J. F. Miller Timber Co.

J. F. MILLER TIMBER CO. Allied Paper, Incorporated d/b/a J. F. Miller Timber Co., Inc.; Jones and Arnott, Inc.; L. J. Wilson, an Individual, d/b/a L. J. Wilson Timber Company; Overstreet and McCorquodale, Inc.; B. W. Wilson; Hob Lucas Timber Dealer, Inc.; H. D. Paul, Inc.; Finch Farms; James Clolinger, an Individual, d/b/a Clolinger Timber Company; Nuss Timber Company, Inc.; Griffin Wood Company, Inc.; Neal Hamilton, d/b/a Hamilton Timber Company; Hutchinson, Inc.; Claude Swift, d/b/a Swift Tim- ber Company; Scotch Lumber Company, Inc.; and Frisco Pulpwood and Timber Company, Inc., Employer 2 and UBC, Southern Council of Indus- trial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner. Case 15-RC-5991 January 20, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a petition 3 duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Lee J. Romero, Jr. Pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, amended, by direction of the Regional Director for Region 15, this case was transferred to the Board for decision. 4 Thereafter, the Petitioner and companies listed in the caption filed briefs and supplemental briefs. Allied also filed a brief and a response to the Petitioner's supplemental brief.5 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. On the entire record in this case,6 the Board finds: I. Allied concedes, and we find, that it is engaged in commerce within the meaning of the Act and that it meets the Board's jurisdictional standards. President Don Arnott, Jr., testified that the name of this company has been changed to Arnott Timber Co. 2 This title reflects the Petitioner's allegation but not the ultimate finding herein. 3 The petition was amended at the hearing. 4 Sec. 102.67 gives the Regional Director authority to order such a transfer when in his judgment "the proceeding raises questions which should be decided by the Board." Accordingly, we affirm the Hearing Officer's denial of the motion of Allied and companies listed in the caption to refer the case back to the Regional Director for "issuance of a Decision or other appropriate action." 5 In addition, Allied filed a request for oral argument which is hereby denied as the record and briefs adequately present the issues and positions of the parties. 234 NLRB No. 43 2. The Petitioner and the United Paperworkers International Union, AFL-CIO,7 are labor organiza- tions within the meaning of the Act as they wish to represent the wood crews involved herein for the purpose of collective bargaining. 3. No question affecting commerce exists con- cerning the representation of the wood crews within the meaning of Sections 9(cX)(1) and 2(6) and (7) of the Act. Allied, a corporation with its principal offices in Kalamazoo, Michigan, operates through its southern division a mill in Jackson, Alabama, where it is engaged in the manufacture of bleached woodpulp, fine writing paper, and related products. The 310 to 325 production and maintenance employees at the mill and the adjoining woodyard8 are represented by the Papermakers which was certified by the Board in 1964. Allied purchases its supply of pulpwood from 16 wood dealers or wood suppliers, herein called deal- ers,9 which in turn generally contract with a number of loggers or logging contractors, who are also known as producers, for the harvesting of timber in south- west Alabama and southeast Mississippi by crews which vary in size from the producer alone to eight men. The Petitioner seeks a unit of the various wood crews and contends that Allied is their Employer.1 0 However, the Petitioner does not desire an election if the Board finds that the crews of the producers are employees of the dealers and that the latter are independent contractors, employers, or joint employ- ers with Allied, rather than agents, servants, supervi- sors, or alter egos of Allied." Allied and the dealers take the position that the petition should be dis- missed on the ground that the dealers and producers are independent contractors, no employment rela- tionship exists except between the producers and their crews, and the unit sought is inappropriate. The 16 dealers were selected by Allied on the basis of their financial stability and reliability. About 97 percent of Allied's pulpwood supply comes from timber on dealer-owned tracts or is purchased from 6 In the absence of any objection thereto, we hereby grant Allied's motion to correct a number of errors in the transcript of the hearing. I As the Paperworkers was permitted to participate herein on the basis of its administrative showing of interest, we find no merit in the Petitioner's opposition to its intervention. 8 Allied also has a woodyard at Frisco City, Alabama, and a debarking and chipping operation in Catherine, Alabama. 9 The dealers are listed in the caption. 'o The Petitioner does not include in its proposed unit crews who are directly employed by dealers, such as Hutchinson. Inc., Nuss Timber Company, and Griffin Wood Company, rather than by one of the producers. " The Intervenor agrees with the Petitioner's proposed unit. 325 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other landowners by dealers directly or through producers.12 The remaining 3 percent of Allied's pulpwood supply is cut from tracts owned or controlled by Allied.13 The dealers have oral agreements with Allied to provide it with'wood at prices which vary according to the species involved and the distance from the tract or place of origin to the point of delivery.' 4 Allied regulates its inventory flow by issuing written weekly orders to individual dealers which specify the amount of wood to be brought to Allied.15 Although the dealers generally fill Allied's orders, they are under no obligation to do so. If a dealer does not provide the wood, Allied would then endeavor to secure it from other sources. Allied exercises no control over the manner in which the wood order is filled, the price paid by dealers for the timber, or the dealer's decision as to whether to subcontract the order to other dealers. Allied and the dealers are separate business enti- ties, have no common ownership or facilities, and do not share offices or administrative functions.I6 There is no interchange or transfer of employees between Allied and the dealers. Allied restricts its benefits to the employees in its mill and woodyard and does not participate in the labor relations and personnel policies of the dealers. As indicated above, the dealers provide Allied with wood most of which is obtained from their own tracts, other paper companies, or directly or indirect- ly' 7 from various landowners. In this connection, Allied may notify dealers regarding the availability of timber on certain tracts but the decision as to whether to make the purchase rests with the dealers. Allied also has on its staff three foresters who, upon the infrequent request of a dealer, will "cruise," i.e., 12 Thus, for example, Clolinger Timber Company, Finch Farms, and Hob Lucas Timber Dealer, Inc., provide some or all of the timber from their own tracts; J. F. Miller Timber Co. buys 80 percent of its pulpwood supply from such companies as International Paper Company, St. Regis Paper Company, and Masonite Corporation; and Arnott Timber Company obtains a large percentage of its timber from producers who make their purchases from landowners. 13 In addition, Allied purchases for processing at its Jackson mill residue chips from a number of sawmills only one of which is owned by a dealer, Scotch Lumber Company, that also supplies Allied with pulpwood. 14 However, in the case of timber on tracts owned or controlled by Allied, the latter enters into written service contracts with the dealers for the harvesting of such timber. is Some dealers also supply wood to other companies and do not require Allied's permission to do so. For example, Overstreet and McCorquodale, Inc., provides Allied with one-third of its needs but sells larger amounts of wood to other companies, and Swift Timber Co. sells less than 2-1/2 percent of its wood to Allied. ts Allied does not permit the dealers to display its insignia or logo. 17 Some of the producers also deliver logs to such companies as St. Regis Paper Company and Masonite Corp. 18 Allied's woodlands manager, Fred Wooten, testified that only in the case of tracts owned or controlled by Allied, do its foresters also "mark," i.e., designate, the specific trees to be felled and make inspections during evaluate, the timber prior to possible purchase by the dealer.18 Allied makes secured interest-free loans to some dealers for the purchase of standing timber which is referred to in the industry as stumpage. Allied also made secured interest-free equipment loans to deal- ers but discontinued this practice about 3 years ago.' 9 In this connection, Allied Vice President Ralph Zepp testified that the dealers are not obligat- ed by virtue of their indebtedness to refrain from supplying other paper companies with timber. Allied does not usually provide dealers with me- chanical or maintenance service but, according to the testimony of Bonnie Ray Overstreet, an official of Overstreet and McCorquodale, "probably" permits the use of its bulldozer for repairing or grading roads on tracts other than those owned by Allied. How- ever, officials of Hob Lucas Timber Dealer and Hamilton Timber Company testified they never had occasion to call on Allied for the use of its bulldozer. As already noted, the dealers contract with one of the producers with whom they usually do business 20 to harvest the wood on a particular tract at an agreed-upon price. The crewmembers whom the Petitioner seeks to represent are hired, supervised, and paid by the producers who provide them with workmen's com- pensation and liability insurance,21 issue W-2 forms, file state tax returns, and withhold social security and income taxes. Neither Allied nor the dealers furnish benefits for the producers' crews and have no voice in their selection, retention, direction, supervision, or wages except when dealers employ their own crews.2 2 The producers possess varying amounts of equip- ment such as chain saws, tractors, loaders and trucks23 which in some cases were financed by loans from dealers, banks, or other lending institutions. 2 4 and after the cutting. However, officials of J. F. Miller Timber Co. and Overstreet and McCorquodale testified that they "sometimes" request Allied foresters to "mark" timber purchased by their companies. VI One such loan to Arnott Timber Co. was paid off in July 1976. Overstreet and McCorquodale, which borrowed S40,000, had an outstand- ing balance of $14,800 as of November 1976. 20 The number of producers used by each dealer varies considerable. Thus, Overstreet and McCorquodale contracts with 8 to 12 producers, one of which is a partnership consisting of Bonnie Ray Overstreet and a cousin. In contrast, Clolinger Timber Company and Finch Farms, whose primary business is livestock and farming, each rely on one producer. 21 In some cases, dealers give certain producers, who agree to pay the premiums, the option of coverage under the dealers' policies. 22 However, the dealers must warrant to Allied that the provisions of the Fair Labor Standards Act have been complied with in the cutting of the timber. 23 The equipment of producers such as Alvin Fore had an initial cost of more than $100,000. 24 However, Overstreet and McCorquodale leased equipment to two of its producers, one of whom-Bernie Whiteside Frowner-was instructed by that dealer to use certain crewmembers as operators of that equipment. Frowner testified that Bonnie Ray Overstreet directed the work. Frowner also testified that when he did cutting on two tracts whose timber was 326 J. F. MILLER TIMBER CO. The harvesting operation is performed by such crewmembers as cutters or saw hands who fell, limb, and top trees, tractor drivers who skid or pull the timber across the ground to a loading ramp, and chain saw operators who cut the logs up into bolts or appropriate lengths for placement on the truck which is equipped with a big stick loader.2 5 If the load is intended for Allied pursuant to a wood order, it is either shipped directly to Allied's yard or to that of the dealer from which it is rehauled to Allied. Upon delivery to the Jackson yard, the wood is weighed by an Allied employee known as a scaler and the dealer is subsequently paid therefor by Allied.2 6 As indicated above, the Petitioner contends that the producers' crews it seeks to represent are employ- ees of Allied or of the dealers in the capacity of Allied's alter egos, agents, servants, or supervisors. In resolving the issue whether there is such an employ- ment relationship, the Board applies the common law right-of-control test under which individuals are deemed to be employees when the employer reserves the right to control the result to be achieved and the means to be used in attaining the result. However, where an employer has reserved only the right to control the ends to be achieved, an independent contractor relationship exists. As noted above, the record shows that Allied and the dealers are separate business entities which do not have common ownership, do not share offices, do not perform administrative services for each other, and do not interchange or transfer employees. It is also clear that Allied limits its benefits to the employees already represented by the Papermakers. In contrast to Allied, which is a manufacturer of pulp, paper, and related products, the dealers are engaged in providing Allied as well as other compa- nies with timber, a substantial part of which is harvested by the dealers' own crews or those of the producers. Although Allied makes interest-free tim- purchased by Allied, the latter's foresters made visits two or three times a week to those tracts to show Frowner how they wanted that work to be done. 25 In those cases where the producers do not own a truck, the dealers may arrange to lease one for hauling the wood from the tract. Allied's personnel manager, Bill Hearn, testified that some of Allied's employees occasionally "moonlight" by driving trucks loaded with wood to Allied's yard. 26 Allied deducts therefrom the state severance tax which it passes on to the dealer. 27 Although the Petitioner (I) correctly contends that dealers and producers perform an important function in providing wood for Allied and (2) points out that the latter successfully petitioned an Alabama court in 1973 to enjoin an association of producers from refusing to make deliveries ber loans to dealers, infrequently "cruises" and "marks" tracts whose timber is bought by the dealers, and may permit the use of its bulldozer, there are significant countervailing factors. Thus, the dealers make the decision as to their sources of wood supply, and Allied exercises no control over the manner in which the wood order is filled or as to the price paid by the dealers to the landowners, produc- ers, and other paper companies. The absence of control by Allied and the dealers over the crews of the producers except that of Frowner is further demonstrated by the producers' exclusive authority in hiring and directing their crews, paying their wages, providing for their workmen's compensation coverage, and withholding their taxes.27 We conclude from the foregoing that the dealers operate as separate and independent business enti- ties. There is therefore no basis for the Petitioner's contention that they are the alter egos, agents, servants, or supervisors of Allied. Assuming, how- ever, that the dealers do meet the requirements for one of those roles, it nevertheless cannot be reason- ably concluded that Allied is the Employer of the producers' work crews as it does not directly or through the dealers have the right of control over the means by which those crews perform most of their harvesting duties. Consequently, we need not reach the question whether the proposed unit of the Petitioner would be appropriate in view of its disclaimer as to the crews which are employed directly by the dealers. Accordingly, in the absence of an employment relationship between Allied and the wood crews of the producers, we shall dismiss the petition.2 8 ORDER It is hereby ordered that the petition herein, be, and it hereby is, dismissed. unless they were paid a certain price for their work, Allied's reliance on them for its wood supply does not signify that the crews of the producers are its employees. Member Jenkins does not rely on the payment of workmen's compensa- tion premiums or the withholding of income taxes. 25 Contrary to the Petitioner, Chairman Fanning and Member Jenkins take the position that the facts in the instant case are distinguishable from those in Prentiss d Carlisle CoMnvny, Inc., 230 NLRB 373 (1977), wherein the Board found that wood crews were employees. Thus, in contrast to Allied which is a manufacturing company, Prentiss & Carlisle is engaged in land management and harvesting on its own land or land for which it holds the cutting or stumpage rights, regularly supervises jobbers and their crews, checks on their performance, maintains a computerized payroll service used by most of thejobbers, and make deductions for Federal and state taxes. 327