Spickelmier Co.

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."