Roy O. Martin Lumber Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1949

83 N.L.R.B. 691 (N.L.R.B. 1949)

In the Matter of Roy O. MARTIN LUMBER COMPANY, INC., EMPLOYER
and INTERNATIONAL WOODWORKERS OF AMERICA, CIO, PETITIONER
Case No. 15-RC-79.-Decided May 18,19.19
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held in this case on
November 2, 1948, before Robert B. Stark, hearing officer of the
National Labor Relations Board.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its Power in connection with
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
On February 14, 1949, the Board, on its own motion, stayed further
proceedings and ordered the record reopened and the case remanded
to the Regional Director for further hearing to obtain more complete
evidence. Accordingly, a further hearing was held on March 14, 1949.
The hearing officer's rulings made at the hearings are free from
prejudicial error and 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
National Labor Relations Act.
2. The labor organization named below claims to represent em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner contends that the Employer's woods crew consti-
tutes an appropriate unit. The proposed unit would, according to the
Petitioner at the original hearing, include truck drivers, loading
crews, cat skinners, road maintenance employees, and log cutters.'
The Employer concedes, in the remanded hearing, contra to the origi-
3 The union representative present at the original hearing was transferred to another
State the day before this remanded hearing and the new union representative was not
familiar with the case or certain of the composition of the proposed unit.
83 N. L. R. B., No. 107.
691
(692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nal hearing, that the log cutters, approximately six in number who
comprise the "emergency crew," are its employees. However, it con-
tends that the other individuals are independent contractors or em-
ployees of the independent contractors, and therefore, not employees
within the meaning of the Act.2
Written contracts introduced into evidence, together with testimony
in the record, show that the truck drivers, termed logging contractors
in the record, own their own trucks, some having purchased their trucks
from the Employer under chattel mortgage agreements .3 Each of
these logging contractors signs a logging contract with the Employer
whereby he agrees for a certain agreed price per 1,000 feet to fell and
transport cut timber from the woods to the Employer's mill for proc-
essing. The Employer has no direct control or supervision over them
except as to routine directions provided for in the contracts, such as to
indicate the tract of land to be cut and measurements of logs desired.
These contractors employ their own timber cutters, cat skinners,
loaders, and road maintenance men to assist them to perform their
contracts, and they exercise complete control over these individuals
as to transfer, rate of pay, and disciplinary action. At most, the Em-
ployer will refer to the contractors any applications for employment in
their files when the contractors cannot find enough men. The con-
tractors determine what days and hours they are to work, depending
on weather, personal factors, etc. Under the terms of the logging
contracts, each contractor furnishes the Employer with a pay-roll state-
ment each week. After deducting the amount due as wages to the
workers listed on the contractor's pay roll and the sum due as payments
for social security, withholding tax, and workmen's compensation from
the payments due the contractor for work performed under the con-
tract, the Employer credits the contractor's account with the balance
remaining. The Employer then pays each person listed on the con-
tractor's pay roll the amount of wages specified thereon. This book-
keeping service is undertaken by the Employer for the convenience of
the contractors as well as for its own business protection. The Em-
ployer does not service any of the trucking equipment. The con-
tractors acquire no seniority rights nor do they share in any benefit or
welfare plan.
In these circumstances, we are of the opinion and find that the truck
drivers are independent contractors and, therefore, are not employees
within the meaning of the Act.4 Because the loading crews, cat skin-
2 Section 2 (3) of the Act, as amended, provides that the term "employee" shall not
include "any individual having the status of an independent contractor "
Some of the truck drivers own more than one truck.
We have previously held that payments of workmen ' s compensation and social security
are not decisive factors in determining if individuals are employees or independent con-
tractors . Matter of Southwestern Associated Telephone Company, 76 N. L . R B. 1105, 1115.
ROY O. MARTIN LUMBER COMPANY, INC. 693
ners, and road maintenance crews are hired and are controlled, in all
essential aspects of their employment relationship, by the truck driver-
owners, they cannot properly be classed as employees of the Employer.
Accordingly, we shall not include any of these persons in the unit
hereinafter found appropriate.5
We find that all log cutters employed by the Employer, in its woods
crew, excluding supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and' 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended; among
the employees in the unit found appropriate in paragraph numbered
4 above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, and also exclud-
ing employees on strike who are not entitled to reinstatement, to
determine whether or not they desire to be represented, for purposes
of collective bargaining, by International Woodworkers of America,
CIO.
5 See Matter of Southwestern Associated Telephone Company , id. at 1114, 1115
844340-50-vol. 83-45