner desires. Generally, when not in use, the
owners park their vehicles at an independent garage.' The Company
in no manner curtails the owner's freedom to use the tractor as col-
lateral or security.
The compensation paid owners for the use of their vehicles and
services is a matter left to negotiations of the parties. At present
the tractor owner receives $50 plus tolls, per round trip between Balti-
more and the Pennsauken terminal. The Employer records the trip
and pays the owner once a week. However, it appears that in 1956,
the Company and owners agreed that the Company would pay $50 for
the Pennsauken run, but at that time the owners then were assuming
the tolls, and other incidental road expenses. These terms have been.
amended several times so that the Company now pays for all bridge
tolls and for the New Jersey Turnpike only when the Company
specifically asks the owner to use it. In addition, the Company now
pays $2 per hour whenever the equipment is held in Pennsauken for
longer than 2 hours." Occasionally, the tractor driver is requested to
make city deliveries or pickup of trailers which they do. For this
they receive $2 per drop and $5 a load pickup, and an additional 22¢
per mile off the regular route. However, the owner-drivers are free
to refuse these jobs as they are free to refuse the Pennsauken runs,
and on several occasions have rejected such runs without reprisal
or threat thereof. Owner-drivers may request, and obtain, delays
in dispatch time; switch dispatch times with one another, and regularly
appoint substitutes for themselves.
It is the practice of the Company's central dispatch office in Penn-
sauken, New Jersey, to instruct the Baltimore terminal when and
which trailers are to move and to have the dispatcher at the Baltimore
terminal call the owner-drivers on an "equipment priority" basis ap-
proximately an hour before the trailer is scheduled to leave. If the
owner of the tractor is not to drive, the dispatcher on instructions from
the owner will call the driver designated by the owner. The Company
has no responsibility to, and does not, provide drivers for the owners.
The drivers normally take U.S. Routes 40 and 130 to Pennsauken
unless directed to take the New Jersey Turnpike. If they take the
Turnpike on their own, which they frequently do to save time, they pay
the tolls; however, if asked by the Company, then the Company pays.
All other tolls are paid by the Company. The trip between Baltimore
s At the urging of the Union 's president, one owner is permitted to park his vehicle on
the Company's lot.
9 For a period of time the tractors were used in the daytime and driven by the Em-
ployer's city drivers. This was discontinued at the insistence of the tractor owners be-
cause of the execessive maintenance and repair costs to the owners caused by the city
drivers. For that service the owners had received $14 per day and they paid for all the
fuel and maintenance.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Pennsauken is approximately 3 hours each way depending upon
traffic and road conditions. While the Company wishes the trip to be
made as quickly as possible, it has not taken any disciplinary action or
reprimanded the driver where there have been delays. The drivers are
free to stop when or where they wish for fuel and food. The Company
exercises no disciplinary authority over drivers and has no authority
to hire or fire any driver which a tractor owner may employ. If it finds
a particular driver's conduct objectionable, it may lodge a complaint
with the owner of the vehicle, but it is the owner who decides what
disciplinary action, if any, is to be taken.
All pay and conditions of employment of drivers is a matter of
agreement between the tractor owner and the driver he employs. The
Company does not withhold any State or Federal income tax, or social
security tax from the sums paid owners or their drivers, nor does it
cover them for workman's compensation. Owners and their drivers
receive no vacation or holiday pay from the Company and do not
participate in welfare plans or other company benefits enjoyed by its
employees.
As the Board has frequently held? the determination of whether
an individual is an independent contractor or an employee under
the amended Act 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 resolution of this question de-
pends on the facts of each case and no one factor is determinative.'
On the entire record in this case, we are of the opinion that the owner-
drivers of leased tractors are independent contractors, rather than
employees of the Company.
We note particularly the bona fide and absolute ownership of the
trucks by the owners. Such ownership of the facilities to be used
gives rise to an inference of control over the manner of performance
which is associated with the status of an independent contractor. Also
significant in demonstrating the entrepreneurial nature of the owners
is the fact that owners determine whether to drive the tractors them-
selves or to employ others to do so. Indeed, the Company does not
assign a driver to the tractor in the absence of the owner. Moreover,
the owners can control in part their profit or loss not only by deter-
mining whether or not to drive themselves, but also by such matters
as their diligence and efficiency in the repair and maintenance of
trucks, which are solely their responsibility and which can be per-
formed by persons of their own choosing.
' Hugh Major Truck Service, 124 NLRB 1387, 1389; Oklahoma Trailer Convoy, Inc.
99 NLRB 1019, 1022.
6 Ibid.
GRANADA MILLS, INC. 957
The control exercised by the Company over the work of owners and
drivers is for the purpose of complying with the rules and regulations
of the Interstate Commerce Commission and is not inconsistent with
the independent contractor relationship. That the owners retain
substantial independence in their operations is clearly revealed by
their virtual freedom in deciding when or whether they will take an
assignment, in selecting routes of travel, in fixing the time of delivery
and return, in determining whether they or others will drive their
vehicles, and by their freedom to select their own maintenance
facilities.
Moreover, the parties herein expressly indicated their intent that
the owners and drivers of leased tractors were not to be employees
of the Company. Thus, the Company does not withhold income or
social security taxes, or pay for workman's compensation for the
drivers of the leased tractors, or provide the employment benefits of
its own employees to the owners and their drivers, nor are its rules
and regulations given to or applied to the over-the-road drivers. If
bonds are required to be posted, the owners usually must furnish them
as they must furnish the license plates of their home State.
In view of the foregoing and the entire record as a whole we find
that the owner-drivers of the leased tractors are independent con-
tractors rather than employees and that the Donowner- drivers are
employees of the independent contractors and not the Company. Ac-
cordingly, as there are no employees of the Employer in the unit
requested, we shall grant the Employer's motion and dismiss the peti-
tion herein.
[The Board dismissed the petition].
Granada Mills , Inc. and International Ladies Garment Workers
Union , Local 600, AFL-CIO. Case No. 24-C.4-1712. July 31,
1963
DECISION AND ORDER
On May 16, 1963, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
143 NLRB No. 102.