Norac Lumber Co., Ltd.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norac Lumber Co., Ltd. and United Paperworkers International Union, AFL-CIO-CLC, Petitioner. Case I-RC-24728 January 30, 1978 DECISION ON REVIEW BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On November 23, 1976, the Regional Director for Region I issued a Decision and Direction of Election in the above-entitled proceeding in which he found that skidder machine owner-operators and pulpjack machine owner-operators were supervisors and ac- cordingly excluded them from the unit found appro- priate for the purposes of collective bargaining. Thereafter, in accordance with Section 102.67 of the Rules and Regulations, Series 8, as amended, of the National Labor Relations Board, Petitioner filed a timely request for review. By telegraphic order dated January 3, 1977, the Board granted the request for review. 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 considered the entire record in this proceeding with regard to the issues under review and makes the following findings: The Employer is a Canadian corporation with its principal place of business at Clayton Lake, Maine, where it is engaged in the harvesting of wood which it wholesales to buyers and sawmills. In the course of its operations it employs skidder and pulpjack owner-operators, cutters, cooks, heavy equipment operators, and utility men whom Petitioner would include in the petitioned-for production and mainte- nance unit. Skidder machine operators generally work with two cutters to the crew. Cutters top the trees, fell them, and trim the limbs. A crane loads the logs on the skidder which then transports them to the roadside for truck pickup and delivery to the custom- er. The pulpjack machine loads logs without the use of a crane. The crews are paid a fixed sum per 1,000 board feet of logs hauled to the roadside with the owner-operator receiving the same share of the crew's earnings as the cutters. Logging companies, generally, do not own or supply their employees with the equipment (i.e., skidders, pulpjacks, and chain saws) needed to cut and move the felled trees out of the woods to the roadside, but, rather, hire individuals who own and bring onto the jobsite their own equipment. The machine owners in addition to their share of the 234 NLRB No. 97 crews earnings are paid a fixed sum per 1,000 board feet of logs cut and hauled to the road for the use of their machines, with the cutters likewise being paid a fixed but lesser sum per 1,000 board feet for the use of their chain saws. As the cutting season approaches, the Employer contacts machine owners, generally those who have worked for the Employer in previous years. At this time the machine owners, who live in small Canadian villages and know the cutters who have worked with them in previous seasons, either contact, or are contacted by, cutters to form a crew for the coming season. Because they are Canadian nationals, the Employer obtains temporary bonds that permit the crewmembers to work in the United States for periods up to 6 months. In addition, pursuant to immigration rules, the Employer must guarantee that each bonded alien will have work for a period equal to three-quarters of the term of the bond. The Regional Director found and concluded that the machine owner-operators were supervisors be- cause (I) they determine the qualifications of and select the cutters with whom they will work, (2) they direct and control the day-to-day activities of the cutters working in their crews, and (3) they have the right to have a cutter removed from the crew without an independent investigation by the Employer. We disagree with the Regional Director's findings and conclusions. The Regional Director concluded that, since the machine operators are the first persons contacted, their recruitment of cutters was tantamount to the hiring of the cutters. A review of the record, however, clearly demonstrates that this is not the case. The Employer carries on its logging operations through the use of crews. The members of the crew are the machine operator and the cutter. Neither can operate efficiently without the other, the income of each crewmember depends on the skill and efficiency of the other members, and, although the machine owner is the initial person contacted by the Employer, it is clear that the Employer is in fact seeking to employ logging crews for the cutting season. The Employer has its Canadian representative secure immigration bonds in blank and, as the crewmembers arrive at the border, the bonds are filled in, and the crewmembers cross the border and report to the logging camp where they are placed on the company payroll. The actual makeup of each crew is basically a matter of mutual agreement predicated on the point of origin of the employees, i.e., the small Canadian villages where the individuals live in relatively close associa- tion with each other, their ability to live together in the logging camp for periods of several months out of each year, and their desire to work with crewmem- bers who will be of maximum mutual benefit. At the 572 NORAC LUMBER CO., LTD same time, although the Employer generally ac- quiesces in the crewmembers' selections of each other, the Employer retains and has exercised its authority to reject any crewmember it deems objec- tionable. It is clear that the recruiting of the cutters is essentially routine and does not involve the exercise of independent judgment necessary to support a supervisory status.' As to the day-to-day activities of the crews, the record does not support the finding that the machine operators responsibly direct and control those activi- ties during the normal workday. Almost all of the basic conditions of work each day, such as starting and stopping times, lunchbreaks, and the number of days to work in any one week are determined on a consensus basis. The crewmembers themselves are generally experienced woodsmen and the actual topping and felling of the trees is almost totally controlled by specifications set out in the Employer's contracts with the landowner and the buyer and prevailing laws, all of which are made known to the crewmembers by the camp foreman. Compliance with such specifications and requirements is readily ascertainable by both the camp foreman and the buyer merely by examining the logs hauled to the roadside.2 In addition, the actual area of the woods in which each crew will work is determined by the camp foreman. With regard to the owner-operators' authority to discharge a cutter, the Employer's vice president testified that after a crew is employed and working in the woods the owner-operator could refuse to con- tinue working with a particular cutter. The Regional Director considered this authority tantamount to the right to discharge the cutter. The witness, however, cited no specific instance of this ever having oc- curred, and later made it clear in his testimony that any attempt by an owner-operator to terminate a cutter would be subject to the Employer's determina- tion that there were sufficient grounds to support a discharge for cause.3 When the status of the machine owner-operators is viewed in the light of the above facts, it is clear that I Our dissenting colleague contends that this recruiting function is sufficient to confer supervisory status on the owner-operators. But see Scott Paper Company. 171 NLRB 821 (1968). In N. LR.B. v. Scott Paper Company, 440 F.2d 625 (C.A. 1, 1971), relied on by our dissenting colleague, the court accepted the Board's judgment that the recruiting of the cutters by owner- operators did not involve the exercise of a supervisory function. 2 The camp foreman visits worksites one to three times a week for periods of from 30 minutes to 1 hour. 3 In Scott Paper Company, supra, the court relied heavily on the owner- operator's "absolute power to discharge" for its conclusion that they were supervisors. It is clear from the evidence that this power does not exist in the present case and our dissenting colleague apparently does not rely on authority to discharge as a basis for finding the owner-operators to be statutory supervisors. I The testimony also shows that if the camp foreman has a complaint about the quality of the logs being cut he will talk to either the cutter or the the operation is truly a crew or team concept, where the composition of the crew is by mutual agreement, decisions are made on a consensus basis, each receives an equal share of the crews' total earnings, and where no one member of the crew is of greater or lesser importance than any of the others. Indeed, the record shows that if a machine operator gets ahead of the cutters, he will take his own chain saw and work as a cutter.4 In these circumstances, we conclude that the machine owner-operators do not possess effective hiring authority requiring the exercise of independent judgment, do not engage in responsible direction of the crew while working at the cutting site, and do not possess the authority to discharge a cutter or effec- tively recommend discharge. Accordingly, we con- clude they are not supervisors within the meaning of Section 2(11) of the Act, but rather are employees that should be included in the unit found appropri- ate. If they were supervisors, there would frequently be one supervisor for one employee. The case is hereby remanded to the Regional Director for Region I for the purpose of conducting an election pursuant to his Decision and Direction of Election, as modified herein, except that the payroll period for determining eligibility shall be that ending immediately before the date of issuance of this Decision on Review. 5 MEMBER PENELLO, dissenting: The majority would reverse the Regional Director's determination that these skidder owner-operators and pulpjack owner-operators are supervisors under the Act. I disagree. The facts are as follows: The Employer, a Canadian corporation, is engaged in the wood harvesting business in Maine. The six machine owner-operators are engaged in carrying wood from the cutting site to a logging road where the wood is subsequently transported to a sawmill by the Employer. Each of these owner-operators works with a crew of one or two cutters whose responsibili- ty is to top the trees, fell them, and trim the limbs. The logging industry in Maine is seasonal. As the cutting season approaches, the Employer hires ma- machine operator, whichever one happens to be available at the time the foreman visits the worksite. 5 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underear Inc., 156 NLRB 1236 (1966); N.LRB. v. Wyman-Gordon Co.. 394 U.S. 759 (1969). Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters. must be filed by the Employer with the Regional Director for Region I within 7 days of the date of this Decision on Review. The Regional Director shall make this list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. 573 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chine owner-operators who in turn hire cutters for their crew. The owner-operators are given great leeway in the selection of their crews, except that in the event that the past performance of a cutter has been unsatisfactory, the Employer will inform the owner-operator that he must not utilize that cutter if he desires to return to the Company during the next season. These crews are usually composed of Canadians who enter the United States via temporary bonds secured by the Employer. Under Federal law, bond- ed employees are guaranteed employment by an employer for at least three-quarters of the duration of the bond, which is 6 months, at which time the employee must return to Canada. Each crew is paid on a piecework basis and is assigned to cut wood in certain areas or "patches." The camp foreman checks each crew from one to three times a week to assure compliance with safety and ecological regulations, as well as contract specifi- cations. The record clearly shows that the Employer does not hire predetermined crews. The Employer hires owner-operators who are in charge of hiring the cutters for their crews. The owner-operators decide who they want on their crews and also make an independent determination concerning the size of their crews. The Employer is so divorced from the hiring of the cutters who work alongside owner- operators that it is commonplace for the Employer to be unaware of the identity of the cutters until they reach camp. Presigned immigration bonds are pro- vided at the border where the names of the cutters are inserted when the cutters identify themselves as a member of a machine owner's crew. The majority asserts that "although the Employer generally acquiesces in the crewmembers' selections of each other, the Employer retains and has exercised its authority to reject any crewmember it deems objectionable." This contention reflects a basic mis- understanding of the recruiting scheme prevalent in this industry. As noted, this Employer relies on Canadian loggers who enter this country via tempo- rary bonds. Federal law mandates that bonded employees be employed for three-quarters of the bond period, which is 6 months, with the only exception being if the employee is discharged for e See, Certification and Use of Temporary Foreign Labor for Agricultur- al and Logging Employment, 20C.F.R. §602.10(1977). 7 See, e.g., N. LR.B. v. Overland Hauling, Inc., 461 F2d 944 (C.A. 5, 1972), a trucking case where the fact that owner-drivers recommended which helpers the Employer should hire was enough to find the owner- drivers supervisors under the Act. See also Deaton, Inc., 187 NLRB 780 (1971), enfd. 462 F.2d 193 (C.A. 6, 1974). See Western Rural Electric Cooperative Company, Inc., 209 NLRB 325 (1974). 9 Scott Paper Company, 180 NLRB 732 (1970). 10 Although in the instant case the owner-operators do not have an cause.6 Uncontradicted testimony on the record indicates that, once a bonded cutter arrives at the camp, the Employer never undertakes to review independently the qualifications of the cutter. Thus, once the bond has been issued at the border to a cutter whose identity is often unknown to the Employer, the Company is obligated by law to provide employment to the cutter for three-quarters of the bond period. An employer can insist that a cutter be removed when that cutter's performance has resulted in complaints from buyers. In the one instance in the record when a cutter was fired by the Employer at the behest of a buyer, the owner-operator was hired the following year only on the condition that he not employ the same cutter. Thus, when the past perfor- mance of a cutter has been unsatisfactory, the Company has chosen to exercise control indirectly at the stage when the owner-operator is hired rather than participate directly in the recruitment of the cutter. It is clear that the owner-operator's role as the primary recruiting agent of the cutters is alone sufficient to find supervisory status.7 There are, however, additional indicia of the supervisory role of these owner-operators. Apart from the foreman's occasional visits to insure compliance with contract specifications, the crews which work in separate areas would be entirely without supervisory direction in the field if not for a finding that these owner- operators are supervisors.8 Plainly, the owner-opera- tor, who hires the cutters and who decides which cutters are to return the next season, is more than a mere equal to the cutters who possess none of this authority. Moreover, the owner-operator, whose ma- chine represents an investment of between $30,000 and $50,000, will ultimately have greater decision- making power than a cutter whose investment consists of his powersaw. The Board once before attempted unsuccessfully to categorize owner-operators in logging operations as employees under the Act.9 The First Circuit in N.LR.B. v. Scott Paper Company, 440 F.2d 625 (C.A. 1, 1971), denied enforcement on the grounds that the owner-operators had an absolute power to discharge making them supervisors under the Act.10 The court noted that the inclusion of the owner-operators in a absolute power to discharge as in N.LRB. v. Scott Paper Company, supra, this is more than offset by their recruiting role which is virtually absolute. In N.L R.B. v. Scott Paper Company, supra, the court observed that the owner- operators appeared to come close to possessing the authority to effectively recommend hiring, but with some difficulty the court accepted the Board's judgment that mitigating factors were present so that owner-operators were not supervisors by virtue of their recruiting role. No such mitigating factors are present in the instant case. The hiring is not exercised by ordinary cutters as well as owner-operators, and the hiring is not conditioned upon formal approval by the Company. The fact that cutters occasionally seek 574 NORAC LUMBER CO., LTD production and maintenance unit would have a potentially devastating impact on intraunion democ- racy." Every cutting season the owner-operators would have the ability to pick those cutters whose viewpoints coincided with their own. The cutters would be cognizant of the fact that individuals who adopted divergent views could easily and effectively be punished by the owner-operator when he selected his crew for the following season. In a recent logging case, Prentiss & Carlisle Company, Inc., 230 NLRB 373, 376 (1977), the majority of this panel held over my dissent that owner-operators were supervisors rather than inde- pendent contractors. The majority was satisfied that an owner-operator could "only be described as a hard-pressed supervisor" and that owner-operators out owner-operators in order to be hired or that owner-operators select crews that will work harmoniously is not inconsistent with a finding that the owner-operators are supervisors under the Act. " The court stated: "The tractor owner-operator is in a position of extraordinary power. In a union of several hundred employees with a high "who hire crews, because of their power to hire, fire, and discipline employees, are not independent con- tractors but are supervisors of Employer." In the instant case, the Employer chose not to raise the independent contractor issue with the result that the same majority would characterize owner-operators as employees rather than supervisors. I am convinced that the facts of this case cannot justify such inconsistency. When the issue is reduced to whether or not these owner-operators are supervisors, I would not hesitate to conclude that they can be described as supervisors because they enjoy an exclusive and virtually unqualified authority to hire the cutters who compose their crews, and they exercise a consider- able degree of control of the crews in the woods. rate of turnover, the potential influence of forty-two owner-operators with at least substantial influence in recruiting and, as we see it, absolute power to discharge, is inconsistent with the democratic presupposition underlying a collective bargaining unit." 575