Intl. Union of Operating Engineers, Local 12

National Labor Relations Board - Board Decisions

Dec 12, 1967

168 N.L.R.B. 863 (N.L.R.B. 1967)

INTL. UNION OF OPERATING ENGINEERS, LOCAL 12 863
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO (Oltmans Construction
Company; Jackson Bros.) and Associated Inde-
pendent Owner-Operators, Inc.
International Union of Operating Engineers, Local
Union No. 12, AFL-CIO (Webb and Lipow) and
Associated Independent Owner-Operators, Inc.
Cases 31-CC-80 and 31-CC-89
December 12, 1967
DECISION AND ORDER
By MEMBERS BROWN , FANNING, AND JENKINS
On April 21, 1967, Trial Examiner E. Don Wil-
son issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support
thereof, and the General Counsel filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only to the extent con-
sistent herewith.
The Trial Examiner concluded that the Respond-
ent violated Section 8(b)(4)(ii)(B) by engaging in
threats, restraint, and coercion of certain employers
with the object of forcing them to cease doing busi-
ness with Vance and Watson. He further concluded
that the Respondent had violated Section
8(b)(4)(ii)(A) by engaging in threats, restraint, and
coercion with the object of forcing Watson to join
the Respondent. Essential to both conclusions is
the Trial Examiner's subsidiary finding that Vance
and Watson were independent contractors, not em-
ployees. In making this finding, the Trial Examiner
relied on the facts that both men determined their
profits by setting their own rates of pay, and that
they owned their own equipment and incurred all
expenses of maintaining and operating that equip-
ment. He further concluded that the control exer-
cised by the contractors was limited to the result to
be achieved, not reaching the means of attaining
that result.
In making determinations whether an individual
is an independent contractor or an employee, the
common law "right of control" test governs. The
proper application of this test demands a balancing
of all evidence relevant to the relationship in issue.
We do not agree with the Trial Examiner's in-
terpretation of the facts as to control over the
means utilized or his failure to take into account the
nature of the work involved. The Trial Examiner
has emphasized the fact that the control exercised
by the contractors with respect to Vance and Wat-
son was limited to the achievement of the desired
result and did not include control over the means.
However, the crucial factor is the degree of control
reserved over the means, not the degree of control
exercised.
When they were hired, both Vance and Watson
received their initial instructions from the project
superintendents indicating the jobs to be accom-
plished. However, the simple description of the job
assignment limited the manner and means to be
used to accomplish the job. For example, Watson
was instructed to grade a certain area, the bounda-
ries and level of which were marked by stakes.
Vance's work, removing and spreading the dirt
resulting from a drilling operation, was similarly
limited by the instructions he received the first day
on the job.
Thus, the initial instructions given Vance and
Watson, both skilled equipment operators, clearly
defined the manner of accomplishing the assigned
tasks. Close continuing supervision over Vance and
Watson was unnecessary in this situation. Both
Vance and Watson were hourly paid and engaged
to perform duties that could have been assigned to
acknowledged employees of the contractors. In the
context of the work to be performed, supervision
exercised over Vance and Watson would appear to
be no less than would be exercised over
acknowledged employees of the various contrac-
tors. The degree of control exercised over the
means of operation of Vance and Watson is further
evidenced by their reecurrent dependence upon the
contractors for future employment on these and
other construction jobs, and the fact that the
manner in which they perform will be determinative
of future assignments from these contractors. In our
opinion, all of these considerations indicate that suf-
ficient control over the manner and means by which
Vance and Watson performed their duties was
retained by the contractors to vitiate the conclusion
that Vance and Watson were independent contrac-
tors. See Construction, Building Material and
Miscellaneous Drivers Local Union No. 83, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers etc. (Marshall & Haas),
133 NLRB 1144.
As we find the contractors in hiring Vance and
Watson and their equipment reserved the right to
control the means by which each performed the job
for which he was hired, we conclude that Vance and
168 NLRB No. 112
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Watson were employees. Thus, the Respondent
was involved in disputes with the Employers relat-
ing to their employees, and was not, therefore, in
violation of Section 8(b)(4)(ii)(A) and (B) of the
Act. Accordingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DoN WILSON, Trial Examiner: A charge in Case
31-CC-80 was filed by Associated Independent Owner-
Operators, Inc., herein Associated, on June 23, 1966.1
This charge was amended by Associated on October 25.
A charge in Case 31-CC-89 was filed by Associated on
August 29. This charge was amended by Associated on
October 25. On October 27, the General Counsel of the
National Labor Relations Board, herein the Board, issued
an Order consolidating Cases 3 1-CC-80 and 31-CC-89.
On the same date he issued the consolidated complaint
and notice of hearing herein.2
Pursuant to due notice, a hearing in this matter was
held before me in Los Angeles, California, on February
16 and 17, 1967. The parties were afforded full opportu-
nity to participate. Briefs of the parties have been
received and considered.
Upon the entire record in the case, including my obser-
vation of the witnesses, I make the following:
employer-members of BCA annually perform services
outside the State of California valued in excess of
$50,000. In the operation of their businesses, the em-
ployer-members of AGC annually perform services out-
side California, valued in excess of $50,000 and annually
purchase and receive goods directly from points outside
California, valued in excess of $50,000.
At all times material, Swinerton and Walberg Com-
pany, Oltmans, and Jackson have been engaged in the
construction of a shopping center in California, known as
Glendale Fashion Center, pursuant to separate contracts,
the collective value of which is $4,700,000.
At the Center the contractors described immediately
above and their subcontractors have purchased for use at
the Center products, goods, and materials valued in ex-
cess of $50,000 from California suppliers who received
said products, goods, and materials directly from outside
California.
Webb and Lipow is a California corporation engaged in
the sharing and underpinning of structures, with its prin-
cipal place of business in Los Angeles, California. At all
material times it has been performing its works on a mul-
timillion dollar building on Wilshire Boulevard in Los An-
geles, California, pursuant to a contract valued at approx-
imately $100,000 with C. L. Peck, the general contractor.
Peck and its subcontractors, including Webb and Lipow,
purchased for use at the Wilshire project products, goods,
and materials valued in excess of $50,000 from California
suppliers who obtained them from outside of California.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
At all times material, Swinerton and Walberg Com-
pany, Oltmans Construction Company, herein Oltmans,
and Jackson Bros., herein Jackson, all California corpora-
tions with principal offices located in Los Angeles, Mon-
terey Park, and Los Angeles, California, respectively,
have been engaged as general contractors in the building
and construction industry in California. At all times
material, Swinerton and Walberg Company has been a
member of the Associated General Contractors of Amer-
ica, herein AGC, and Oltmans has been a member of
Building Contractors Association of California, Inc.,
herein BCA. AGC and BCA are each an association of
employers engaged as contractors in the building and con-
struction industry, and they engage in negotiating and en-
tering into collective-bargaining agreements on behalf of
their employer-members with the collective-bargaining
representatives of the members' employees, including
Respondent, in the Southern California area, and in
representing their employer-members in matters of labor
disputes, grievances, and other phases of labor-manage-
ment relations. In the operation of their businesses the
1 Hereinafter all dates are 1966 unless otherwise specified.
The consolidated complaint alleges that International Union of
Operating Engineers , Local Union No. 12, AFL-CIO, herein Respond-
ent, committed unfair labor practices
A. The issues
1. Were Samuel J. Vance and Jon Watson self-em-
ployed persons within the meaning of the Act? This in-
clude whether they were persons.
2. By threats, restraint, and coercion to Webb and
Lipow, did Respondent violate Section 8(b)(4)(ii)(B) of
the Act?
3. By threats, restraint, and coercion to Oltmans and
Jackson, did Respondent violate Section 8(b)(4)(ii)(A)
and (B) of the Act?
B. The Facts With Respect to the Self-employment
Status of Vance
I find that at material times Vance was a self-employed
person.3 He was in the business of excavating and grad-
ing, using a skip loader and dump truck in his operations.
He owns the skip loader and tractor and, when necessary,
rents the dump truck by the hour. He pays his own costs,
thus, he pays for needed insurance, fuel, repairs, and ser-
vices on his own equipment and pays for the rental of the
dump truck and the fuel therefor, when he uses it. He
either solicits work for himself or through the services of
a company known as El Monte Equipment Co. He pays
3 Disputes with self-employed contractors are as primary in character
as if the self-employed contractor had others doing the work for him.
Northwestern Construction of Washington, Inc., 152 NLRB 975, 980.
INTL. UNION OF OPERATING ENGINEERS, LOCAL 12 865
El Monte 10 percent of his earnings for El Monte's ser-
vices in doing his bookkeeping, providing telephone ser-
vice, advertising, and parking his equipment. Vance's
customers are billed by El Monte and, upon payment, El
Monte deducts 10 percent for itself and remits the
balance to Vance. During the last year, Vance worked for
about 100 customers, including contractors and
homeowners. He charges and is paid by the hour. No
deductions for social security or income tax are made
from his compensation. During material times, Vance ob-
tained an excavating and grading job with Webb and
Lipow at the C. L. Peck Wilshire, Plaza Construction Pro-
ject. Webb and Lipow was performing the shoring opera-
tions on the Project pursuant to a contract with Peck. The
shoring required the digging of holes by drills. Vance was
retained to use his skip loader and take the dirt away from
the holes and to spread it. The only directions he received
were on his first day when he was told to keep ahead of
the drills and spread the dirt.
C. The Facts With Respect to the Self-employment
Status of Watson
Watson does grading work. He uses a truck, trailer, and
skip loader. He owns all his equipment. He pays the in-
surance on his equipment. He pays for the fuel. He pays
for the maintenance and service on his equipment. In the
past year he has worked for about 75 different persons
through self-solicitation and job referrals from contrac-
tors and friends in the excavating business. Prospective
customers reach him through his own phone where he has
a telephone answering service for which he pays. While
he works principally for contractors, he also works for
private homeowners. He has no employees but is paid for
his services and the use of his equipment. Social security
or income tax is never deducted from the compensation
he receives from customers. He works by the hour for a
fee which he sets and changes on occasion. He keeps his
own record of the hours he works.4 Swinerton and Wal-
berg Co., Oltmans, and Jackson used Watson's services
separately and from time to time to do finished grading
work for cement or concrete. A superintendent from each
company told him where he was to work and that he was
to grade from grade stakes. He first started work on this
project through a referral from an excavator.
D. Conclusions as to the Self-employment and Person
Status of Vance and Watson
I find the facts establish Vance and Watson as independ-
ent contractors, or self-employed persons. Respondent
contends they are employees. The "right of control" test
governs. It is recognized that no one factor is determina-
tive of this issue. The persons for whom Vance and Wat-
son performed work had the right of control only over the
end to be achieved and not over the means to be used in
reaching such end. Vance and Watson were independent
contractors in law and as a matter of economic reality.
They were persons and self-employed persons. They
determined their own profits by what they paid for, or the
rate at which they rented, their equipment; they set their
own rates of pay; they determined what repairs and ser-
vices they needed and arranged for the same to be done;
they determined what insurance they needed and paid for
the same. They were told what they should do but it was
substantially left to them as to how they should achieve
the ends. They assumed the risks of their businesses.
They were to accomplish results or to use care and skill
in accomplishing results. The control exercised by the
contractors with respect to Vance and Watson was
limited to the achievement of a desired result and did not
include control of the means. They were self-employed
persons within the meaning of the Act. I consider it irrele-
vant that neither possessed a license as a contractor.
E. Violation of Section 8(b)(4)(ii)(B) at Webb and
Lipow5
On August 24, 1966, Vance was working on the
Wilshire Project of Webb and Lipow. The foreman on the
job was Marshall Fletcher. Fletcher did the hiring and fir-
ing and was "top authority" on the jobsite. On this day,
Respondent's agent, business representative Clyde Wil-
son, came on the job and asked Vance to show his union
card. Vance displayed a card he had from Associated In-
dependent Owner-Operators, Inc., and Wilson said the
card meant nothing to him. He wrote Vance's name down
and approached Fletcher. Wilson told Fletcher Vance
was a nonunion contractor and he should be removed
from the job. Thereupon, Fletcher told Vance that Wilson
had said he could not work on the job because he was
nonunion . After a very short time, Wilson told Fletcher
that Vance was still on the job. Wilson said, "I want him
off immediately. If you don't get him off I will have to
stop your operators."s Fletcher said he would remove
Vance immediately. He told Vance to leave the jobsite
and Vance did so. By Wilson's threat, restraint, and coer-
cion to stop the operators in their work,? Respondent vio-
lated Section 8(b)(4)(ii)(B) of the Act.
F. Violations of Section 8(b)(4)(ii)(A) and (B) at Olt-
mans and Jackson
The Respondent's activities with respect to Watson
took place on June 16 and 17, 1966. Watson was em-
ployed by Oltmans and Jackson and others at that time.
Having considered the entire record and recognizing that
it is undenied, I credit the testimony of General Counsel's
witnesses as to the relevant events on these days. In any
event, the parties stipulated that Respondent' s agents, in
demanding the removal of Watson from the jobsites of
Oltmans and Jackson,8 threatened to use economic force,
to picket the jobsites, if Watson were not removed, and
that another object was to force Watson to join Respond-
ent, and to sign a short form labor agreement with
Respondent. I find the threats, restraint, and coercion to
Oltmans and Jackson for the objects found above, with
respect to Watson, violated Section 8(b)(4)(ii)(A) and (B)
of the Act.
4 It must be noted that Respondent considered Watson a self-employed
person since it required him to sign a collective-bargaining agreement with
Respondent.
5 In making findings of fact herein, having observed the demeanors of
Vance, Fletcher, and Wilson, I do not credit the testimony of Wilson
where it conflicts with that of Vance or Fletcher. Fletcher impressed me
as an honest and forthright witness and I accept his testimony as truthful
and accurate.
6 Fletcher had 4 or 5 operating engineers, members of Respondent,
working under him. To stop them would be to close down the job
7 Shut down the job.
S The Glendale Fashion Center Construction Project.
866 DECISIONS OF NATIONAL
That Respondent had a contract with the Employers
requiring the latter to subcontract only to union subcon-
tractors does not change my view. Under Section 8(b)(4)
of the Act, such contracts may be enforced through
lawsuits but not through economic action.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Employers'
operations described in section I, above, have a close,in-
timate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found Respondent has violated Section
8(b)(4)(ii)(A) and (B) of the Act, it will be recommended
that it cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the
Act.9
LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and on the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. At all times material the Employers named in sec-
tion I have been Employers within the meaning of the Act
and have been engaged in commerce and/or in an industry
affecting commerce within the meaning of the Act.
2. Respondent is a labor organization within the mean-
ing of the Act.
3. Vance and Watson are persons and self-employed
persons within the meaning of the Act.
4. By threats , restraint , and coercion , as found above,
to Webb and Lipow, with the object of forcing or requir-
ing Webb and Lipow to cease doing business with Vance,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(4)(ii)(B) of the Act.
5. By threats, restraint, and coercion, as found above,
to Oltmans and Jackson, with the objects of forcing or
requiring Watson to join Respondent and forcing or
requiring Oltmans and Jackson to cease doing business
with Watson , Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(4)(ii )(A) and
(B) of the Act.
[Recommended Order omitted from publication.]
9 I find insufficient probative evidence of a violation of Section 7 of the
Consolidated Complaint.