Petition to review and set aside a decision and order of the NLRB: (1) finding Clinton's Ditch Cooperative Co., Inc. to have been a joint employer when it subcontracted its trucking operation, thereby placing it in violation of 29 U.S.C. § 158(a)(5) & (1); (2) ordering reinstatement of truck drivers with back pay; and, (3) requiring collective bargaining. Cross-petition for enforcement of the order. Petition granted cross-petition denied.
Before: VAN GRAAFEILAND and PRATT, Circuit Judges, and RE, Chief Judge of the United States Court of International Trade, sitting by designation.
Clinton's Ditch, a cooperative, bottles and cans Pepsi Cola and related products at its plant in Cicero, New York Until September 1976 Clinton's Ditch directly employed approximately fifteen drivers to distribute these products to members of the cooperative. The drivers were represented by Local 317 of the International Brotherhood of Teamsters (the "union"). The union had entered into a series of collective bargaining agreements with Clinton's Ditch, the last of which ran from February 1975 until February 1978, when the union reached a bargaining agreement with Fairfield Transportation Corporation, which had received a subcontract for the Clinton's Ditch trucking operation in 1976. In 1980 Fairfield terminated its contract, and Clinton's Ditch entered into a new subcontract with Global Leasing, Inc.
The core issue in this case is whether, despite the subcontracting arrangement with Fairfield, Clinton's Ditch remained a joint employer of the drivers so that it was required to bargain collectively with the union before entering into its new subcontract with Global. To resolve that issue that issue we must take a close look at the facts, which are essentially undisputed.
When Clinton's Ditch ran its own operation it was supervised by Robert Venette. For a six-year period ending in September 1976 Venette had direct responsibility over trucking and loading operations, including all aspects of dispatching and supervising the drivers. After receiving shipping tickets for the following day's deliveries, requested by coop members, Venette would prepare and post a dispatch sheet listing drivers' destinations and starting times. as required by the collective bargaining agreement, Venette would assign these runs, which varied in their length and their value to the drivers, on the basis of seniority.
After arriving at work in the morning, drivers would pick up their paperwork, including instructions on backhauls, and depart on their assigned runs. When drivers had problems with customers or equipment, they contracted Venette. If a driver had not exceeded his maximum legal driving hours after finishing a first run, he normally would take the most lucrative run left on the dispatch sheet; on occasion Venette would assign a second or third run not listed on the dispatch sheet. In addition, drivers moved empty trucks around the Clinton's Ditch yard at Venette's direction (referred to as "spotting").
The trucks used by Clinton's Ditch to deliver its products consisted of tractors that carried the Clinton's Ditch logo and trailers that carried the Pepsi Cola logo. Clinton's Ditch rented its trucks from Ryder Rental Corporation, which maintained and serviced the equipment at a Clinton's Ditch garage located approximately 400-500 feet from the bottling plant.
At a September 23, 1975, meeting between Clinton's Ditch and union representatives, Clinton's Ditch informed the union that Fairfield was going to take over the trucking operation for Clinton's Ditch, but that there would be no substantive changes and that all of Fairfield's actions would be subject to the approval of Clinton's Ditch. Clinton's Ditch informed the union that Fairfield initially would just take care of the trucks, but that it eventually would take care of scheduling runs and dispatching drivers. Clinton's Ditch also informed the drivers that if the new arrangement did not work out, Clinton's Ditch would buy back the equipment and the drivers would be reemployed by Clinton's Ditch.
In January 1976 Fairfield purchased the trucks form Ryder and leased them to Clinton's Ditch. Fairfield also maintained the vehicles, as Ryder had done, in the Clinton's Ditch garage, which it rented for one dollar annually. Despite the change in ownership and maintenance of the equipment, however, the trucking operation remained essentially the same until September 1976, with Clinton's Ditch continuing as the direct employer of the drivers.
In May 1976 Clinton's Ditch and Fairfield entered into an agreement providing that Fairfield would assume Clinton's Ditch's responsibilities under collective bargaining agreement with the union. The agreement required Fairfield to transport or pick up materials a the places, dated and times specified by Clinton's Ditch. It also set the rates for Fairfield's compensation. Either party could terminate the agreement on 90 day's written notice, in which event Clinton's Ditch was obligated to repurchase the trucks. The agreement further provided that the rates paid Fairfield were subject to a request for adjustment which should be given "sympathetic consideration". Fairfield was required to obtain the approval of Clinton's Ditch before replacing any equipment.
This agreement went into effect on September 20, 1976. By letter dated September 7, Clinton's Ditch notified the union and the drivers that "effective Monday, September 20, 1976, [Clinton's Ditch] will transfer our trucking over to [Fairfield] along with the collective bargaining agreement * * *. The drivers will be transferred to [Fairfield's] payroll on that date also." In a letter dated September 9 Clinton's Ditch asked the union to acknowledge that Fairfield would be the driver's employer after the transition. Four days later, the union refused by letter to agree that Fairfield would be considered the drivers' employer. The union also reminded Clinton's Ditch that Clinton's Ditch had previously assured the union that when Fairfield took over nothing would change, and that in the event the Clinton's Ditch/Fairfield arrangement was terminated in the future, present employees would be rehired by Clinton's Ditch or another contract trucker. Clinton's Ditch did not respond.
On September 20, all regular drivers were transferred to the Fairfield payroll with no diminution in seniority or benefits. Clinton's Ditch, however, did continue to pay the drivers' vacation pay until the end of the 1976 calendar year. Clinton's Ditch also continued to provide the drivers with small benefits (a Thanksgiving turkey, an annual clambake, and two cases of soda a week) throughout the entire period of the contract with Fairfield.
Operations did not change substantially; the drivers continued to service the same customers out of the same garage with the same trucks. However, there was a new dispatcher, a Fairfield employee, who was trained by Venette for two months following the transition. Venette later helped train another Fairfield dispatcher, although for a shorter period of time.
Venette continued to prepare for Clinton's Ditch the lists of destinations, delivery times, and backhauls, which he gave to the Fairfield dispatcher for preparation of the dispatch sheets. On occasion, Venette or some other employee of Clinton's Ditch would change a Fairfield driver's assignment by directly contracting him by telephone at one of hid stops, ask drivers to move empty trailers around the Clinton's Ditch yard, or ask them to take runs not listed on the dispatch sheet. The drivers had standing orders from Fairfield to follow such directions from Clinton's Ditch personnel.
The drivers were also under instructions to call Clinton's Ditch if they had problems in the field with the product, delivery, or pick-up, but to call Fairfield if they had problems with the trucks. Venette occasionally attached notes to delivery instructions telling a driver to call Clinton's Ditch upon arriving at the destination, or to pick up a check form the coop member.
Clinton's Ditch informed members of the cooperative that the drivers were now Fairfield employees, but that if the members had any problems with the drivers, they should contact Clinton's Ditch. Several times, members complained to Clinton's Ditch about the behavior of drivers. Clinton's Ditch forwarded these complaints to Fairfield, and, on occasion, discussed such matters with Fairfield or lodged written complaints with Fairfield. Fairfield then would investigate the matter and take appropriate action; it often, but not always, informed Clinton's Ditch of ...