Prentiss & Carlise Co.

National Labor Relations Board - Board Decisions

Jun 22, 1977

230 N.L.R.B. 373 (N.L.R.B. 1977)

PRENTISS & CARLISLE CO.
Prentiss & Carlisle Company, Inc. and Woodsmen's
District Council of Northern New England of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO-CLC, Petitoner. Case I-RC-
14188
June 22, 1977
DECISION ON REVIEW AND
DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 20, 1976, the Regional Director for
Region I of the National Labor Relations Board
issued a Decision and Direction of Election in the
above-entitled proceeding in which he found appro-
priate a unit of all full-time and regular part-time
loader operators and heavy equipment operators
employed by Employer at its field division offices at
East Newport and Enfield, Maine, rejecting Petition-
er's request for the inclusion in the unit of approxi-
mately 80 additional employees, employed by Em-
ployer in its wood department. Thereafter, in
accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Petitioner filed a timely request
for review of the Regional Director's decision. By
telegraphic order dated May 17, 1976, the Board
granted Petitioner's request for review. Thereafter,
the Employer filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Employer is a Maine corporation engaged in
land management and wood harvesting. Its main
office is located in Bangor, Maine. Employer's wood
department is divided into three field divisions
located at Enfield, Ellsworth, and East Newport,
Maine. Petitioner seeks a unit of approximately 80
employees employed by Employer at its field
divisions at Enfield and East Newport and including
jobbers and other leadmen, cutters, skidder-opera-
tors, truckdrivers, loader operators, and heavy
equipment operators. Employer contends that, while
I United Paper Workers International Union, AFL-CIO-CLC, was
permitted to intervene and concurs with Petitioner's request for the
inclusion of woods employees in the unit sought to be represented.
2 Employer has written contracts with approximately 10 of the 45
jobbers. Both Employer and Petitioner offered into evidence a form entitled
"Wood Contract and Purchase Agreement." The agreement provides that
the seller (or contractor) agrees to sell to Employer, for the consideration
stated, the quantities of wood described therein. Provisions on the back of
the form state that the seller guarantees his title to the wood; that all wood
must be cut from lands subject to the approval of the purchaser: that wood
must be prepared to the satisfaction of the purchaser; that the purchaser
reserves the right to send in extra men to ensure completion of the contract
230 NLRB No. 56
it does employ one loader operator and five heavy
equipment operators, the remaining individuals
sought to be represented by Petitioner are either
independent contractors or employees of indepen-
dent contractors.
Employer's woodcutting operation takes place on
land it owns, as well as land for which it holds the
cutting or stumpage rights. Three field offices
supervise its wood harvesting and purchasing. At its
East Newport location, Employer operates a wood-
yard buying wood from local farmers and indepen-
dent loggers. At its Ellsworth and Enfield field
offices, a field supervisor and assistant field supervi-
sor oversee the woodharvesting operations per-
formed by jobbers and also supervise road construc-
tion and other field operations. Employer now uses
approximately 45 jobbers with heavy equipment and
their crews to harvest its timber and deliver it to 80
lumber mills with whom Employer has contracts to
sell timber. Most of the jobbers have no written
agreement 2 with Employer but operate under what
appear to be oral agreements 3 by which they
undertake to cut timber in areas designated by
Employer and to deliver it to the mills with whom
Employer has contracted. Employer in turn agrees to
pay the jobber on a piece rate basis (per cord) for the
delivery of various wood products to any of several
mills in an area.
Employer does not provide the jobbers with
equipment or with crews. Each jobber hires his own
crew and determines their rate of pay.
Under normal circumstances, a jobber may choose
to deliver the wood he has cut to one of two or three
area mills. His choice appears to be motivated by
such considerations as distance or the generosity of
the mills' scales. There is also some fluctuation in the
piece rate price Employer offers for the delivery of a
certain species of wood to a specified mill. The price
paid by the mill for the wood, however, is not a
consideration since the jobber's earnings are deter-
mined by his agreement with Employer.
When the wood market is poor and the mills'
woodyards become crowded, a jobber's choice
between mills may be subject to direct restrictions by
Employer. Under these circumstances in the past,
Employer has implemented a ticket system for
within the stated time; and that the contract is terminable by either party on
30 days' notice. The seller further promises to comply with Government
laws pertaining to taxes, insurance, and other benefits.
It appears from the record as a whole that the jobbers never have title to
the wood they cut; hence, the sales approach of this written contract does
not reflect the reality of the relationship between Employer and the jobbers.
In addition, Employer's own witness described this contract as "archaic"
and stated that it does not reflect the relationship between Employer and the
jobbers today.
3 There is no indication in the record of the duration of these oral
agreements. Thus, they appear to be terminable at will.
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deliveries. Such a system necessitates that a jobber
first check with Employer and obtain a ticket before
he can deliver his wood to a mill, thus enabling
Employer to control how much wood goes to any
specific mill.
Jobbers and their crews are supervised on an
average of once a week by one of Employer's field
office area supervisors. The supervisor checks to
ensure that the jobber and his crew are complying
with the terms of the stumpage contract, 4 as well as
their compliance with safety and ecology laws. For
example, a supervisor of the Employer may tell a
jobber at what location to cut, to cut his stumps
lower or higher, or direct him to clean out an area
more thoroughly.
Employer maintains a computerized payroll service
which is used by most 5 of the jobbers and their
crews. The company issues a payroll number to each
participating jobber and crewmember. Their pay-
checks are drawn on Employer's bank account. A
jobber's gross earnings are calculated on the basis of
his delivery slips and his piece rate agreements with
Employer. Crewmembers are paid either on an
hourly basis or a percentage of the gross basis. Both
jobbers and crews, however, turn in timecards to
Employer's field offices each week. Employer de-
ducts from each jobber's gross income and amount
to cover Federal and state unemployment taxes, the
Employer's portion of social security, and other
payroll taxes, plus a charge of I to 2 percent of the
gross for providing the service. The employees'
portions of social security are deducted directly from
the crewmembers' checks.
Employer makes the actual payments for state and
Federal unemployment taxes in its own name, which
taxes ensure that the jobbers and their crews will be
eligible for unemployment compensation during the
spring mud season, an annual occurrence which
brings Employer's operations to a halt for 3 to 6
weeks. Employer also represents itself as the employ-
er of the jobbers and their crews 6 for the purpose of
obtaining workmen's compensation insurance from a
private insurance company.
In determining the status of persons alleged to be
independent contractors, the Board applies the
common law right-of-control test.7 Under this test an
employer-employee relationship exists when the
employer reserves not only the right to control the
' Stumpage permits negotiated by Employer allow it to cut and sell a
landowner's timber in exchange for a biweekly payment determined by the
amount and kind of wood taken. This contract sets out in specific detail the
species of wood which may be cut, the minimum diameter of the trees to be
cut, and also guarantees against erosion and other environmental hazards. It
also requires Employer to carry bodily injury and other insurance with
respect to employees doing the actual cutting.
s Four jobbers do not use the payroll service for themselves or their
crews. The record also shows that, while Employer in the past may have
offered the service to other nonassociated groups, such as the logging
museum, it does not presently do so.
result to be achieved, but also the means to be used
in attaining the result. On the other hand, where the
employer has reserved only the right to control the
ends to be achieved, an independent contractor
relationship exists. It is clear that the application of
this test is not a "perfunctory exercise." In order to
determine the nature of the relationship, the Board
analyzes the facts presented in the particular case,
balances them, and arrives at a result.8
The Regional Director has attached significant
importance to the written contracts made with
jobbers, despite his finding that the jobbers do not
have title to the wood they cut as the contracts imply.
We also note that these concededly irrelevant
contracts cover less than a fourth of the jobbers
involved here. All other jobbers perform their cutting
operations pursuant to an oral agreement with
Employer, an arrangement which, based upon this
record, we deem to be unilateral. This Board has had
occasion to note that the control retained through
oral agreements providing for individual services,
which agreements are readily terminable, is inconsis-
tent with an independent contractor status.9
The control of its woodcutting operation retained
by Employer under these oral arrangements is
significant, particularly when coupled with the
payroll service it provides to all but four jobbers. The
payroll service requires submission of timecards,
assignment of individual payroll numbers, and actual
payment by Prentiss-Carlisle checks of jobber and
crew earnings, taxes, insurance, and so on. Though
nominally "optional," the payroll service by its very
nature exerts employer control. As part of it,
Prentiss-Carlisle represents to Federal and state
governments-when making actual payment of the
unemployment taxes that support the jobbers and
their crews when no work is possible in the woods-
that it is the employer of the employees in question.
It similarly represents itself to the workmen's
compensation insurance carrier, which insurance
satisfies a commitment of its stumpage contracts with
the landowners. The W-2 forms for withholding
Federal income taxes are also filed by Prentiss-
Carlisle as the employer. Apparently, this is also the
procedure followed for social security tax forms.
Prentiss-Carlisle also retains effective control of
delivery choices by the jobber, and close control of
the cutting methods by weekly onsite supervision.
6 One crewmember testified that he was told by Employer to use its name
as "employer" and his jobber's name as "foreman" on a workmen's
compensation claim form. Employer also lists itself as "employer" on W-2
forms filed.
I N.L.RB. v. United Insurance Company of America, 390 U.S. 254 (1968).
8 National Freight, Inc., Federal Freight, Inc., and Son Transportation,
Inc., 153 NLRB 1536, 1538-39 (1965).
9 See A. Paladini, Inc., 168 NLRB 952, 953 (1967).
374
PRENTISS & CARLISLE CO.
Considering the nature of the woods operation, it is
unrealistic to attach importance to lack of day-to-day
supervision, as the Regional Director has done. The
jobber cuts on land entered only with the permission
of Employer, he cuts the kind of tree designated by
Employer, and he cuts the size and number of trees
directed by Employer.
Accordingly, we conclude that Prentiss & Carlisle
has reserved, and actually exercises, control over the
manner and means,10 as well as the result of the
jobbers' woods operation, so that the jobbers cannot
be said to be independent contractors. Although they
apparently own and operate their own equipment,
which ownership is frequently an attribute of
independent contractor status, we conclude that true
entrepreneurship does not exist based upon the
arrangement between these jobbers and Prentiss-
Carlisle, as shown by the record.
With "magic numbers and persuasive tongue,""
our dissenting colleague argues herein, we have
contrived to distort the record in order to create an
employer-employee relationship where there is none.
We submit that it is our colleague, not ourselves, who
not only has accepted the testimony of Employer's
witnesses at face value but has also largely ignored
the remainder of the record.
For instance, the dissent argues that we have
mislabeled the jobbers' use of Employer's payroll
service as "nominally" optional when, in fact,
participation is "entirely" voluntary. This ignores the
uncontroverted testimony of one of the jobbers to the
effect that he was repeatedly told by Employer's field
supervisors to get on the payroll service. It is said the
payroll service is of mutual benefit to jobber and
Employer alike. It necessarily has some benefit to
both but, as operated, it strongly indicates an
ambivalent stance on the part of the Employer. The
record clearly reflects how Employer uses the
appearance of an employer-employee relationship
created by its payroll service to serve its own
financial interests. For example, it hold itself out as
the jobbers' employer to a private insurance compa-
ny in order to guarantee that the jobbers and their
crews get workmen's compensation insurance, a
condition of its contracts with woodland owners. To
the Federal government, it holds itself out as the
employer in withholding income tax and paying
social security taxes.
We are accused of less than complete candor in our
description of the "ticket system" implemented
during slumps in the wood market. Our dissenting
colleague stresses that it is the mills which initiate the
ticket process and that, when it was last used by
Employer, it affected only two or three mills. These
'O See Leckie Smokeless Coal Co., 160 NLRB 329 (1966); see also F H.
Snow Canning Company, a Division of the Borden Company. 156 NLRB 1075
(1966).
observations, while true, beg the question, which is
Employer's actual or potential ability to control the
jobbers' wood deliveries. In fact, Employer has such
power. Only it has contracts to sell the wood to the
mills, only it issues the tickets when the millyards
become full, and only it retains complete discretion
to decide who gets those tickets.
It is suggested by the dissent that the extent of
Employer's supervision herein is insufficient to
support our conclusion that the jobbers and their
crews are not independent contractors. Specifically,
it is argued that Employer's field supervisors do not
tell the jobbers or their crews what methods to use in
their work. We respond by reiterating what we have
stated above that Employer's field supervisors
regularly visit the woods and ensure that the jobbers
and their crews meet the numerous specifications in
the stumpage contracts held by Employer. We do not
agree, as our colleague appears to suggest, that
meaningful supervision by Employer requires that it
give lessons in how to hold the axe or when to yell
"timber." The jobbers we find to be supervisors can
do this on a day-to-day basis.
The dissent also suggests that the "entrepreneurial
aspects" of the jobbers' business, as well as the
jobbers' ability to make numerous decisions affecting
their economic fortunes, argue against our finding
that they are not independent contractors. Assuming
for the moment that there are economic fortunes to
be made in the woodcutting industry, a matter about
which we express grave doubts, what economic
decisions do these jobbers really have open to them?
These are men who cut and haul trees for a living.
The trees they cut, the land they cut on, which mills
they truck to, the payroll system most of them use,
and the amount they are paid for these services all
are controlled by Employer. The reality is that these
men have very little economic independence left to
them.
While the average American might still per-
ceive the modern logger along the lines of the
heroic figures of the Bunyan myths, the real status
of the Maine woodsman today is anything but
heroic. Modern woods-work is a far cry from the
logging operations of the last century. Small trees
for pulpwood, not massive saw logs for lumber,
are now the chief crop harvested from the forest.
Chain saws have replaced axes and tractors, and
skidders now do the work of oxen. The major
enemy of the logger today is not the physical
environment but the economic system under
which he produces wood. Created and manipulat-
ed by the large paper companies for their private
l Congreve, "The Mourning Bride." act I, scene I.
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain, the pulpwood procurement system has
driven the logger into debt and deprived him of
even the most rudimentary of social benefits. By
relating a large group of Maine workers to a life
of what could be called pulpwood peonage, it has
made logging one of the lowliest and least
desirable occupations in Maine.12
Thus, it is clear from the record as a whole, including
the above, that these jobbers neither have nor
exercise the economic choices which we have found
to be the hallmark of the independent contractor.
We are said to be remiss in refusing to be guided in
our result by the Board's decision in Twin City
Freight, Inc., S & B Nelson, Inc., 221 NLRB 1219
(1975), a case in which we dissented. Our colleague
sees no "significant distinction" between the facts in
that case and those herein. We disagree. Perhaps if
the interstate motor carrier in that case owned the
highways, rather than the trailers, there would be a
basis for comparison. We believe that the employ-
ee/independent contractor question is one which
must be decided on a case-by-case basis based on a
careful analysis of the record. In this vein, we note
that the dray agent in question in Twin City Freight
operated pursuant to a letter of agreement setting
forth the basic terms of his agency. In the third
paragraph of the agreement, the agent agrees to
"provide and maintain the necessary insurance
coverage and such other failities as may be required
to be an independent business" and further agrees to
be liable as such to the general public. This is hardly
comparable to the totally oral arrangements under
which most of the jobbers here operate nor to the
concededly archaic memoranda governing Employ-
er's relations with a few jobbers. These exist side by
side with Employer's payroll system in which it holds
itself out as the jobbers' and their crews' employer
both to the government and to private insurance
companies. Furthermore, in Twin City we looked
beyond the written agreement to the employer's
complete control of the flow of freight to the dray
agent and the consequent lack of opportunity to
make decisions which would significantly increase
the agent's earnings. We also considered the employ-
er's unilateral division of agent territory as an
important indicium of its control over the agent. In
this case, there is no meaningful written agreement to
look beyond, but the record is redolent of lack of
opportunity for jobbers to make significant decisions
on their own behalf and of total control by the
Employer of a jobber's sphere of influence.
12 Osborn, "The Paper Plantation," p. 130 (Ist ed., 1974), supplied by the
Petitioner apparently as Pet. Exh. 12.
'3 It appears from the record that Joel Pelletier, Charles Richardson,
Francis Gordon, Kendall Hodgson, Everett Brown, and John Lyford are
truckers occasionally used by both Employer and the jobbers. Further
Does our dissenting colleague truly bemoan the
possibility of "obligating" the Employer to take over
the conduct of labor relations with respect to the
woods crews? These workers have been denied the
possibility of meaningful bargaining under our Act.
This denial has thus far been accomplished by an
obvious but ineffectual attempt to create what at first
glance resembles an independent jobber hiring a
crew he is responsible to direct, pay, and insure. But,
as a matter of fact, this "jobber"-lacking any
written agreement defining his responsibilities-can
only be described as a hard-pressed supervisor,
required to assume the burden of supplying his own
equipment in order to survive in a remote area of this
country, and treated for purposes of payroll, related
reporting, and significant insurance coverage as a
rank-and-file employee. It is high time these woods
crews have the benefit of a Board election.
In view of the foregoing and the record as a whole,
we find that the jobbers who do not employ crews,
and the crewmembers of those who do, are employ-
ees within the meaning of Section 2(3) of the Act. We
further find that the jobbers who hire crews, because
of their power to hire, fire, and discipline employees,
are not independent contractors but are supervisors
of Employer. We therefore find a question affecting
commerce exists concerning the representation of
certain employees of the Employer within the
meaning of Sections 9(c)(1) and 2(6) of the Act. We
find the following employees of the Employer
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(c) of the Act:
All cutters, skidder operators, truckdrivers, loader
operators, and heavy equipment operators em-
ployed by the Employer in the Employer's wood
operations in the State of Maine who are engaged
in the cutting and transportation of wood from
Employer-owned or managed woodlands to mills
with whom Employer contracts, excluding sales
employees, office clerical employees, guards, and
supervisors as defined in the Act.13
[Direction of Election omitted from publication.]14
MEMBER PENELLO, dissenting:
The majority of this panel has managed the
considerable feat of converting the facts of this case
into those required by its view of the law, a minority
view vis-a-vis that of the full Board, to create an
employer-employee relationship, and then converting
information as to the employment status of these truckers is unavailable
from the record. We shall therefore allow the truckers to vote subject to
challenge.
14 [Excelsior footnote omitted from publication.]
376
PRENTISS & CARLISLE CO.
its minority view into the controlling principle for
this case. This multiple alchemy is performed by the
incantation of magic words and the waving of a
scepter.
First, the facts: The jobbers whom the majority
finds to be employees of the Employer operate with
their own heavy equipment representing investments
of up to $200,000 and crews of up to 10 persons,
whom the jobbers hire, set wages for, supervise, and
discipline, without any participation by the Employ-
er. Neither the jobbers nor their crews share in any of
the fringe benefits provided to the Employer's
employees. Overseeing the operations of all 45
jobbers, plus their crews, plus road construction and
other field operations, are 2 field supervisors of the
Employer and their assistants, all of whom spend a
considerable amount of time in their offices as well.
This means that a field supervisor or assistant
performs some oversight function with respect to
each jobber's operations irregularly, averaging ap-
proximately once a week. Typically, these inspec-
tions have to do with the condition in which the
harvested land has been left after the cutting, damage
to uncut trees, and compliance with the specifica-
tions of the Employer's stumpage permits as to
minimum size of trees to be cut and the height of the
cut, reflecting the forestry theories of the various
landowners rather than those of the Employer. There
is no evidence of any instructions given by the
Employer's supervisors to the jobbers or their crews
as to the methods to be used in complying with any
of the specifications or other aspects of their
contracts.
The jobbers use their own discretion in at least the
following respects: how much equipment to purchase
and where to purchase and finance it; how and
where to use and maintain the equipment; whether
to employ crews, of what size, and how much to pay
them, the last being a matter between the jobber and
the crewmembers; what part of a designated wood-
land to cut; 15 establishing a timetable and order for
cutting; whether to haul the cut timber to the mills
themselves or contract out the hauling to an indepen-
dent hauler; 16 to which of several mills to deliver the
wood; 17 whether to contract with any of the
Employer's competitors, which several of the jobbers
do; and whether or not to contract with the
Employer to use its payroll services.
15 One jobber's designated area, for instance, is 6 by 3 miles.
i6 And at least onejobber does contract hauling for otherjobbers.
17 Some of the jobbers have their own contracts with mills for purposes
other than the work they do for the Employer.
is It is ironic to be accused of accepting uncontradicted testimony of
witnesses for the Employer at "face value" and otherwise disregarding the
record. while the majority bases its conclusion that use of the payroll service
is "nominally" optional entirely upon the statement of a single jobber, who
Here is where the majority uses one of its magic
words. It recites that the jobbers' use of the
Employer's payroll service is nominally optional.l8
This use of the word "nominally" apparently is
intended to deprive of its natural persuasiveness the
fact that use of the payroll services is indeed
optional; that those who want to use it must pay a
service charge for it; that not all the jobbers use it;
and that, when the jobbers do use the service, not
only their employees working on jobs contracted by
the Employer are listed, for administrative payroll
purposes, as employees of the Employer, but also
those employees of the jobbers who are working on
jobs completely unrelated to the Employer. Thus, the
service is provided, for the mutual benefit of the user
and the supplier, as a business transaction indepen-
dent of the operational relationship between the
Employer and the jobbers.19 It has recently been
provided by the Employer to other outside contrac-
tors and covers employees who by no stretch of the
imagination could be considered employees of the
Employer. Therefore, all of the arguments connect-
ing use of the payroll service with "employee" status
of its users and their employees fall away as cleanly
as a well-felled tree.
A second example of verbal magic is the majority's
transmutation of the Employer's "ticket system" into
a means of control over "how much wood goes to
any specific mill." One important detail omitted from
the majority's opinion is that the only time the record
shows that the ticket system was used it applied only
to I or 2 of the 80 mills with which the Employer
deals. Even more fundamentally, the majority fails to
explain that the limitation of deliveries to a particular
overloaded mill is instituted not by the Employer but
by the mill. When such an instruction is received by
the Employer, it issues tickets to jobbers who are
harvesting wood for which the overloaded mill would
be a likely market, thus guaranteeing that the jobber
may deliver a designated quantity of wood to that
mill. Without such a ticket, the jobber might appear
at the mill and request clearance to unload, subject
to the mill's current situation and the tickets
outstanding. Thus, the only diminution of the
jobber's discretion to deliver to the mill most
economical for him is in a very limited situation that
is only peripherally in the control of the Employer.
What is left, then, to suggest other than an
independent contractor relationship between the
simply asserted that he was told by representatives of the Employer to
subscribe to the payroll service. It is noteworthy, however, that the jobber in
question testified that his reason for signing up for the payroll service was to
obtain workmen's compensation coverage which he desired. In actuality,
therefore, it would seem that it is the majority which has ignored the record
with respect to this issue, except for some isolated testimony by one witness,
and is thus unable, or unwilling, to see the forest for this tree.
'9 In fact, the Employer makes a profit on providing this service.
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer and the jobbers? It is, in the view of the
majority of this panel, that the contracts are "readily
terminable," a fact which, in the most spectacular
display of the majority's wizardry, "is inconsistent
with an independent contractor status." Aside from
the lack of authority for such a sweeping statement,
such assertion flies in the face of a host of decisions
in which the Board has found independent contrac-
tor status in spite of the short-term terminability of
the contract.20 While terminability at will by the
dominant party has been weighed as a factor
consistent with an employer-employee relationship, it
has never been considered sufficient in itself to
justify finding that such a relationship exists.
The majority's rationale apparently is that, assum-
ing the jobbers are more dependent economically on
the Employer than the Employer is on them (an
assumption that can be based only on speculation
insofar as this record is concerned), the Employer's
option to terminate the relationship gives it the
power to control the means by which the jobbers
perform their contracts even if that power has not
been exercised. But this or any similar rationale does
not represent the view of the Board. We do not
decide whether the business firms who contract out
work have the economic leverage to demand a
reservation of the right to control the means of
performance. We decide, rather, whether such a right
has in fact been reserved. There is no evidence that
this Employer has done so. 21
When balanced against the numerous entrepre-
neurial aspects of the jobbers' businesses-the large
investments and the many decisions and policies
20 E.g., Ace Doran Hauling & Rigging Co., 214 NLRB 798 (1974); Conley
Motor Express, Inc., 197 NLRB 624 (1972); Donrey, Inc., d/b/a Las Vegas
Review-Journal, 223 NLRB 744 (1976).
21 Thus, assertions of the majority that the jobbers "have very little
economic independence left to them," that they "neither have nor exercised
the economic choices which we have found to be the hallmark of the
independent contractor," and "the record is redolent of lack of opportunity
for jobbers to make significant decisions on their own behalf and of total
control by the Employer of a jobber's sphere of influence," while appealing
which if pursued will affect their own economic
fortunes-the factors on which the majority relies,
even if given greater weight than I would, are
insubstantial. A fair weighing of the factors would
show, I think, a stronger case for independent
contractor status here than in the recent case of Twin
City Freight, Inc., S & B Nelson, Inc., 221 NLRB 1219
(1975), where a majority of the Board, the members
of the majority of this panel dissenting, found a dray
agent to be an independent contractor despite the
fact that the employer supplied him with a terminal
and trailers, bearing its identification and insured by
the employer. Aside from the greater degree of
ownership and control of the equipment they use by
the jobbers in the instant case, I see no significant
distinction between the two cases.22
The result reached by the majority in the instant
case is almost ludicrous from a practical viewpoint as
well. There is no dispute over the fact that the
Employer exercises no control over the labor
relations of the jobbers' crewmembers. Yet the
majority holds that it is their employer. And, by
certifying a union as their representative, the Board
would obligate the Employer to take over from the
jobbers the responsibility for the conduct of labor
relations with respect to the crews. This strikes me as
further evidence that the majority is creating an
employer-employee relationship here. I think the
decision that one already exists is wrong. At the very
least, it is a gross modification of our standard of
review to hold that the Regional Director committed
reversible error in finding that the jobbers are
independent contractors.
as sociological rhetoric, have nothing to do with the application of the
"right-to-control" principle to the facts of the case. It thus appears that in
their zeal to reach a desired result, the members of the majority have
ventured far out on a limb-a limb which is easily sawed off by mere
recognition of the fact that the Employer has neither reserved nor exercised
the right to dictate the means by which the jobbers do their work.
22 See also Ace Doran Hauling & Rigging Co., supra; Harbor Plywood
Corporation, et al., 119 NLRB 1429 (1958).
378