Vaughn Brothers

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of false union propaganda, the record contains no evidence support- ing the assertion. Indeed, Arthur Herzog, the Employer's vice presi- dent, testified that this defense rests on a leaflet (received in evidence) distributed by the Petitioner during its organizational campaign. The leaflet mentioned certain raises granted by the Employer to its office and clerical employees, excluded from the voting group, and the in- creases which the Petitioner intended to demand for the production and maintenance employees if it won the election. It added that wage increases not covered by collective bargaining contracts could be with- drawn by an employer. The leaflet does not otherwise speak of wage increases. Accordingly, we find, as did the hearing officer, that the Employer's conduct in promising wage increases on the eve of the election im- properly affected the results of the election .5 We therefore adopt the hearing officer's recommendation, and shall set aside the election. We will direct a new election at such time as the Regional Director ad- vises the Board that the' circumstances permit a free choice among the employees herein concerned. Order IT IS HEREBY ORDERED that the election held on October 3, 1950, among the employees of Direct Laboratories, Inc., Buffalo, New York, be, and it hereby is, set aside. s In view of this finding, we deem it unnecessary to pass upon the other allegation made by the Petitioner in support of its objections. WALTER J. AND JOSEPH VAUGHN, D/B/A VAUGHN BROTHERS ; SAM J. MILLER ; J. G. CAGLE ; R. L. GRANGER; O. M. GRANGER ; AND N. H. CAGLE and INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, PETITIONER . Cases Nos. 15-RC-141, 122, 424, 425, 445, and 465. May 10, 1951 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Charles A. Kyle, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. 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 [Chairman Herzog and Members Reynolds and Murdock]. 94 NLRB No. 64. VAUGHN BROTHERS 383 Upon the entire record in this case, the Board finds : 1. Each of the Employers is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to represent certain employees of the Employers. 3. Questions affecting commerce exist concerning the representa- tion of employees of the Employers within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. All six Employers are engaged in the business of clearing tree stumps from strips of land in the vicinity of De Ridder, Louisiana, and hauling the stumps to the De Ridder plant of Crosby Chemicals, Inc. The stumps are used in the manufacture of turpentine and allied products. The Employers operate under separate contracts with Crosby, the terms of which provide that the Employers furnish all labor, equipment, and materials necessary for carrying out the agree- ments. Bulldozers are used to dislodge the stumps from the ground, explosive charges to break up the stumps, and trucks to haul them. The labor required includes bulldozer operators, shooters, and truck drivers. Each Employer generally uses one or two of its own trucks in these operations. For the most part, however, the Employers engage truck owners who drive their own trucks. The Petitioner seeks to represent in separate single employer units the bulldozer operators, shooters, and truck drivers employed by each Employer., The Employers agree that single-employer units are appropriate. However, they would exclude from each unit the truck owners driving their own trucks on the ground that they are inde- pendent contractors and hence not employees within the meaning of the Act.' The Employers would also exclude the shooters who work with these alleged independent contractors on the ground that they are employees of the latter and not of the Employers. A dispositive criterion used by the Board to determine whether an employment relationship or an independent contractor status exists is the common law "right of control" test.' Under this test an em- ployment relationship exists where the person for whom the services are performed reserves the right, even though not exercised, to con- trol the manner and means by which the result is accomplished. In this case the record discloses that during the time the truck owners are on the strips of land, the Employers retain the right to control the work of the truck owners and, moreover, that they effec- tively exercise that right. The truck owners report daily to the strips where clearing operations are under the supervision of the Employers' ' Section 2 ( 3) of the Act provides that "the term `employee' . . . shall not include .. . any individual having the status of an independent contractor." s Del Rio & Winter Garden Telephone Company, 85 NLRB 199, and cases cited. • s Singer Manufacturing Co. v. Rahn, 132 U. S. 518 ( 1889). 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bulldozer operators. These bulldozer operators, who are in some instances the Employers themselves, pile up the stumps and assign the truck owners to the piles of stumps they are to haul. After the shooters break up the stumps with explosive charges, the truck owners together with the shooters load the trucks. The truck owners then haul the stumps to the Crosby plant. In the performance of this work, the truck owners are required to observe normal safety pre- cautions, and for failing to do so their relationship with the Employer has, in some instances, been terminated. Moreover, the shooters, whom the Employers contend are employees of the truck owners, may be and have been discharged either by or at the request of the Em- ployers for not properly performing their work. In these respects, the record makes it clear that while the truck owners are on the strips, they are subject to the same working conditions as are the regular drivers hired by the Employers. It is equally clear that the Employ- ers, through the bulldozer operators, control all aspects of this work. Thus, with respect to operations on the strips, the evidence points to an employment relationship between the Employers and the truck owners. Facets of the over-all relationship between the truck owners and the Employers point to the same conclusion as does the foregoing evidence. The Employers carry liability insurance policies which cover their entire operations including the hauling done by the truck owners. The truck owners are engaged on a terminable-at-will basis. Although many of the truck owners have worked for prolonged periods for the same Employer, there is no evidence in the record that during such times these truck owners have been gainfully employed elsewhere, except, in some instances, to attend' to their own farms. The truck owners are paid on a tonnage basis, but the work is such that industry and initiative contribute little toward varying their incomes. The method of payment used by the Employers when these peti- tions were filed further indicates that the truck owners are not inde- pendent contractors. At that time, the truck owners were paid weekly in the same fashion as shooters and the Employers' own employees, with the Employers in all instances making necessary income and social security tax deductions. We find no merit to the contention that a change in this method of payment, instituted in September 1950, after the petitions were filed, establishes an independent con- tractor status. Under the change, the truck owners allegedly pay the shooters who work with them. Hence, instead of direct payments to the truck owners and shooters, each Employer now deposits in a. payroll account administered by its bookkeeper the money due the truck owners and't'he amounts allegedly due the shooters by the truck owners. Then, ostensibly acting as the individual truck owner's agent, VAUGHN BROTHERS 385 the bookkeeper, by checks signed by him, pays the shooter and the truck owner, making social security and income tax deductions from the shooter's pay, but only a "bookkeeping services" deduction from the amount due the owner. Although some truck owners were consulted about the Septem- ber 1950 change in the method of pay, others were not and have never authorized a bookkeeper to act as their agent. But whether or not the truck owners were consulted about the change, presently they have no more control over the amount paid to, or the method of payment of, the shooters than they had before the September change when the Employers paid the shooters directly. Thus, despite the change, two things are clear. First, the truck owners do not in fact pay the shooters ,4 and second, there appears to be no real difference between the current method of payment of the truck owners and that employed before the September 1950 change. Accordingly, despite the ownership and maintenance of trucks by the individuals in question,' we are of the opinion that the fore- going factors established the existence of an employment relationship between the Employers and the truck owners.6 And we so find. The Employers, however, contend that, even if the truck owners are not independent contractors, they are supervisors and as such should be excluded from the units. When the Employers hire the truck owners, the latter are required to bring one or two shooters on the job. As stated above, the shooters work on the piles of stumps which their respective truck owners are to haul, breaking up the stumps- with explosive charges, and helping load the stumps into trucks. The shooters perform all their work on the strips, not accompanying the truck owners when the latter haul the stumps for delivery. At all times, the shooters are under the supervision of the bulldozer opera- tors, even during the presence of the truck owners on the strips. Under these circumstances, we find that the truck owners are not supervisors, the relationship between themselves and the shooters at best being akin to that existing between craftsmen and their helpers.' We find that the following employees of each of these Employers : Walter J. and Joseph Vaughn, d/b/a Vaughn Brothers; Sam J. Miller; J. G. Cagle; R. L. Granger; O. M. Granger; and N. H. Cagle, employed at their respective places of business in and around De Rid- 4 Even assuming that the truck owners did pay the shooters , this fact would not pre- clude the existence of an employer -employee relationship between the Employeis and the Shooters (A E Blacklidge, An Individual, 91 NLRB 222 ) ° The incidence of truck ownership is not conclusive of an independent contractor status. See Pehastin Lumber and Box Company, 90 NLRB No . 226; Flint Oil Company, 88 NLRB 634 ° See A E. Blacklidge, An Indtioidual, supra, and cases cited ; Pehastin Lumber and Box Company, supra; Jerry Aarts Logging Company, 69 NLRB 1371 ° See Atlanta Coca-Cola Bottling Company, 83 NLRB 187 ; Del Rio & Winter Garden Telephone Company, 85 NLRB 199, 202-203. 953841-52-vol 94-26 .386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD der, Louisiana, constitute separate units appropriate for the purposes of collective bargaining within the meaning of the Act : All truck drivers including truck owners, and shooters including truck driver helpers," but excluding bulldozer operators E and all other supervisors as defined in the Act. 5. The record indicates that employment among the Employers' employees is relatively stable. We therefore find no merit to the contention that a substitute payroll period be used to determine eligi- bility to vote in elections hereinafter directed. Accordingly, we shall use the Board's usual payroll eligibility period. [Text of Direction of Elections omitted from publication in this volume.] 8 Reference is made in the record to "truck driver helper." It is not clear, however, whether such a classification independently exists or whether the terminology used is synonomous with the employee classification "shooter." Accordingly, both classifications are included in the unit. 9 It is abundantly clear from the record that the bulldozer operators are supervisors within the meaning of the Act. FLORIDA JAFRA STEEL CO., MIAMI JAFRA CORPORATION, AND JAFRA INCORPORATED and SHOPMEN'S LOCAL No. 698, INTERNATIONAL Asso- CIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, AFL, PETITIONER. Case No. 10-RC-1057.: May 10, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clarence D. Musser, 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 this case, the Board finds : 1. The three corporations involved in this proceeding are each engaged in a different phase of the steel business. Florida Jafra Steel Co., herein called Florida, manufactures structural steel; Miami Jafra Corporation, herein called Miami, manufactures steel bars and joists; and Jafra Incorporated, herein called Jafra, sells the products of both Florida and Miami. Jafra also sells and erects steel fence manu- factured by other companies. Miami and Jafra each rent space in a so-called "compound" in Miami, Florida. Florida also rents space in the compound, although at the time of the hearing it was engaged in moving its operations to a newly acquired plant in Ojus, Florida, 12 miles from the city of Miami. The officers of all three corporations are the same four indi- viduals. Each corporation employs a separate plant manager and a 94 NLRB No. 70.