60 F.3d 855 (D.C. Cir. 1995), 94-1115, C.C. Eastern, Inc. v. N.L.R.B.

Docket Nº94-1115.
Citation60 F.3d 855
Party NameC.C. EASTERN, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case DateAugust 01, 1995
CourtUnited States Courts of Appeals, United States Court of Appeals (District of Columbia)

Page 855

60 F.3d 855 (D.C. Cir. 1995)

C.C. EASTERN, INC., Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 94-1115.

United States Court of Appeals, District of Columbia Circuit

August 1, 1995

Argued March 21, 1995.

Page 856

[Copyrighted Material Omitted]

Page 857

Jeffrey L. Braff, Philadelphia, PA, argued the cause and filed the briefs, for petitioner.

Deborah E. Shrager, Atty., N.L.R.B., Chicago, IL, argued the cause for respondent. With her on the brief, were Linda R. Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel and Linda Dreeben, Supervisory Atty., N.L.R.B., Washington, DC.

Before SILBERMAN, BUCKLEY and GINSBURG, Circuit Judges.

GINSBURG, Circuit Judge:

C.C. Eastern, Inc., a cartage company, petitions for review of (1) an order of the National Labor Relations Board denying its claim that certain drivers are independent contractors and not employees covered by the National Labor Relations Act, and of (2) a subsequent Board order holding that the Company violated Secs. 8(a)(1) and (5) of the Act, 29 U.S.C. Secs. 158(a)(1), (5), when it refused to bargain with the union that the drivers elected as their bargaining representative. We agree with the Company that the drivers are independent contractors and therefore grant its petition, deny the Board's cross-application for enforcement, and vacate both orders.

I. BACKGROUND

Central Transport, Inc. carries freight between North Brunswick, New Jersey and distant cities. Its affiliate, C.C. Eastern, Inc., provides local pick-up and delivery service from its terminal in North Brunswick. Fourteen drivers perform the local pick-ups and deliveries.

In December 1991, Local 701 of the International Brotherhood of Teamsters filed a petition with the NLRB seeking to represent "[a]ll drivers employed by [Central Transport] at its North Brunswick New Jersey" terminal. The NLRB rejected that petition because Central was not the Employer at that location, and the Union subsequently filed a new representation petition identifying Eastern as the Employer. Eastern challenged the new petition upon the ground that the drivers are independent contractors and hence not covered by the Act, but the Regional Director of the NLRB rejected that claim and ordered that a representation election go forward. 309 N.L.R.B. 1071 (1992). The Board affirmed that decision, 309 N.L.R.B. 1070 (1992), and the drivers at the North Brunswick terminal elected the Union to represent them in collective bargaining. In order to preserve for judicial review its claim that the drivers are not "employees" within the coverage of the Act, the Company refused to bargain with the Union. The Board then ruled that the Company had thereby violated Secs. 8(a)(1) and (5) of the Act and ordered it to bargain, 313 N.L.R.B. 632, 1994 WL 43674 (1994), and the Company now petitions this court for review.

II. ANALYSIS

The Company's principal contention is that the 14 drivers are not employees but rather independent contractors. The Company also argues in the alternative that the Board improperly denied its request to present certain evidence bearing upon the proper characterization of the drivers' status. Because we agree with the Company that the drivers are not employees, we do not reach the evidentiary issue.

A. Relevant Principles of Law

The jurisdiction of the NLRB extends only to the relationship between an employer and its "employees"; it does not encompass the relationship between a company and its "independent contractors." North Am. Van Lines, Inc. v. NLRB, 869 F.2d 596,

Page 858

597 (D.C.Cir.1989) (hereinafter "NAVL"); see also 29 U.S.C. Sec. 152(3). Therefore, the characterization of a group of workers as "employees" or as "independent contractors" is dispositive of the question whether they may elect a bargaining representative through the processes of the NLRB.

Although the Board must decide in the first instance whether individuals claiming the protection of the NLRA are employees or independent contractors, the Act requires the Board to resolve that question by reference to the common law of agency. NLRB v. United Ins. Co. of Am., 390 U.S. 254, 256, 88 S.Ct. 988, 989-90, 19 L.Ed.2d 1083 (1968). The application of the law of agency to established and undisputed findings of fact "involve[s] no special administrative expertise that a court does not possess," id. at 260, 88 S.Ct. at 991-92; we therefore "need not accord the Board's decision that special credence which we normally show merely because it represents the agency's considered judgment." Local 777, Democratic Union Organizing Committee, Seafarers Int'l Union of North Am. v. NLRB, 603 F.2d 862, 872 (D.C.Cir.1979) (hereinafter "Seafarers "). Even that does not mean, however, that we review the Board's determination de novo: We will still uphold the Board if it can be said to have "made a choice between two fairly conflicting views." NAVL, 869 F.2d at 599.

Whether a worker is an independent contractor or an employee is a function of the amount of control that the company has over the way in which the worker performs his job. Seafarers, 603 F.2d at 872-74. As the Board itself has explained:

[A]n employer-employee relationship exists when the employer reserves not only the right to control the result achieved, but also the means to be used in attaining the result. On the other hand, when the employer has reserved only the right to control the ends to be achieved, an independent contractor relationship exists.

Twin City Freight, Inc., et al., 221 N.L.R.B. 1219, 1220, 1975 WL 6567 (1975). Although this "right-to-control" test requires an evaluation of all the circumstances surrounding the relationship between the company and the worker, "the extent of the actual supervision exercised by a putative employer over 'the means and manner' of the workers' performance is the most important element to be considered." Seafarers, 603 F.2d at 873 (emphasis in original). It is important, however, to distinguish such company supervision from company efforts merely "to monitor, evaluate, and improve the results or ends of the worker's performance." NAVL, 869 F.2d at 599. Supervision of the "means and manner" of the worker's performance renders him an employee, while steps taken to "monitor, evaluate, and improve the results" of his work, without supervision over the means by and manner in which he does his work, indicates that the worker is an independent contractor. See City Cab of Orlando, Inc. v. N.L.R.B., 628 F.2d 261, 264 (D.C.Cir.1980).

B. The Evidence

In this case, the Company's actual supervision over the means and manner of the drivers' performance was at most minimal. As reflected in the report of the Regional Director, the Company does...

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41 practice notes
  • 697 F.Supp.2d 1199 (S.D.Cal. 2010), 05CV2125 JLS (CAB), Ruiz v. Affinity Logistics Corp.
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Southern District of California)
    • March 22, 2010
    ...by customer demands and government regulations do not determine the employment relationship" ); see also C.C. Eastern v. N.L.R.B., 60 F.3d 855, 859 (D.C.Cir.1995) (" [W]here a company's control over an aspect of the workers' performance is motivated by a concern for customer servi......
  • 154 Cal.App.4th 1, B189031, Estrada v. Fedex Ground Package System, Inc.
    • United States
    • California California Court of Appeals
    • August 13, 2007
    ...did not have to wear uniforms or paint their trucks with any special marks. The drivers in C.C. Eastern, Inc. v. N.L.R.B. (D.C. Cir. 1995) 60 F.3d 855 were paid by the job, did not have to wear uniforms, and could choose any kind of truck. The drivers in Merchants Home Delivery Serv., Inc. ......
  • Participation as a theory of employment.
    • United States
    • Notre Dame Law Review Vol. 89 Nbr. 2, December - December 2013
    • December 1, 2013
    ...over the means by and manner in which he does his work, indicates that the worker is an independent contractor. C.C.E., Inc. v. NLRB, 60 F.3d 855, 858 (D.C. Cir. 1995) (citations omitted) (internal quotation marks omitted). (122) FedEx Home Delivery, 563 F.3d at 497 ("Gradually, howeve......
  • July 2000, pg. 160. Time to Rein in the NLRB.
    • United States
    • Maine Bar Journal Nbr. 2000, January 2000
    • January 1, 2000
    ...departing from precedent. Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 655 (D.C. Cir. 1992); see also C.C.Eastern, Inc. v. NLRB, 60 F.3d 855 (D.C. Cir. 1995), and Gibson Greetings v. NLRB, 53 F.3d 385 (D.C. Cir. 1995). In other words, even where the courts of appeal may d......
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38 cases
  • 154 Cal.App.4th 1, B189031, Estrada v. Fedex Ground Package System, Inc.
    • United States
    • California California Court of Appeals
    • August 13, 2007
    ...did not have to wear uniforms or paint their trucks with any special marks. The drivers in C.C. Eastern, Inc. v. N.L.R.B. (D.C. Cir. 1995) 60 F.3d 855 were paid by the job, did not have to wear uniforms, and could choose any kind of truck. The drivers in Merchants Home Delivery Serv., Inc. ......
  • 697 F.Supp.2d 1199 (S.D.Cal. 2010), 05CV2125 JLS (CAB), Ruiz v. Affinity Logistics Corp.
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Southern District of California)
    • March 22, 2010
    ...by customer demands and government regulations do not determine the employment relationship" ); see also C.C. Eastern v. N.L.R.B., 60 F.3d 855, 859 (D.C.Cir.1995) (" [W]here a company's control over an aspect of the workers' performance is motivated by a concern for customer servi......
  • Roadway Package System, Inc., 842 (1998)
    • United States
    • August 27, 1998
    ...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 6 American Federation of Labor and Congress of Industrial Organizations (AFL-CIO); Americ......
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3 books & journal articles
  • July 2000, pg. 160. Time to Rein in the NLRB.
    • United States
    • Maine Bar Journal Nbr. 2000, January 2000
    • January 1, 2000
    ...departing from precedent. Pittsburgh Press Co. v. NLRB, 977 F.2d 652, 655 (D.C. Cir. 1992); see also C.C.Eastern, Inc. v. NLRB, 60 F.3d 855 (D.C. Cir. 1995), and Gibson Greetings v. NLRB, 53 F.3d 385 (D.C. Cir. 1995). In other words, even where the courts of appeal may d......
  • Participation as a theory of employment.
    • United States
    • Notre Dame Law Review Vol. 89 Nbr. 2, December - December 2013
    • December 1, 2013
    ...over the means by and manner in which he does his work, indicates that the worker is an independent contractor. C.C.E., Inc. v. NLRB, 60 F.3d 855, 858 (D.C. Cir. 1995) (citations omitted) (internal quotation marks omitted). (122) FedEx Home Delivery, 563 F.3d at 497 ("Gradually, howeve......
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    • Missouri Law Review Vol. 83 Nbr. 4, September 2018
    • September 22, 2018
    ...answer is based on a permissible construction of the statute."). (79.) FedEx I, 563 F.3d at 496 (quoting C.C. E., Inc. v. NLRB, 60 F.3d 855, 858 (D.C. Cir. 1995)); see also United Ins. Co., 390 U.S. 260 (1968). Over time, the Court has established a set of standards for interpreting th......

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