Roadway Package System, Inc., 842 (1998)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARDRoadway Package System, Inc., a wholly owned subsidiary of Roadway Services, Inc. and Wholesale and Retail Food, Distribution, Teamsters Local 63, International Brotherhood of Teamsters, AFL-CIO, Petitioner. Cases 31-RC-7267 and 31-RC-7277 August 27, 1998 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN GOULD AND MEMBERS FOX, LIEBMAN, AND BRAME On March 9, 1995, the Regional Director for Region 31 issued a Decision and Direction of Election in Case 31-RC-7267 (pertinent portions of which are attached as an appendix) in which he found that the pickup and delivery drivers, "Temp A" drivers, and "contractor employees" at Roadway's Ontario, California terminal are employees within the meaning of Section 2(3) of the Act. Thereafter, in accordance with Section 102.67 of the Board's Rules and Regulations, the Employer (Roadway) filed a timely request for review of the decision, contending that the pickup and delivery drivers are independent contractors.1 On April 11, 1995, the Board granted the request for review. In Case 31-RC-7277, a petition seeking a unit of all the pickup and delivery drivers at Roadway's Pomona, California terminal was filed under Section 9(c) of the Act. Following the hearing held on various dates between March 28 and April 25, 1995, this case was transferred to the Board for decision on May 17, 1995, pursuant to Section 102.67(h) of the Board's Rules.2 Thereafter, the parties filed posthearing briefs. As the Ontario and Pomona cases raise common questions of law and fact concerning the status of Roadway's pickup and delivery drivers,3 the Board has decided to consolidate them for consideration and decision on re-view.4 On December 3, 1996, the Board held oral argument in these cases together with Dial-A-Mattress Operating Corp., 326 NLRB No. 75 (1998), also issued today. At the oral argument, the Board heard comments regarding the following: (1) the Board's authority to change or modify the common law right-of-control test to determine if an individual is an employee under Section 2(3) of the Act; (2) the relative importance of factors indicative of employee or independent contractor status; (3) the applicability of three specific cases,5 and (4) evidence of financial gains or losses by the drivers in the Roadway cases. The parties, as well as a number of amici curiae,6 participated in the oral argument and/or filed preargument and postargument briefs.7 5 Roadway Package System, 288 NLRB 196 (1988); NLRB v. Amber Delivery Service, 651 F.2d 57 (1st Cir. 1981), enfg. 250 NLRB 63 (1980); and C.C. Eastern v. NLRB, 60 F.3d 855 (D.C. Cir. 1995), enf. denied and vacating 313 NLRB 632 (1994). 6 American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); American Trucking Associations; Associated Builders and Contractors, Inc.; Chamber of Commerce of the United States of America; Council on Labor Law Equality; Messenger Courier Association of the Americas; and Newspaper Association of Americas. 7 On January 20, 1998, Roadway moved for reargument of these cases. The Petitioner and amicus AFL-CIO filed opposition statements to the motion, while amicus Chamber of Commerce filed a memorandum in support of the motion. The motion is denied as the record, briefs, and December 3 oral argument adequately present the issues and positions of the parties and amici. 8 Member Hurtgen recused himself and took no part in the consideration of these c Because the Pomona petition was transferred to the Board for decision, we have reviewed the hearing officer's rulings made at the Pomona hearing. We find that these rulings are free from prejudicial error and are affirmed. Based on the parties' stipulation, we find that Roadway is engaged in commerce within the meaning of the Act. We also find that it will effectuate the purposes of the Act to assert jurisdiction over Roadway. We further find, based on the parties' stipulation, that the Petitioner is a labor organization within the meaning of Sec. 2(5) of the Act and that it claims to represent certain employees of Roadway. As discussed more fully below, we find that a question affecting commerce exists concerning the representation of certain employees of Roadway at its Pomona terminal within the meaning of Sec. 9(c)(1) and Sec. 2(6) and (7) of the Act. In addition, we shall permit the two temp A drivers and drivers Jaime Calderon and Roberto Gonzales, who allegedly supervise non-unit employees, to vote under challenge in the Pomona election because there is insufficient evidence to determine their unit placement. The Petitioner would exclude all four individuals from the Pomona unit, whereas Roadway would include them. Yet, in the Ontario case, the parties took different positions regarding the unit placement of similar drivers. We further note that the parties' posthearing briefs in the Pomona case provide us with no clear explanation for these differences in positions. The parties agreed to exclude David Martinez and Juan Orozko, the drivers of Calderon's and Gonzales' vehicles, respectively, on community of interest grounds. We, therefore, exclude Martinez and Orozko from the Pomona unit. 1 Review of the Regional Director's findings of employee status for the Ontario Temp A drivers and contractor employees was not requested. 2 By stipulation of the parties, substantial portions of the record in the Ontario case were included in the Pomona case record. 3 At times, Roadway refers to the drivers at issue in these cases as "P&D contractors" or simply "contractors." To avoid any possible confusion with the term "independent contractors," we will refer to the pickup and delivery drivers as "drivers" in our decision unless otherwise noted. 4 In its postoral argument brief, Roadway renews its prior motion requesting that the Board consolidate additional pending cases involving the same parties and identical issues in Cases 21-RC-19485 and 5- RC-14313, or, in the alternative, take administrative notice of the records therein. The Board denied that prior motion on November 5, 1996. We find that Roadway has not raised any new or different arguments to warrant our reconsideration of the November 5 denial. After careful consideration of the entire record in each case, the oral argument, and the briefs of the parties and amici, we find that the Ontario and Pomona drivers are employees within Section 2(3) of the Act. We, thus, affirm the Regional Director's findings and direction of election in the Ontario case, and we direct an election in the petitioned-for unit in the Pomona case.8 ases. I. INTRODUCTION Roadway, a Delaware corporation, operates a nationwide pickup and delivery system for small packages throughout the United States. This system currently is comprised of approximately 317 terminals and hub facilities. The sole issue to be decided here is whether the drivers at Roadway's Ontario and Pomona terminals are employees under Section 2(3) of the Act or independent contractors not subject to the Board's jurisdiction.9 Almost a decade ago, the Board addressed a similar issue for the pickup and delivery drivers at Roadway's terminals located at Louisville, Kentucky, and Redford, Michigan. See Roadway Package System (Roadway I), 288 NLRB 196 (1988), and Roadway Package System (Roadway II), 292 NLRB 376 (1989), enfd. 902 F.2d 34 (6th Cir. 1990). The Board found employee status for the drivers in those cases. Specifically, in Roadway I, 288 NLRB at 198, the Board stated that the drivers "bear few of the risks and enjoy little of the opportunities for gain associated with an entrepreneurial enterprise" and Roadway had "substantial control over the manner and means" of performance by their drivers. In Roadway I, Roadway controlled, inter alia, the customer service areas and the number of packages and stops that were assigned to the Louisville drivers. The drivers had no proprietary interest in their customer service areas, and their compensation was controlled by Roadway. Roadway also maintained a "core zone supplement rate" to balance the Louisville drivers' income across various zones and thus minimize their risk and opportunity for gain. In addition, Roadway had a "flex" program to allow for the temporary transfer of packages or areas among the Louisville drivers to equalize their workload. The drivers received no commission for any customer sales leads, but they were eligible for a startup loan of $650 in gross income per week for the first 13 weeks of delivery for Roadway. Most of the Louisville drivers purchased or leased their vehicles from a source sponsored by Roadway. On the termination of their service to Roadway, the drivers were simultaneously released from their financial obligations to that source. Finally, Roadway had significant control over the daily work schedule of the Louisville drivers, and it required that drivers wear a uniform and use the Roadway color and logo on their vehicles. 9 For the first time in its postoral argument brief, Roadway untimely argues that all the drivers are supervisors within the meaning of Sec. 2(11) of the Act. Roadway's request for review in the Ontario case included no argument that the Ontario drivers are supervisors. In fact, Roadway's stated ground for review there was that the Ontario drivers are independent contractors. In its posthearing brief in the Pomona case, Roadway also failed to raise any supervisory claim regarding the Pomona drivers. The fact that the Regional Director excluded Ontario driver Albin as a supervisor and no party requested review of that finding does not cure Roadway's untimeliness in raising a supervisory claim regarding the Pomona drivers and the other Ontario drivers. At oral argument in the instant cases, counsel for Roadway argued that, commencing in 1994, Roadway made nationwide changes in its driver operations. He argued that those particular changes support a finding of independent contractor status for...
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