A. E. Blacklidge

In the Matter of A. E. BLACKISDGE, AN INDIVIDUAL, EMPLOYER AND PETITIONER and GENERAL DRIVERS LOCAL UNION No. 228, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAIWVEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L., UNION Case No. 15-RM-.0.Decided September 14, 1950 DECISION AND DIRECTION On June 21, 1950, pursuant to a stipulation for certification upon consent election entered into by and between the parties herein, an. election by secret ballot was conducted under the direction and super- vision of the Regional Director for the Fifteenth Region in a unit consisting of all truck drivers who worked at the port of Gulfport, transporting bauxite to the U. S. Naval Stock-Pile during the period from May 1 to June 6, 1950, inclusive. At the conclusion of the elec- tion, the parties were furnished with a tally of ballots, which showed that of approximately 154 eligible voters, 125 valid votes were cast. Of this number 16 votes were cast for, and 24 votes against, the Union, and 85 ballots were challenged. One ballot was declared void by the Board agent conducting the election, and both parties chal- lenged his ruling. No objections to the conduct of the election were filed within the time provided therefor. As the challenged ballots were sufficient in number to affect the results of the election, the Regional Director, acting pursuant to the Board's Rules and Regulations, investigated the issues raised by the challenges, and on June 23, 1950, issued his report on challenged ballots, in which he recommended that a hearing be held on the challenges and the one ballot ruled to be void. On June 29, 1950, the Petitioner-Employer filed exceptions to part of the Regional Director's report. The Petitioner and the Union, however, waived a. ruling on any exceptions for the purpose of expediting a hearing on the challenges. On June 29, 1950, the Board issued an order directing that a hearing be held for the purpose of taking evidence on the issues raised by the challenges and the one ballot declared void by the Board agent, and 91 NLRB No. 39. 222 A. EL BLACKLIDGEI 223 that the hearing officer prepare and serve upon the parties a report resolving questions of credibility and containing findings of fact and recommendations as to the disposition of the challenged ballots. The hearing was held on July 5, 1950, before Andrew P. Carter, hearing officer. All parties appeared and participated. The Peti- tioner and the Union filed briefs with the hearing officer. On July 24, 1950, the hearing officer issued his report containing findings of fact and recommendations to the Board, a copy of which is at- tached hereto, in which he recommended that 53 of the challenges be overruled, and that the challenges to the ballots of all other persons named in the Regional Director's report be sustained. Thereafter, the Petitioner filed timely exceptions to part of the report, and the Union filed a brief in response to the Petitioner's exceptions to the report.1 The Board 2 has reviewed the rulings made by the hearing officer and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board, having considered the report contain- ing findings of fact and recommendations to the Board, the Peti- tioner's exceptions, the brief filed by the Union, and the entire record in this case, hereby adopts the hearing officer's findings and conclu- sions except insofar as they are inconsistent with this Decision and Direction. The Petitioner has a contract with a stevedoring company to haul bauxite from the docks in Gulfport, Mississippi, to a storage depot. Inasmuch as the Petitioner has only two trucks used for the hauling of bauxite, he entered into oral agreements with a number of truck owners to haul the bauxite. The agreements provide that each truck owner is to furnish a driver with the truck, and that the truck owners will be paid a specified amount a ton for the bauxite hauled by their trucks.' The truck owners hire and pay the drivers,' and pay their ' In its response to the Petitioner's exceptions , the Union requested that certain state- ments contained in the Petitioner 's exceptions be stricken from the record , and not be considered by the Board . The Board has not considered any statements outside of the record in reaching its conclusions . The motion to strike is hereby granted. 2 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 -member panel [Chairman Herzog and Members Houston and Styles]. 3 Prior to June 6 , 1950 , the agreement was to pay the truck owners 40 cents per ton. On that date the Union called a strike which was terminated on June 15 , 1950, when the Petitioner and the Union entered into the stipulation for certification . Thereafter, the truck owners were paid 421/ cents per ton. 4 At the termination of the strike the Petitioner and the Union entered into an agreement which provided , inter alia, that the Petitioner would pay his truck drivers $1 per hour, and that he would "recommend and use his best efforts" to have the other truck owners pay a like wage. The agreement also provided that the Petitioner would not use any trucks. whose owners violated any of the provisions of the agreement. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD social security taxes. They pay for the gas and oil, and the general maintenance expenditures of their trucks. The Petitioner is respon- sible under his contract with the stevedoring company to see that workmen's compensation insurance is carried on everyone who drives trucks under that contract, and that $10,000 to $20,000 liability insur- ance is carried on each truck. The Petitioner carries both the work- men's compensation insurance and the liability insurance on his own account, and then deducts each truck owner's portion from the payment made to the truck owners under the tonnage agreement. Some of the truck owners, however, carry their own insurance. , When a ship arrives at the dock, the drivers pull the truck into line at the dock area. While on the job, the driver, whether the owner of the truck or a person hired by the owner, is under the same super- vision and control of the Petitioner and his dock foremen as the Peti- tioner's own drivers. The Petitioner and his foremen decide which trucks shall be used,5 supervise the lining up of trucks, direct them to the hoppers unloading the bauxite from the ship, watch over the load- ing of the trucks, and keep a tally on the load. All trucks are num- bered by the Petitioner's direction. The drivers are instructed as to the route from the dock to the storage depot which must be followed. The Petitioner and his foremen "knock off" any truck violating any of the Petitioner's rules or deviating from the prescribed route. The Union challenged the truck owners who drive and obtain others to drive their trucks (listed on Appendix A), on the ground that they are independent contractors or supervisors. The hearing officer found, and we agree, that these truck owners are not independent contractors, but are employees under the Acts He further found that "they are an identifiable group having a commu- nity of interest more closely related to Blacklidge than to the truck driver-non-owners and in keeping with the principles of the Act should not be allowed to vote." The Petitioner, excepted to this latter finding, contending that these employees are not supervisors,' that they report to the job as any other of his employees, and while on the job are sub- j ect to identically the same control as his own employees hired by the hour. 5 The Petitioner does not always know in advance how many trucks he is going to need, and therefore more trucks than are necessary for the job come to the dock. 9 Persons performing any work or rendering any services are employees and not inde- pendent contractors, if-the party engaging them has the right to supervise and control them in the manner and details of their performance . Nu-Car Carriers, Inc., 88 NLRB 75 ; N. L. R. B. V. Steinberg d Co., 182 F. 2d 850 (C. A. 5). 7 The hearing officer did not find, as the Petitioner states in his exceptions, that these employees were not supervisors . The hearing officer was of the opinion that these truck .owners are "something more than employees, or even supervisory employees." A. El. BLAaKLIDGEI 225 Inasmuch as these employees pay, hire, and discharge the persons driving their trucks, we find that they are supervisors within the mean- ing of the Act, and shall sustain the challenges to their ballots 8 The Petitioner challenged the ballots of truck drivers hired by the truck owners (listed on Appendix B), on the ground that they were not his employees. The hearing officer found that these truck drivers are actually the Petitioner's employees. The Petitioner in his exceptions argues that these drivers are much more remote from his employment than are the drivers who own trucks and operate them for the Petitioner under an oral contract. The record shows that these drivers are instructed by the truck owners to take their directions from the Petitioner or his foremen while working at hauling bauxite, and that the Petitioner and his foreman exercise complete control over them. At such times these drivers consider the Petitioner as their boss. On these facts, we find that the truck drivers hired by the truck owners are the Petitioner's employees within the meaning of the Act. The fact that they are paid by the truck owners does not destroy the employer-employee relationship? Moreover, their wages were set by an agreement entered into between the Petitioner and the truck own- ers. We shall therefore overrule the challenges to these 32 ballots, and shall direct that 'such ballots be opened and counted. During the hearing, the Union withdrew its challenges to 11 truck owners who hire no other drivers (listed on Appendix C). The hear- ing officer found, in keeping with the Union's withdrawal, that they are the Petitioner's employees within the meaning of the Act, and that their votes should be ruled valid. The hearing officer found that 10 employees who were challenged by the Union (listed on Appendix D), are truck drivers who worked dur- ing the eligibility period and should be declared eligible to vote. He found, in accordance with the stipulation of the parties, that Clifford Saucier, Ivan Orrels, Jessie Owen, and Norris.Necaise were properly challenged, and that their votes should be declared invalid. He fur- ther found, in accordance with the stipulation of the parties, that the ballot declared void by the Board agent, should be ruled void on the basis of its ambiguity. As no exceptions to these findings and recommendations have been filed by either the Petitioner or the Union, we hereby adopt the hear- 8 Cf. Wade f Paxton, 89 NLRB 829; Gilchrist Timber Company, 73 NLRB 1197. 8 Cf. New England Telephone and. Telegraph Company, 90 NLRB 639 ; Shell Oil Company, Incorporated, 90 NLRB 371 ; Wade d Paxton, 89 NLRB 829 ; Gilchrist Timber Company, 73 NLR$ 1197. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing officer's finding and recommendations concerning all these ballots. Accordingly we sustain the challenge to the ballots of Clifford Sau- cier, Ivan Orrels, Jessie Owen, and Norris Necaise, and overrule the challenges to the ballots of the employees listed on Appendices C and D, and shall direct that their ballots be opened and counted. DIRECTION IT IS HEREBY DIRECTED that the Regional Director for the Fifteenth Region shall, pursuant to the Rules and Regulations of the Board, within ten (10) days from the date of this Direction, open and count the challenged ballots cast by each of the employees listed on Ap- pendices A, B, C, and D, attached hereto, and thereafter shall pre- pare. and serve upon the parties to this. proceeding a supplemental tally of ballots, including therein the count of the said challenged ballots. APPENDIX A W. E. Boone L. N. Breland Wilton Brown R. R. Cameron Ben Clark C. B. Crosby C. T. Dabbs George Davenport H. R. Deane W. P. Dear Van Ebersten Frank Edwards Paul Hale R. H. Hardtner Norman Belton F. E. Blackwell Robert E. Boone, Jr. Boyd Bonds Leo Breland W. W. Breland Floyd Castleberry Harold Carter W. L. Kimbell Edward Ladner Lee Ladner Alvie Lewis John McKay Hubert Miller Russell Necaise A. O'Koon Brag Phelps W. D. Pitts, Jr. Kermit Rouse Hollis Walters J. C. Willis APPENDIX B B. O. Crawford Lewis Daniels Walter Diamond J. T. Dooley James Dykes Grady Forehand Bill Gartman John Hancock,, A,. E. BLACKLIDGEI APPENDIX B-Continued Grover Hendrix J. T. Knight Leroy Dadner Earl Meiser Nolan O'Neal Lynn Orrels Gwen Page Richard Penton Alton Bond J. A. Cross M. J. Cuevas C. E. Gartman Joe Papania Lucas Papania Alfred Poirier Arno Saucier Donald Smitli Lee Thames Robert Trailer D. H. Walters Loyd Dickson W. P. Riggs APPENDIX C W. Penton Ralph Penton George Pierson R. S. Randolph L. A. Raynor APPENDIX D Forest Beasley Floyd Miller, Jr. Jimmie Byrd Clarence Page Robert E. Boone, Sr. H. C. Shaw Elam Dedeaux Robert L. Williams Darrell Ladner Phillip J. Bass 227 ORDER DIRECTING HEARING On June 21 , 1950, an election was conducted in the above-entitled proceeding pursuant to a "Stipulation for Certification Upon Con- sent Election" entered into between the parties hereto, under the- direction and supervision of the Regional Director for the Fifteenth Region. On June 23, 1950, the Regional Director issued his report on challenged ballots, and thereafter, on June 29, 1950, A. E. Black- lidge filed exceptions to the said report, and the Union waived its right to file exceptions thereto. The Board having duly considered the matter, decided that a hearing should be held to resolve the issues raised by the challenges. Accordingly, IT IS HEREBY ORDERED that a hearing be held for the purposes of further investigation of the eligibility of those persons whose ballots were challenged and a determination of the Board agent 's ruling upon the validity of one ballot. 917572-51-vol. 91-16 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the hearing officer designated for the purpose of conducting the hearing shall prepare and cause to be served upon the parties a report resolving questions of credibility and containing findings of fact and recommendations to the Board as to the disposition of the challenges . Within 10 days of receipt of such report, any party may file with the Board in Washington, D. C., an original and six copies of exceptions thereto. Immediately upon the filing of such exceptions , the party filing shall serve a copy thereof upon each of the other parties, and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the hearing officer. IT IS FURTHER ORDERED that the above -entitled matter be, and it hereby is , referred to the said Regional Director for the purposes of such hearing, and that the aforesaid Regional Director be, and he hereby is, authorized to issue early notice thereof. Dated, Washington , D. C., June 29, 1950. By direction of the Board: FRANK M. KLEILER, Executive Secretary. HEARING OFFICER'S REPORT CONTAINING FINDINGS OF FACT AND RECOMMENDATIONS TO THE BOARD John W. Savage, Esq., of Gulfport, Miss., for A. E. Blaeklidge, Individual. Poole, Pearce & Hall, by Warren E. Hall, Jr., Esq., of Atlanta, Ga., for Gen- eral Drivers Local Union 228, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, A. F. L. PRELIMINARY STATEMENT Pursuant to a petition filed by A. E. Blacklidge, an Individual, Gulfport, Mississippi (hereinafter referred to as Blacklidge ), on June 13 , 1950 ( amended June 19, 1950), Blacklidge and General Drivers Local Union No. 228, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, A. F. L. (hereinafter referred to as the Union), entered into a stipula- tion for certification upon consent election on June 15, 1950, with the approval of the Regional Director for the Fifteenth Region. As a result of this stipula- tion an election was held on June 21, 1950, at Gulfport, Mississippi. Of approximately 154 employees eligible in a unit of all truck drivers, the Union received 16 votes, 24 votes were cast against, and 85 ballots were chal- lenged. Forty-eight challenges were brought by the Union, 31 by Blacklidge, and 5 by the Board agent conducting the election. The Board agent conducting the election also ruled one ballot void and observers for both Blacklidge and the Union challenged his ruling. The Fifteenth Regional Director thereafter issued his report on challenged ballots on June 23, 1950. Blacklidge filed exceptions to the Regional Director's report on June 26, 1950. The Regional Director's report had recommended that the National Labor Relations Board order a hearing on these challenged bal- A. K. BLACKLIDGE 229 lots and both parties waived a ruling on any exceptions for the purpose of a hearing. After considering the matter pursuant to the Rules and Regulations, the Board on June 29, 1950, issued its Order, copy of which is attached hereto, directing a hearing and issuance of a report, to be served on the parties. No- tices of hearing were issued and served upon the parties and the undersigned was duly designated as bearing officer by the Regional Director. The hearing was held on July 5, 1950. Both parties were represented by counsel, and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence on the issues was afforded to all parties. The parties were granted until July 15, 1950, to file briefs with the hearing officer in this matter. Briefs have been received from both parties, and have been carefully considered. Upon the entire record the undersigned makes the following findings of fact and recommendations to the Board : Findings I1yan Stevedoring Company, a large concern operating stevedoring services in practically all Gulf ports, has a contract with the United States Government for the unloading, hauling, and storing of bauxite, an essential war material, at Gulfport, Mississippi. The bauxite, used in the manufacture of aluminum, is shipped to Gulfport from points in the East Indies and South America. The ships berth at the public docks in Gulfport where the bauxite ore is unloaded and hauled to a Government storage depot in the Gulfport area. The round trip from the (locks to the storage depot is some 6 miles. Ryan Stevedoring Company, in turn, has contracted with A. E. Blacklidge, an individual resident of Gulfport, to haul the unloaded bauxite from the docks to the storage depot, unload and store it there. The ships carrying the bauxite vary in size from 2,400 tons to 13,000 tons and their arrivals in Gulfport are apparently sporadic. Normally when a shipload of bauxite does dock, there is a need for quite a number of trucks, from 25 or 30 up to over 65, depending upon the size of the ship. Mr. A. E. Blacklidge per- sonally owns only 2 trucks engaged in hauling of bauxite. Thus, in order to carry -out his contract with Ryan Stevedoring Company, he entered into an oral agree- ment with a number of truck owners in and around Gulfport, Mississippi . Most oral agreements have an element of vagueness. This oral agreement is different only as to degree. It is sufficiently vague that in order to objectively evaluate it, necessarily the acts done pursuant to this agreement must be the major consideration. . Blacklidge agreed with the truck owners to pay them 40 cents a ton 3 for all bauxite hauled by their trucks. Each truck owner is obliged to furnish a driver with the truck. ,The truck owners pay the drivers. Before the strike mentioned in footnote 1, below, the drivers were paid-75 cents per hour.and none of the witnesses at the hearing could shed any light on the "who or how" of this wage- setting. The wage subsequent to the strike was set at $1 per hour by agree- I This was the agreed upon amount prior to June 6 , 1950. On that date the Union began a strike. This strike was terminated on June 15, 1950, when the Union and Blacklidge -entered into the stipulation for certification. The parties also entered into an "Interim Settlement Agreement" (Union Exhibit 1-A) in which inter alia Blacklidge agreed to pay his truck drivers $1 per hour and to "recommend and use his best efforts" to have the other truck owners pay a like wage. Blacklidge then agreed with the truck owners to pay 421/2 cents per ton thereafter. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went between Blacklidge and the Union (Union Exhibit 1-A) which agreement was quite clearly binding on the truck owners although they were not signatories to the agreement. The truck owners pay for the gas, oil, and general maintenance expenditures of their trucks. Blacklidge is responsible by his contract with Ryan Stevedoring Company "to see that workmen's compensation insurance is carried on everyone who drives trucks under that contract, and also that $10,000- 20,000 liability" insurance on each truck is carried. Blacklidge carries both workmen's compensation insurance and the liability insurance. as his own account and then deducts each truck owner's portion from the payment made to the truck owners under the tonnage agreement, with the exception of a few truck owners who carry their own insurance. Gulfport is a town of some 15,000 population. Its business and residential district lies along the shores of the Gulf of Mexico and from its business district the dock area which juts out into the Gulf may be seen. Ships arriving at the docks become a matter of general knowledge to those interested in a few minutes. Sometimes Blacklidge knows far enough in advance of a ship's arrival to post a list of drivers at his son's gasoline station. On other occasions the truck owners simply know there is a ship arriving and notify the drivers to go down to the-docks. Once the driver pulls his truck into line at the dock area he is from then on under the control of Blacklidge and his dock supervisors. Blacklidge or his foremen supervise the "shaping up" of trucks, flag them to the hoppers unload- ing the bauxite from the ship, watch over the loading of the trucks, notify the driver when he has a full load, and keep a tally on the load. The drivers are instructed as to the route from the (lock to the storage depot that must be fol- lowed. This route was set up by' the Chief of Police of Gulfport and A. E. Blacklidge., Blacklidge's supervisors have authority to "knock off" any truck violating any of Blacklidge's rules or deviating from the route as well as deciding which trucks shall be used. The record discloses that this authority is used. All trucks are numbered by Blacklidge's direction and have no other markings such as telephone numbers, names, etc. Truck owners driving one of their trucks are apparently treated with it in the same manner as the other drivers as to Blacklidge's right of control while they drive. Although the truck drivers' principal hauling is of bauxite, some of them haul dirt occasionally for other people than Blacklidge while no shiploads of bauxite are in port. The facts stated above have been gleaned from the record as a whole. The undersigned finds no material conflict in the record as to facts. This matter turns not upon facts, upon which the parties substantially agree, but upon the issue of the relationship of Blacklidge to the truck drivers of other truck owners, the relationship of truck owners to the drivers, and the relationship of Blacklidge• to those truck owners who drive, based upon the facts related above. The first issue to be disposed of is the relationship of Blacklidge and the. truck owners who drive and obtain others to drive their trucks. Those mnen- tioned in the report on challenged ballots who come under this category are W. E. Boome W. P. Dear John McKay L. N. Breland Van Ebersten Hubert Miller Wilton Brown Frank Edwards Russell Necaise R. R. Cameron Paul Hale A. O'Koon Ben Clark it. H. Ilardtner Brax Phelps C. B. Crosby W. L. Kimbell W. D. Pitts, Jr. C. T. Dabbs Edward Ladner Kermit Rouse George Davenport Lee Ladner Hollis Walters H. it. Deane Alvie Lewis J. C. Willis A. F. B'LACKLIDGEI 231 Are these men independent contractors or do they bear some other relation- ship to Blacklidge? The undersigned finds they are not independent contractors, -contrary to the Union's original contention. The term "employee" is defined by the Act in negative form as much as it is affirmatively. One of the negative provisions is that the term "shall not include any individual . . having the status of an independent contractor. . . ." However, an "independent con- tractor" is not defined by the Act. The difference between an "independent contractor" and an "employee" has long been a troublous nettle to the judiciary. There are multitudes of employer-employee relationship situations that are ineluctably clear and the decision is simple as to whether the person is an "employee" or an "independent contractor." There are a few situations, how- ever, because of our quite complex economic society, that confront us with varying shadings between the two categories. This circumstance was recognized and discussed in N. L. R. B. v. Hearst Publications, 322 U. S. 111. The instant case, while not having similar facts, does have similar problems. The Board, though generally recognizing common law principles of agency in deciding issues concerning this sort of relationship, has never felt itself bound narrowly and on occasion applies tests not contradictory to the,common law but varying due to .a broader application. See N. L. R. B. v. Blount, 131 F. 2d 585. The tests applied by the Board and the courts are many. The necessity for discussing these tests is obviated on the issue here by the facts. The right of control is always the essential factor-the sine qua non-in deciding whether -or not the person or persons in question is or is not an "independent contractor." Here, Blacklidge unarguably has the full right of control, of all drivers hauling bauxite from the Gulfport dock area to the storage depot, while they are in the dock area as well as on the route. As was stated in N. L. R. B. v. Steinberg ue Co., 182F. 2d 850 (C. A. 5). It is generally stated in the authorities that the distinction between an independent contractor and an employee is found in the nature and the .amount of control reserved by the person for whom the work is done. And that in employment relationship exists "whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished," or, in other words, "not only what shall be done, but how it shall be done." Applying that language to this case, I find that the "what" and the "how" :are invested in Blacklidge and the truck owners therefore are not independent contractors. What, then, is the position of these truck owners who drive and hire other drivers? Counsel for Blacklidge contends that they are employees. Counsel for the Union contends that if not independent contractors, they are supervisory employees or agents. Counsel for Blacklidge cites N. L. R. B. v. Blount, supra, and Murphy Timber Company, 37 NLRB 487, as authorities for his contention. In the Blount case, the Respondents were a group of landowners in Missouri, represented by R. A. Blount, who engaged miners to extract a mineral substance known as barite from the land and haulers to transport the mineral to points of sale. Respondents claimed the miners were- independent contractors and that the haulers were employees of the miners and not Respondent. The Board found that both the miners and the haulers were employees of Respondent. The distinction between the Blount case and the one at hand is that the miners in the Blount case did nothing but extract the mineral. Here, the truck owners not only drive, but they obtain other drivers and supply other trucks besides the one they drive. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD They apparently share the responsibility with Blacklidge of seeing that 'the- trucks are properly insured. They keep track of the drivers ' hours on their other trucks and act in the nature of paymasters . Due to these factual distinc- tions, the undersigned does not consider the Blount case dispositive of the issue. Murphy Timber Company, supra , had facts fairly similar to those here in- volved and might have been a very persuasive case but for one thing: The Board. felt that the record was not sufficiently clear to permit a determination of the status of truck owners who owned more than one truck and drivers who drove for those truck owners. Thus, the Board , only decided that all truck drivers, driving their own truck and having no other trucks should be included in the unit. This decision , of course, is also not dispositive of the issue. Of the cases cited in the brief of counsel for the Union , only Gilchrist Timber Company, 73 NLRB 1197, is close enough to the problem before me to require discussion . The employer in the Gilchrist case engaged in the production of lumber. The operation consisted of a typical assembly -line method in the lumber industry . Midway of this assembly-line operation, after the timber had been through the edger and the trimmer, it went to the green chain and then to the dry kiln. The employer entered into an agreement with one Jorgensen, a former employee, to perform all the work on the green chain and dry chain. This work was to be performed for a compensation fixed by the agreement . Jorgensen had. the right to hire and fire his employees , he kept books on them, and paid them.. However, Jorgensen received his orders and instructions from the employer's general manager , the employer's plant regulations had to be followed by Jor- gensen's crew, the wage increases given to employer 's men were likewise granted to Jorgensen's crew, and employer's employees were frequently interchanged with Jorgensen 's. On these facts the Board concluded that Jorgensen was a supervisory employee, and that his employees were actually the employer's employees . Once again , as in the Blount case, the facts are not sufficiently analogous to make the decision persuasive . The interchange of employees, the maintenance and expense of the machinery being the responsibility of the em- ployer, the property ownership being in the employer , all, I feel sure , inclined the Board to reject an independent contractor theory and find Jorgensen to be a supervisory employee . There are several indicia, though , that are valuable to this case : The integration of operations , the right of control in the employer, the employment dependency on the employer , the reflection of wage increases to employer's acknowledged employees in the wages of the ostensible employees of Jorgensen. Another case germane to the issue is that of Wade & Paxton , 89 NLRB 829. The employer there was engaged in grading, cleaning , and packing fresh vege- tables. During the tomato season the employer entered into an agreement with an individual, known as the tomato-crate chief, regarding the making of tomato crates. The tomato-crate chief was paid on the basis of a certain amount per crate. He in turn hired, paid , and could fire, the five or six workers making the crates. The employer's foreman gave the tomato-crate chief instructions on amounts of work to be done, and directed the attention of the tomato-crate chief to anything going wrong on the operation . The Board found the tomato- crate chief to be a supervisory employee rather than an independent contractor because of the close integration of the functions of the tomato -crate makers with those of the employer's acknowledged employees , the use by the tomato- crate chief of the employer's materials and premises , and the employer 's control over the tomato-crate operations. But even this Wade & Paxton case has several factual differences from the one before us, which is what lends the quality of novelty to the instant case. A. -El. BLACKLIDGE, 233 It has undoubtedly become apparent from the discussion that has gone before that the undersigned is of the opinion that these truck owners who drive and obtain others to drive are something more than employees, or even supervisory employees. They cannot be pigeon-holed into any one status . . . they are neither flora nor fauna, fish nor fowl, cabbages nor kings. They appear to me to be a heterogeneous entity consisting of part agent, part coventurer, and part supervisor. Let me illustrate : As agents, these truck owners procure drivers for trucks hauling bauxite for Blacklidge. This is in keeping with the generally accepted duty of an agent. 2 Corpus Juris Sec. 1. The truck owners also share in the responsibility with Blacklidge of seeing that all trucks hauling bauxite are properly insured. As coventurers, these truck owners apparently have a certain community of interest with Blacklidge as shown by the fact that Blacklidge acted as their spokesman in dealing with the Union on an agreement to terminate the strike of June 6. A thorough reading of this agreement (Union Exhibit 1-A) leads to no other conclusion than that Blacklidge was making decisions-important de- cisions-in behalf of the other truck owners, as well as himself. It is also true that the wage of $1 per hour subsequent to the strike for all truck drivers was set through the associated efforts of Blacklidge and the other truck owners acting together. As supervisors, these truck owners obtain drivers to haul the bauxite, they have the right to discharge truck drivers (although in the main discharges occur through Blacklidge's foremen on the docks "knocking off" the trucks), they pay the drivers, and notify the drivers to report to, the dock when a ship arrives. The truck owners fit into the pattern of supervision as set forth in Gilchrist Timber Go., supra. Without attempting, therefore, to categorize these truck owners as supervisors, or agents, or coventurers, I find that, having important elements of each of these statuses, they are an identifiable group having a community of interest more closely related to Blacklidge than to the truck driver-nonowners and in keeping with the principles of the Act should not be allowed to vote. Left for resolution is the problem of the status of the truck drivers who drive trucks owned by others than themselves. In this category fall the follow- ing named 32 persons, listed in the Regional Director's report on challenged ballots : Norman Belton F. E. Blackwell Robert E. Boone, Boyd Bonds Leo Breland W. W. Breland Floyd Castleberry Harold Carter B. O. Crawford Lewis Daniels Walter Diamond J. T. Dooley Gwen Page James Dykes Richard Penton . Grady Forehand Alfred Poirier Bill Gartman Arno Saucier John Hancock Donald Smith Grover Hendrix Lee Thames J. T. Knight Robert Trailer Leroy Ladner D. H. Walters Earl Meiser Loyd Dickson z Nolan O'Neal W. P. Riggs : Lynn Orrels Jr. 2 Loyd Dickson and W. P. Riggs were named in the Regional Director's report as being among the group of truck owners. Testimony was forthcoming at the hearing that Dick- son and Riggs were actually drivers for one W. H. Scruggs . Board Exhibit 2, actually proffered by counsel for Blacklidge, documents this fact. From Board Exhibit 2 and the record, particularly testimony of A. E. Blacklidge, I find that Dickson and Riggs were drivers and not truck owners, as set forth in the Regional Director 's report. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The status of these truck drivers is not so complex as was that of the truck owners. The right of hire is in the truck owners, but the right of discharge is in Blacklidge. They take all their directions from Blacklidge or his supervisors who exercise complete control over these drivers. The only confusion is that Blacklidge does not directly pay their wage to them (although he takes the major role in setting that wage) and even this wage question is not completely novel. We have already discussed a similar situation in the Gilchrist and Wade d Paxton cases. I find that these truck drivers are actually Blacklidge's employees. I rely principally on Blacklidge's right of control, his right to discipline, his right to discharge (through "knocking off" their truck), and the status of the truck owners whose trucks they drive. An employee relationship exists within the Act where the person for whom the services are performed reserves the right to control the manner and means by which the result is accomplished. See San Marcos Telephone Company, 81 NLRB 314. The two classifications above discussed are the main groups involved. The questions of challenges of the remaining persons mentioned in the Regional Director's report were answered principally by stipulations between the parties during the hearing, or by clear-cut, uncontroverted evidence, as follows : The Union claimed the following eight persons did not work during the eligr bility period : Forest Beasley Darrell Ladner H. C. Shaw Jimmie Byrd Floyd Miller, Jr. Robert L. Williams Elam Dedeaux Clarence Page During the hearing the Union offered to stipulate, and Blacklidge agreed, that Elam Dedeaux, H. C. Shaw, and Robert L. Williams had worked during the eligibility period. Blacklidge showed through evidence that Forest Beasley, Jimmie Byrd, Darrell Ladner, Floyd Miller, Jr., and Clarence Page worked during the eligibility period, May 1-June 6, 19 50. These men, the record shows, are all truck drivers and come within the same classification as the latter of the two main groups discussed heretofore. I find, therefore, that the eight men named in the paragraph above are truck drivers who worked during the eligibility period and being in the same class with the truck drivers discussed at length above should be declared eligible to vote. Going to the next incidental grouping, the Petitioner (Blacklidge) claimed that Clifford Saucier was discharged prior to the eligibility period. At the bearing, Blacklidge and the Union stipulated that Saucier was actually dis- charged during the eligibility period. I therefore find that Saucier was no longer an eniployeee at the time of the election and his vote should be declared invalid. The Board agent challenged the following five persons for the reasons that their names did not appear on the eligibility list: Phillip J. Bass, Ivan Orrels Norris Necaise Robert E. Boone, Sr. Jessie Owen Of these, it was stipulated by the parties that Ivan Orrels, Jessie Owen, and Norris Necaise were properly challenged by the Board agent for the reason that their names did not appear on the eligibility list. I therefore find that their votes should be declared invalid and not counted. It was further stipulated by the parties that a typographical error was involved as to Robert E. Boone, Sr., in that the eligibility list merely named him as Robert Boone, and that he should have been allowed to vote without challenge. I therefore find that Robert E. A. B. BLACKLIDGE 235. Boone, Sr., from the record as a whole, was a truck driver in the same classifi- cation as the other truck drivers discussed secondly among the two major groups above and should have.been allowed to vote without challenge and his vote should be and is ruled valid. Counsel for Blacklidge contended that Phillip J. Bass was omitted from the eligibility list strictly as a stenographic error and that since he actually worked. during the eligibility period, his vote should be ruled valid. The Union took .the position that regardless of the reason, Bass' name did not appear on the eligibility list and he should not be included. Testimony was adduced during the hearing which showed conclusively that Bass did work during the eligibility period and I therefore reject the Union's contention and rule that his vote should be counted, his status being that of the other truck driver nonowners. This leaves only 11 persons to contend with. The Union included among the truck owners they challenged as independent contractors or supervisory employees 11 truck owners who drive their trucks, have no other trucks, and procure no other drivers. These 11 are : Alton Bond Joe Papania George Pierson J. A. Cross Lucas Papania R. S. Randolph N. J. Cuevas W. Penton L. A. Raynor C. E. Gartman Ralph Penton During the hearing the Union moved to withdraw challenges as to these 11 on the grounds that they hired no drivers , furnished no trucks but the one they drive, and should be considered employees of Blacklidge . Blacklidge's counsel did not oppose this motion . I find, in keeping with the Union's with - drawal, that the above 11 persons are employees of Blacklidge within the meaning of the Act. See N. L. R. B. v. Blount, supra, and the cases cited therein at pages. 589 and 590, and Nit-Car Carriers , Inc., 88 NLRB 75 . Their votes should there- fore be ruled valid and I so find. One ballot was challenged by the Board agent as being void. A facsimile- of this ballot is a part of the official exhibits. This ballot was marked with a cross in the "Yes" square and a circle in the "No" square. The parties stipu- lated with the hearing officer that this ballot should be ruled void and I so find on the basis of its ambiguity . This principle has been affirmed many times. by the Board. Recommendations I recommend on the basis of the foregoing discussion persons' votes be ruled valid : that only the following: Norman Belton James Dykes Nolan O'Neal F. E. Blackwell Grady Forehand Lynn Orrels Robert E. Boone, Jr. Alton Bond Gwen Page Boyd Bonds C. E. Gartman Richard Penton Leo Breland W. Penton Alfred Poirier W. W. Breland R. S. Randolph Arno Saucier Floyd Castleberry Bill Gartman Donald Smith Harold Carter John Hancock Robert E. Boone, Sr.. B. O. Crawford Grover Hendrix J. A. Cross Lewis Daniels J. T. Knight Joe Papania Walter Diamond Leroy Ladner Ralph Penton J. T. Dooley Earl M.eiser L. A. Raynor 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Leo Thames Jimmie Byrd Robert L. Williams Robert Trailer Elam Dedeaux Phillip J. Bass D. H. Walters Darrell Ladner N. J. Cuevas Loyd Dickson Floyd Miller, Jr. Lucas Papania W. P. Riggs Clarence Page George Pierson Forest Beasley H. C. Shaw I recommend that the challenges to the ballots of all other persons named in the Regional Director's report be sustained and those ballots be considered null and void, based on the foregoing discussions! Dated at New Orleans, Louisiana, this 24th day of July 1950. ANDREW P. CARTER, Hearing O,cer. 9 Pursuant to the Order of the Board dated at Washington, D. C., June 29, 1950, in this matter (copy of which is attached hereto) within ten (10) days of the receipt of this report any party hereto may file with the Board in Washington, D. C., an original and six copies of exceptions hereto and shall serve a copy upon the other parties. Proof of service shall be made in accordance with Section 203.85 of the Rules and. Regulations. Your attention is directed to Section 203.86 of the same Rules. Your attention is also directed to Section 203.60 and 203.61.