D. L. Mudd, Inc.

National Labor Relations Board - Board Decisions

Dec 5, 1968

173 N.L.R.B. 1142 (N.L.R.B. 1968)

1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. L. Mudd , Inc. and Wholesale Dairy & Ice Cream
Drivers, Local 306 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America , Petitioner . Case 31-RC-889
December 5, 1968
DECISION AND DIRECTION OF ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer A. D.
Ledbetter. Upon completion of the hearing, the
Regional Director transferred the case to the National
Labor Relations Board in accordance with Section
102.67(h) of the Board's Rules and Regulations,
Series 8, as amended. The Employer and Petitioner
submitted briefs to the Board.
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.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The Petitioner requests an election in a unit of
hay haulers and unloaders employed by the Employ-
er, who buys hay from hay producers and sells it to
milk producers and livestock feeders. The Employer
contends that either the unloaders are independent
contractors, or, in the alternative, that the hay haulers
are supervisors.
Hay haulers are engaged in the loading,
transportation and unloading of hay. They are hired
by management and are carried on the Employer's
payroll. They are paid according to a
tonnage-distance formula. The Employer withholds
income tax, social security, unemployment
compensation, and other deductions for the hay
haulers. Medical insurance is available to them with
part of the premium paid by the Employer. The
Employer owns the trucks and trailers used by the
hay haulers and pays for the fuel, oil, upkeep, and
insurance. The hay haulers are not allowed to use the
trucks to work for other employers.
Hay haulers are sent out by the Employer's
dispatcher, who tells them the location of the hay.
The hay is loaded by loaders, who the parties agree to
exclude from the unit The hay haulers contact a
loader usually by telephone or by proceeding to
weighing scales where they select one of the
numerous loaders there. Each loader owns his own
mechanical elevating equipment, and does loading
work for several different people, sometimes on the
same day. The Employer does not place the loaders'
names on its records and is not even aware of their
identity. The loader and the hay hauler drive their
conveyances to the hay stacks, located on the hay
producer's premises, and together they load the hay
into the truck. The hay hauler pays the loader by the
load, in cash or by check, when the truck has been
loaded. Within each season the going rate for loading
remains relatively constant.
After the hay is loaded, if the hauler knows the
destination, he drives the hay there directly If the
destination is not known, the hay is transported to
the Employer's yard, where it remains until
transported to the buyer's premises.
The Employer dispatches a hauler to transport the
hay to the buyer's premises. The hay hauler hires,
directs, and pays an unloader in the same manner as
he does a loader. Sometimes, when the buyer is
located near the Employer and the haulers are busy
with other hauling jobs, the Employer retains an
unloader and pays him to do the hauling. All
unloaders own their own equipment, consisting of a
specially constructed pickup truck with a mounted
motor, drum, boom pulley, cable and hook, enabling
the unloaders mechanically to pull bales of hay off
the hay truck and stack them. Two of the unloaders
spent about 80 percent of their time during the busy
season unloading the Employer's hay. However, all
unloaders perform unloading work for haulers other
than those employed by this Employer.
These facts do not support a finding that the
unloaders are employees of the Employer. Thus,
although two of them spent a majority of their time
unloading the Employer's hay, they do similar work
for others. Each unloader has a considerable
investment in his own equipment, for which he is
solely responsible. The unloaders offer their services
to, and are hired on an ad hoc basis by, the haulers
from whom they receive their pay. As they are not on
the Employer's payroll, no deductions are taken from
their pay. They do not receive from the Employer
benefits such as holiday pay and Christmas bonuses as
do the haulers. Accordingly, we shall not include the
unloaders in the unit.
As we have found, on the basis of the record
herein, that the unloaders are not employees of the
Employer, and as there is no contention, and the
record does not establish, that loaders are employees
of the Employer, we find that the hay haulers are not
supervisors within the meaning of Section 2(3) and
173 NLRB No. 171
D. L. MUDD, INC.
(11) of the Act.'
Accordingly, we find that the following employees
of the Employer at its Chino, California, operations
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
1 Newsday, Inc., 171 NLRB No. 184, Westinghouse Electric
Corporation, 163 NLRB 723 Cf. Gulf Bottlers, Inc, 127 NLRB 850,
enfd. 298 F.2d 297 (C A.D.C.), cert denied 369 U.S. 843 See also El
Monte Hay Market, Inc., 173 NLRB No. 170, Quality Hay Company,
173 NLRB No. 172
2 An election eligibility list, containing the names and addresses of
all the eligible voters, must be filed by the Employer with the Regional
1143
All hay haulers, excluding office clerical employ-
ees, salesmen, professional employees, dispatcher,
guards and supervisors as defined in the Act.
[Direction of Election' omitted from publica-
tion.]
Director for Region 31 within 7 days after the date of this Decision and
Direction of Election . The Regional Director shall in turn make the list
available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed
Excelsior Underwearlnc 156 NLRB 1236