Carrier Corp. v. N.L.R.B.

• Decision Date: 30 July 1985
• Docket Number: 84-5883 and 84-5885,Nos. 84-5741,s. 84-5741
• Citation: 768 F.2d 778
• Parties: 119 L.R.R.M. (BNA) 3603, 103 Lab.Cas. P 11,581 CARRIER CORPORATION, Petitioner (84-5741), Pacemaker Driver Service, Inc., Respondent (84-5885), v. NATIONAL LABOR RELATIONS BOARD, Respondent (84-5883), Petitioner (84-5885).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 778

768 F.2d 778

119 L.R.R.M. (BNA) 3603, 103 Lab.Cas. P 11,581

CARRIER CORPORATION, Petitioner (84-5741), Pacemaker Driver Service, Inc., Respondent (84-5885), v. NATIONAL LABOR RELATIONS BOARD, Respondent (84-5883),

Petitioner (84-5885).

Nos. 84-5741, 84-5883 and 84-5885.

United States Court of Appeals, Sixth Circuit.

Argued May 2, 1985.

Decided July 30, 1985.

Robert H. Cowan, Gracey, Maddin, Cowan & Bird, Wade B. Cowan, argued, Nashville, Tenn., for Carrier Corp.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Fred Havard, argued, Washington, D.C.; Martin M. Arlook, Dir., Region 10, N.L.R.B., Atlanta, Ga., for N.L.R.B.

Wade B. Cowan, Robert H. Cowan, Gracey, Maddin, Cowan and Bird, Nashville, Tenn.; Carol Sue Nelson, Birmingham, Ala., argued, and Chris Mitchell, Constangy, Brooks & Smith, Birmingham, Ala., for Pacemaker Driver Service, Inc.

Before LIVELY, Chief Judge, MARTIN, Circuit Judge, and TIMBERS, ^* Senior Circuit Judge.

BOYCE F. MARTIN, JR., Circuit Judge.

Carrier Corporation seeks review of an order of the National Labor Relations Board which required it to reestablish its trucking domicile in Knoxville, Tennessee and to rehire and to make a backpayment to four employees. The Board cross-applies for enforcement of its order against Carrier and also seeks enforcement of its order against Pacemaker Driver Service, Inc. We deny Carrier Corporation's petition for review, and we grant the Board's cross-application for enforcement against Carrier. We also grant the Board's application for enforcement against Pacemaker, as modified.

I.

Carrier Corporation, a large business primarily engaged in the manufacture and sale of air conditioners, operates Carrier Trucking Service (CTS) as part of its corporate operations. CTS handles approximately ten percent of the total freight transportation needs of Carrier and its affiliated companies. CTS is headquartered in Knoxville, Tennessee and is managed by Samuel Henninger, who reports to Carrier through its director of logistics, Sanford Abraham.

Instead of having terminal operations, as are common in the trucking industry, CTS maintains domiciles of equipment and driver teams. In Knoxville, at the time the domicile was closed, CTS had two driving units and two driving teams of two drivers each. CTS leased both its equipment and its drivers. The drivers were leased from Pacemaker Driver Service, Inc.

At the time of the closing of the Knoxville domicile, the drivers were not unionized, although at least on one prior occasion they had brought the issue of union membership to a vote. In 1979, the NLRB conducted a union election involving Pacemaker's drivers in Knoxville, Nashville, and Memphis. A narrow majority voted against the union in that election.

The alleged labor violations in this case began on January 29, 1981. On that day, Jonah Gates, one of the drivers at the Knoxville domicile, called David Hagaman, Carrier's dispatcher in Knoxville, to inform him of his location. Hagaman told Gates that Henninger wanted to speak with him, and Henninger asked Gates what was wrong with Calvin Cooper, a driver domiciled in Nashville. Gates responded that Cooper was probably upset because he had to unload a trailer that he felt he should not have had to unload. Henninger then asked Gates if there was any union activity because Henninger had heard rumors that Cooper was interested in unionizing. Gates stated that he was not aware of any union activity, and Henninger said he would have to bring Cooper to Knoxville for a "fireside chat" with him.

A second incident occurred on February 5, 1981 when Gates called Hagaman to lodge a complaint about Hagaman's dispatching. Gates told Hagaman that if the situation did not improve the drivers "were just going to have to go union." Hagaman responded that if the drivers did unionize, Carrier would shut down the Knoxville facility, "that the drivers would lose their jobs and he [Hagaman] would lose his job."

The next incident occurred on February 26, 1981 when Hickman Ridley called Hagaman from Indiana to inform him of his whereabouts. Ridley told Hagaman that if the dispatchers "don't stop this harassment, ... it's going to end up in the Union vote again ...." In response to this statement, Hagaman said "if you go to a Union vote, ... they will close this place down, they'll fire you, and fire me, and they'll move the trucks out."

On March 13, 1981, Ridley spoke with Henninger about a traffic accident that had been reported to Henninger. At that time, Ridley informed Henninger that the drivers had been approached about "going union." Henninger said that if the drivers tried to go union, "Carrier will fire me, they'll fire you, and they'll move this place out of Knoxville."

On March 30, 1981, the drivers called Hagaman to receive their work assignments, and he informed them that their services were no longer needed because the trucks were being moved from Knoxville. The drivers later received letters stating that they were on permanent layoff status effective immediately.

On April 2, 1981, a union representative filed a charge on behalf of the drivers with the NLRB. A hearing on the charge was held before an administrative law judge in April 1982. The administrative law judge determined that Carrier and Pacemaker were joint employers and that David Hagaman was a supervisor for Carrier. He further found that Carrier had violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1) by threatening to close its facility if the drivers engaged in union activity and had violated section 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(3) by actually closing the domicile because of the drivers' union activity. As a remedy, the administrative law judge ordered the reestablishment of the Knoxville domicile and the reinstatement of the four drivers with backpay.

On April 13, 1984, a panel of the NLRB affirmed the decision of the administrative law judge and adopted the administrative law judge's recommended order with minor modifications. 269 N.L.R.B. No. 169, 116 L.R.R.M. (BNA) 1462 (Apr. 3, 1984).

II.

Here, Carrier challenges every finding made by the Board. Pacemaker joins Carrier in arguing that Carrier is not a joint employer of the drivers and also contends that it was an innocent party that cannot be held liable for backpay. We turn first to the contention that Carrier is not a joint employer of the drivers.

All agree that the proper legal standard to determine if a joint employer relationship exists is, "[W]here two or more employers exert significant control over the same employees--where from the evidence it can be shown that they share or co-determine those matters governing essential terms and conditions of employment--they constitute 'joint employers' within the meaning of the NLRA." NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d Cir.1982). Whether a company exercises such control as to be considered a joint employer is a factual issue to be determined by the Board. Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 898, 11 L.Ed.2d 849 (1964). Because the issue is essentially factual, we must affirm the Board's conclusion if it is supported by substantial evidence on the record considered as a whole. Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1179 (6th Cir.1985).

We conclude from the record there is substantial evidence to support the Board's conclusion that Carrier was a joint employer of the leased drivers. The following factors particularly support the Board's ruling. First, Carrier exercised substantial day-to-day control over the drivers' working conditions, while the drivers had only infrequent contact with Pacemaker. Second, there was evidence suggesting that Pacemaker officials consulted the Carrier officials over wages and fringe benefits for the drivers. See NLRB v. Browning-Ferris Industries of Pennsylvania, Inc., 691 F.2d at 1125. Finally, under Carrier's leasing agreement with Pacemaker, Carrier had the authority to reject any driver that did not meet its standards and it could also direct Pacemaker to remove any driver whose conduct was not in Carrier's best interests. ¹

Carrier next argues that even if it is considered an employer of the drivers, David Hagaman, Carrier's dispatcher, is not a supervisor and his actions cannot be attributed to Carrier. Section 2(11) of the National Labor Relations Act, 29 U.S.C. Sec. 152(11) defines "supervisor" as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. ²

Here, we feel the record supports the finding of fact that Hagaman was a supervisor. The Board's conclusion is supported by the evidence showing that Hagaman and the other dispatcher were the primary contacts between Carrier and the drivers. Hagaman was responsible for giving the drivers their schedules and for routing and re-routing drivers when necessary. Hence, it can be concluded that Hagaman was in the position to "responsibly direct" the drivers. That Hagaman exercised independent judgment in directing the employers is illustrated, for example, by Sanford Abraham's concession that the dispatcher sometimes departed from the customer priority listing given them by Carrier. ³

Carrier next argues that there was no substantial evidence to support the Board's finding that Hagaman and Henninger violated section 8(a)(1) by threatening the drivers with closure of the domicile if they unionized. The primary basis for Carrier's argument is its contention that the testimony of Jonah Gates, one of the...