Quality Hay Co.

National Labor Relations Board - Board Decisions

Dec 5, 1968

173 N.L.R.B. 1144 (N.L.R.B. 1968)

1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Quality Hay Company' and Wholesale Dairy & Ice
Cream Drivers , Local 306, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America. Petitioner . Case 21-RC-10870
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 Isadore W.
Ein. After the hearing was closed, 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, subsequently,
filed a brief with 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 labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The Petitioner requests an election in a unit of
all hay haulers, mechanics, and unloaders employed
by the Employer. The Employer contends that the
hay haulers are supervisors, and the unloaders are
independent contractors.2
The Employer purchases hay and delivers it to
dairies. Its hay haulers are engaged in loading,
transporting, and unloading the hay. They are hired
by management and are carried on the Employer's
payroll. The Employer withholds income tax, social
security, and other deductions from the paychecks of
the haulers. The Employer owns, services, and repairs
the trucks they drive, and does not permit the hay
haulers to use the trucks for any purpose other than
as directed by the Employer. The haulers are dis-
patched from the Employer's yards in Chino and
Artesia, California, to farms at least 200 miles away,
where the hay is located. To assist them they select
loaders, who the parties agree should be excluded
from the unit, from lists posted at public scales in the
farming areas. The loaders own their equipment and
load the hay on the Employer's trucks at the fixed fee
of $13 per load. After the hay is loaded, the haulers
return to the Employer's yards.
The hay is generally sold to dairies in the vicinity
of the Employer's yards, and normally the same
hauler who brought the load in, will drive the
truckload of hay to the customer's premises. To assist
the hauler in delivering the load, the Employer assigns
an available unloader, who follows the truckload of
hay to the customer's premises with his unloading
equipment. The normal procedure in unloading a
truck is for the unloader to lift the bales of hay from
the truck with his unloading equipment, while the
hauler stacks it in the area designated by the
customer. The unloading process takes approximately
an hour, and afterwards the unloader is free to decide
for himself whether he will return to the Employer's
yards. The unloaders are paid by the Employer at the
same fixed fee as the loaders, of $13 per load. The
standard rate paid to both the loader and unloader is
subsequently deducted from the pay of the hauler,
who is paid on the basis of $3 per ton for a minimum
load of 24 tons.
In our view the record does not support a finding
that the unloaders are employees of the Employer.
Although 6 of the 10 unloaders involved have worked
"a good part of their time" for this Employer, the
record indicates that they also do similar work for
other employers. They decide each day whether they
will work for Quality or another company, and
determine their own working hours. They are com-
pletely responsible for the purchase, maintenance,
and repair of all the equipment they use in the
unloading process. Further, they are-not on the
Employer's payroll and no deductions are made from
their pay. We, therefore, shall not include unloaders
in the appropriate unit.
We find, however, on the basis of the facts set forth
above, that the hay haulers are employees of Quality
and not supervisors within the meaning of the Act.
There is no contention, and the record does not show,
that loaders are employees of the Employer. More-
over, we have found that on the facts herein the
unloaders are not employees of the Employer. Ac-
cordingly, as the haulers do not exercise supervisory
' The name of the Employer appears as amended at the hearing. 2 The parties agree that mechanics should be included in any unit
found appropriate by the Board.
173 NLRB No. 172
QUALITY HAY COMPANY
authority over any employees of the Employer, they
cannot be considered supervisors within the meaning
of the Act.'
We, therefore, find that the following employees
constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
3 Newsday, Inc., 171 NLRB No . 184, Westinghouse Electric Cor-
poration, 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, D. L. Mudd, Inc., 173 NLRB
No. 171.
4 An election eligibility list, containing the names and addresses of
all the eligible voters, must be filed by the Employer with the Regional
1145
All hay haulers and mechanics employed by Quali-
ty Hay Company at its operations in Artesia,
California, excluding all other employees, office
clerical employees, guards, professionals, and super-
visors as defined in the Act.
[Direction of election4 omitted from publication.]
Director for Region 21 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 Underwear Inc., 156 NLRB 1236.