Spickelmier Co.

National Labor Relations Board - Board Decisions

May 10, 1949

83 N.L.R.B. 452 (N.L.R.B. 1949)

In the Matter Of ERNEST SPICKELMIER , EDITH P . SPICKELMIER, CARL
F. SPICKELMIER , FRED J . SPICKELMIER , BETTY P. SPICKELMIER, AND
EDITH GREER , PARTNERS D/B/A SPICKELMIER COMPANY AND/OR
BUILDERS SAND & GRAVEL COMPANY , EMPLOYER and LOCAL UNION
No. 716 , COAL, ICE, BUILDING MATERIAL & SUPPLY DRIVERS, AF-
FILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL,
PETITIONER
Case No. 35-RC-188.Decided May 10,1949
DECISION
AND
ORDER
Upon a petition duly filed, hearing in this matter was held before
William Naimark, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the case, the Board' finds :
1. The Employer, a partnership consisting of six partners, is
engaged in the building supply ' business in Indianapolis, Indiana.
Its principal office and place of business is at East 52d Street, where
it maintains a building supply yard and purchases for resale such
items as brick, cement, and plastering materials., It also operates
a sand and gravel pit at 72d Street, some 4 miles away, where it quar-
ries and sells sand and gravel. The 72d Street operation is solely
involved herein.
The 52d Street operation, which is conducted under the name of
Spickelmier Company, makes its sales primarily to concerns engaged
in the construction of residential and commercial buildings, some of
which are large building projects. During the year 1948, the partner-
ship made purchases outside the State of Indiana for this operation in
excess of $200,000,3 which represented 38 percent of all such purchases
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-man panel consist-
ing of the undersigned Board Members [Houston, Reynolds, and Murdock].
2 It also purchases certain materials which it manufactures into concrete blocks for sale
as part of its building supply business at this location.
S In most instances, the material so purchased was shipped directly to the building sup-
ply yard at 52d Street. Some of this material, however, was shipped to the job sites of
customers.
83 N. L. R. B., No. 71.
452
SPICKELMIER COMPANY 453
for that period. During the same period, its total sales in this opera-
tion were more than $1,000,000, all of which were made within the
State.
The 72d Street operation, which is conducted, for the most part,
under the name of Builders Sand & Gravel Company, makes its sales
primarily to residential builders. The partnership's annual purchases
for this operation amount to about $50,000, of which approximately
$2,500 represejlts purchases from outside the State. Its annual sales
in this operation exceed $100,000, all of which are made within the
State.
The Employer contends that its operations do not affect commerce
within the meaning of the Act to an extent warranting assertion of
jurisdiction by the Board. Its primary position is that its sand and
gravel operation is separate from its building supply business at 52d
Street, that the sand and gravel operation alone should, therefore, be
considered in determining whether the petition has raised a question
concerning, representation affecting commerce, and that that operation
is essentially local and does not have any substantial effect upon com-
merce. Its secondary position is that even if the sand and gravel and
the 52d Street operations are both considered, the combined operations
are nevertheless essentially local and have no substantial effect upon
commerce.
In support of its primary position, the Employer points to the fact
that : (1) the sand and gravel operation is conducted under a different
name than the building supply yard, has a separate location about 4
miles away, and has separate management; (2) the sand and gravel
operation orders its own materials and machinery, takes its own sales
orders and makes its own deliveries, and sells products that are not
sold by the building supply yard; and (3) the sand and gravel opera-
tion has different hours of work and pay scales, maintains its own
pay-roll records, and does not interchange or share employees with the
building supply yard.
The record indicates, however, that the same individuals who own
the building supply yard own the gravel and sand operation, that the
latter operation uses the name "Spickelmier Sand & Gravel Company"
as well as "Builders Sand & Gravel Company," and that, although the
two operations have separate immediate supervision, one of the part-
ners and owners of both operations exercises over-all supervision over
both operations. Moreover, all materials and machinery ordered by
the sand and gravel operation are paid for by the partnership at its
principal office at 52d Street, and no separate bank account or books
of account are maintained for the sand and gravel operation. In addi-
tion, the main office pays all employees and others engaged at the sand
and gravel operation.
844340-50-vol. 83-30
454 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances, and particularly in view of the fact
that both operations are primarily engaged in the same business, via.,
the sale of building supplies of the same general nature to building
construction concerns,4 we find, contrary to the contention of the Em-
ployer, that the sand and gravel operation is an integral part of the
partnership's building supply business, and, accordingly, that the com-
merce issue raised should be determined on the basis of the pertinent
facts with respect to both operations.
We find further that the Employer's combined operations thus
to be considered, which include annual out-of-State purchases total-
ing approximately $202,500 and representing approximately 35 per-
cent of its total purchases, and which have a close relationship.to the
building-construction industry, affect commerce within the meaning
of the Act to an extent warranting our assertion of jurisdiction in this
case.5
2. The labor organization involved claims to represent employees
of the Employer.
3. No 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, for the following
reasons:
The Petitioner seeks a unit of all truck drivers at the Employer's
sand and gravel pit. The Employer concedes that such a unit would
be appropriate if the drivers were employees within the meaning of
the Act, but contends that the drivers are independent contractors and
could not, therefore, constitute an appropriate unit.
The drivers involved herein a are engaged by the Employer to haul
sand and gravel with their trucks from the Employer's sand and gravel
pit to its customers. They are paid 5 cents a ton-mile for each load,
computed on the basis of the shortest route between the gravel pit and
4 Cf. Matter of Duke Power Company, 77 N. L. R. B. 652, where the operation that was
considered separately for commerce purposes was a local bus transportation system. and
the employer 's primary business was the generating , transmitting , and distribution of elec-
tric energy; Matter of Herff Motor Company, 74 N. L. R. B. 1007 , where the employer's
motor rebuilding division was considered separately from its automobile retail sales agency ;
Matter of Johns -Manville Corporation , 61 N. L . R. B. 1, where a local branch of a Nation-
wide sales company was considered separately ; and Matter of Remington Rand, Inc., 27
N. L. R. B . 488, where a local service division of a manufacturer and lessor of business
machines was considered separately.
6 See Matter of J. H. Patterson Co., 79 N. L. R B . 355; Matter of Akron Brick & Block
Co., 79 N. L. R. B. 1253 Cf . Matter of Tampa Sand & Material Company, Inc., 78 N. L.
R. B. 629; Matter of Cordele Sash, Door and Lumber Company, 79 N. L. R. B . 578; Matter
of Richter Transfer Company, 80 N. L. R. B . 1246; Matter of Texas Construction Material
Company, 80 N. L. R. B . 1248, and Matter of Knoxville Sangravl Material Company, Inc.,
80 N. L . R B 1461.
In asserting jurisdiction , we find it unnecessary to, and do not, consider any interstate
commerce aspects of Spickelmier Industries , Inc., a corporation which is engaged in the
manufacture of aluminum windows, and which has among its stockholders and officers per-
sons other than the partners of Spickelmier Company as well as Spickelmier Company,
partners.
6 They presently number about 10.
SPICKELMIER COMPANY 455
the place of delivery. A truck is loaded with the type and quantity
of material designated, by the pit supervisor. The driver then drives
on a scale, and the load is weighed. The driver is then given a delivery
ticket which indicates where the -load is to be delivered. -Ordinarily
no mention is made to the driver as to the route to be taken in making
the'delivery,7 nor is he otherwise directed as to the manner of delivery.
The driver has the delivery ticket receipted upon the delivery of the
order and also collects the required amount of money on C. O. D. orders.
When he returns to the pit, he hands in both the receipted delivery
ticket and any money collected. A waiting room is provided for the
drivers where they may remain between hauls.
The drivers are engaged by the pit supervisor on a terminable at
will basis for indefinite duration. When engaged, they are advised
that operations commence at 7: 00 a. m., but they are not told that they
have to report at that hour or any other hour. They do, as a general
rule, however , report between 7: 00 and 9: 00 a. m. Operations ordi.
narily end about 4: 00 p. m., but the drivers are apparently free to, and
do, sometimes leave several hours before that time. There is no record
kept of the hours or days worked by the drivers, and no requirement as
to the number of hours or days they must be on hand. In fact, they
sometimes remain away from the pit for as much as 2 weeks at a time,
after simply notifying the Employer that they will not be available for
the particular period. The drivers also do not have to receive permis-
sion from the Employer, and are not disciplined, for reporting late or
leaving early, but they usually notify the Employer when they are
going to do so. The pit supervisor did, however, recently terminate the
services of a group of drivers for allegedly questioning his integrity
and that of the Employer and using profanity.8 The record also indi-
cates that the Employer has a "no drinking" rule while the drivers are
on the job,9 but that this is the only working rule or regulation that ap-
plies to the drivers.
The drivers earn approximately $75 per week hauling loads for the
Employer, and are paid weekly on the basis of the Employer's compu-
tation figured in accordance with the 5 cent a ton-mile agreement 10
The Employer does not deduct social security or withholding taxes
from their pay. None of the drivers receives paid vacations,11 or any
7 The record indicates , however , that as a matter of mutual protection the driver and the
pit supervisor usually make a joint decision on the shortest route to be taken on a long
haul
8 These drivers were thereafter sent a telegram by the Employer stating : "Effective at
once you are requested to report for hauling service at gravel pit on same base prior to
lay-off."
There is no evidence, however , as to whether disciplinary measures ever have been, or
would be, taken if this rule were violated
11 The drivers do not bill the Employer in any fashion based on any computation of their
own.
11 They do apparently, however , take unpaid vacations , the time for which is determined
by mutual convenience and agreement.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other Employer benefits except a Christmas present: 2 The Employer
does not carry workmen's compensation insurance covering the drivers,
but does carry contingent liability insurance for injury or damage to
other persons by the drivers' trucks.13
Each driver not only owns his own truck, as already indicated, but
also pays for all its gasoline, repairs, and insurance. Some of them
display their names and telephone numbers on their trucks, and sev-
eral are listed in the telephone directory as being engaged in the truck-
ing business. Most of the drivers also do hauling for other firms,
to which the Employer has never objected. This outside work is
usually done on week ends, but the drivers occasionally do haul for
others during the week. The record also indicates that some of the
drivers quite frequently purchase sand and gravel from the Employer
and then resell it on their own. A few of the drivers have done stock-
piling at the pit for several hours and been paid on an hourly rate
therefor, but this has occurred infrequently.
There are five regular employees at the gravel, pit, consisting of
operators, maintenance men, and clericals, who are paid on an hourly
basis, required to work certain specified hours daily, and receive paid
vacations and other benefits. The Employer also employs other truck
drivers at its building supply yard, who drive company-owned trucks
with the Company name on them, and who also are paid on an hourly
basis , are required to work specified hours daily, and receive paid
vacations and other benefits: •
The standards to be applied in determining who is an independent
contractor, within the meaning of Section 2 (3) of the Act, were coin-
prehensively discussed in our decision in the Steinberg case.14 As
noted there, the legislative history of Section 2 (3) makes clear that
Congress intended to give to the'terms "employee" and "independent
contractor" their conventional meanings, and that the Board, in de-
termining coverage under the Act, should follow the ordinary tests
of the law of agency.' As we further pointed out, the general test thus
contemplated is the familiar "right of control" test, under which an
employer-employee relationship is found to exist where the person
for whom the services are performed reserves the right to control the.
manner and means by which the result is accomplished, but does not
exist where the right to control is merely limited to the result to be
accomplished.
Applying these standards to the facts disclosed by this record, we are,
persuaded that the drivers involved herein are independent contrac-,
tors. Although some elements of the relationship between the drivers
12 This has been done for the last 2 . years, and consisted of $5 in cash the first year and'
an automobile robe the second year
u This, however , is under a blanket policy covering anybody that might be operating any
vehicle in the interest of the Employer.
14 Matter of Morris and Julian Leslie Steinberg , d/b/a Steinberg and Co ., 78 N. L. R. B.-
211.
SPICKELMIER COMPANY 457
and the Employer suggest that they are employees, an over - all view,
in our opinion, compels a contrary finding. In particular, we note
that : (1) each driver owns his own truck and pays for all its gasoline,
repairs, and insurance; (2) the sole compensation of a driver for
hauling for the Employer is 5 cents a ton-mile for loads hauled, and,
accordingly, his net earnings represent the difference between such
compensation and his expenses in operating his truck; (3) some of the
drivers have their names and telephone numbers on.their trucks, and
some are listed in the telephone directory as being in the trucking busi-
ness; (4) most of the drivers also do hauling for other firms, and this is
done while the pit is in operation as well as on week ends; ( 5) some of
the drivers frequently purchase sand and gravel from the Employer
and sell it on their own; (6) there is no requirement that the drivers
be on hand any specified hours daily or any specified days weekly,
and they are free to, and do, -report late, leave early, and fail to report
at all, without being disciplined for doing so; 15 (7) the drivers are
hot directed as to the route to be taken in making a delivery, or other-
wise directed as to the manner of delivery; 16 (8) the Employer does
not deduct social security or withholding taxes from the drivers' pay,
or carry workmen's compensation insurance for them; (9) unlike the
regular employees at the pit and the drivers employed at the Em-
ployer's building supply yard, the drivers involved herein do not re-
ceive paid vacations or other employer benefits; and (10) testimony
of both the Employer and the drivers themselves indicates that both
parties consider the relationship as one of employer-independent con-
tractor rather than employer-employee.17
Upon the basis of the foregoing facts, and the entire record in the
case, we conclude that the drivers petitioned for herein are inde-
pendent contractors within the meaning of the Act. Accordingly,
we find that no 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, and we shall,
therefore, dismiss the petition.
ORDER
Upon the basis of the entire record in this case, the National Labor
Relations Board hereby orders that the petition filed in the instant
matter be, and it hereby is, dismissed.
"As indicated above, they even remain away from the pit for as much as 2 weeks at a
time after simply notifying the Employer that they are going to do so
16 As indicated above, the driver and the pit supervisor usually make a joint decision on
the route to be taken on a long haul, but this is done as a matter of mutual protection to
insure against serious loss to either party, and the driver is still free to take the route of
his choice. - -
17 We consider, as particularly pertinent in this connection the testimony of several
drivers who variously described their work for the Employer as "hauling for myself," "I
was in business for myself," "I work for myself %s I see it ," and "I do independent hauling."