Prentiss & Carlise Co.

PRENTISS & CARLISLE CO. Prentiss & Carlisle Company, Inc. and Woodsmen's District Council of Northern New England of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO-CLC, Petitoner. Case I-RC- 14188 June 22, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 20, 1976, the Regional Director for Region I of the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding in which he found appro- priate a unit of all full-time and regular part-time loader operators and heavy equipment operators employed by Employer at its field division offices at East Newport and Enfield, Maine, rejecting Petition- er's request for the inclusion in the unit of approxi- mately 80 additional employees, employed by Em- ployer in its wood department. Thereafter, in accordance with Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision. By telegraphic order dated May 17, 1976, the Board granted Petitioner's request for review. Thereafter, the Employer filed a brief on 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 Employer is a Maine corporation engaged in land management and wood harvesting. Its main office is located in Bangor, Maine. Employer's wood department is divided into three field divisions located at Enfield, Ellsworth, and East Newport, Maine. Petitioner seeks a unit of approximately 80 employees employed by Employer at its field divisions at Enfield and East Newport and including jobbers and other leadmen, cutters, skidder-opera- tors, truckdrivers, loader operators, and heavy equipment operators. Employer contends that, while I United Paper Workers International Union, AFL-CIO-CLC, was permitted to intervene and concurs with Petitioner's request for the inclusion of woods employees in the unit sought to be represented. 2 Employer has written contracts with approximately 10 of the 45 jobbers. Both Employer and Petitioner offered into evidence a form entitled "Wood Contract and Purchase Agreement." The agreement provides that the seller (or contractor) agrees to sell to Employer, for the consideration stated, the quantities of wood described therein. Provisions on the back of the form state that the seller guarantees his title to the wood; that all wood must be cut from lands subject to the approval of the purchaser: that wood must be prepared to the satisfaction of the purchaser; that the purchaser reserves the right to send in extra men to ensure completion of the contract 230 NLRB No. 56 it does employ one loader operator and five heavy equipment operators, the remaining individuals sought to be represented by Petitioner are either independent contractors or employees of indepen- dent contractors. Employer's woodcutting operation takes place on land it owns, as well as land for which it holds the cutting or stumpage rights. Three field offices supervise its wood harvesting and purchasing. At its East Newport location, Employer operates a wood- yard buying wood from local farmers and indepen- dent loggers. At its Ellsworth and Enfield field offices, a field supervisor and assistant field supervi- sor oversee the woodharvesting operations per- formed by jobbers and also supervise road construc- tion and other field operations. Employer now uses approximately 45 jobbers with heavy equipment and their crews to harvest its timber and deliver it to 80 lumber mills with whom Employer has contracts to sell timber. Most of the jobbers have no written agreement 2 with Employer but operate under what appear to be oral agreements 3 by which they undertake to cut timber in areas designated by Employer and to deliver it to the mills with whom Employer has contracted. Employer in turn agrees to pay the jobber on a piece rate basis (per cord) for the delivery of various wood products to any of several mills in an area. Employer does not provide the jobbers with equipment or with crews. Each jobber hires his own crew and determines their rate of pay. Under normal circumstances, a jobber may choose to deliver the wood he has cut to one of two or three area mills. His choice appears to be motivated by such considerations as distance or the generosity of the mills' scales. There is also some fluctuation in the piece rate price Employer offers for the delivery of a certain species of wood to a specified mill. The price paid by the mill for the wood, however, is not a consideration since the jobber's earnings are deter- mined by his agreement with Employer. When the wood market is poor and the mills' woodyards become crowded, a jobber's choice between mills may be subject to direct restrictions by Employer. Under these circumstances in the past, Employer has implemented a ticket system for within the stated time; and that the contract is terminable by either party on 30 days' notice. The seller further promises to comply with Government laws pertaining to taxes, insurance, and other benefits. It appears from the record as a whole that the jobbers never have title to the wood they cut; hence, the sales approach of this written contract does not reflect the reality of the relationship between Employer and the jobbers. In addition, Employer's own witness described this contract as "archaic" and stated that it does not reflect the relationship between Employer and the jobbers today. 3 There is no indication in the record of the duration of these oral agreements. Thus, they appear to be terminable at will. 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deliveries. Such a system necessitates that a jobber first check with Employer and obtain a ticket before he can deliver his wood to a mill, thus enabling Employer to control how much wood goes to any specific mill. Jobbers and their crews are supervised on an average of once a week by one of Employer's field office area supervisors. The supervisor checks to ensure that the jobber and his crew are complying with the terms of the stumpage contract, 4 as well as their compliance with safety and ecology laws. For example, a supervisor of the Employer may tell a jobber at what location to cut, to cut his stumps lower or higher, or direct him to clean out an area more thoroughly. Employer maintains a computerized payroll service which is used by most 5 of the jobbers and their crews. The company issues a payroll number to each participating jobber and crewmember. Their pay- checks are drawn on Employer's bank account. A jobber's gross earnings are calculated on the basis of his delivery slips and his piece rate agreements with Employer. Crewmembers are paid either on an hourly basis or a percentage of the gross basis. Both jobbers and crews, however, turn in timecards to Employer's field offices each week. Employer de- ducts from each jobber's gross income and amount to cover Federal and state unemployment taxes, the Employer's portion of social security, and other payroll taxes, plus a charge of I to 2 percent of the gross for providing the service. The employees' portions of social security are deducted directly from the crewmembers' checks. Employer makes the actual payments for state and Federal unemployment taxes in its own name, which taxes ensure that the jobbers and their crews will be eligible for unemployment compensation during the spring mud season, an annual occurrence which brings Employer's operations to a halt for 3 to 6 weeks. Employer also represents itself as the employ- er of the jobbers and their crews 6 for the purpose of obtaining workmen's compensation insurance from a private insurance company. In determining the status of persons alleged to be independent contractors, the Board applies the common law right-of-control test.7 Under this test an employer-employee relationship exists when the employer reserves not only the right to control the ' Stumpage permits negotiated by Employer allow it to cut and sell a landowner's timber in exchange for a biweekly payment determined by the amount and kind of wood taken. This contract sets out in specific detail the species of wood which may be cut, the minimum diameter of the trees to be cut, and also guarantees against erosion and other environmental hazards. It also requires Employer to carry bodily injury and other insurance with respect to employees doing the actual cutting. s Four jobbers do not use the payroll service for themselves or their crews. The record also shows that, while Employer in the past may have offered the service to other nonassociated groups, such as the logging museum, it does not presently do so. result to be achieved, but also the means to be used in attaining the result. On the other hand, where the employer has reserved only the right to control the ends to be achieved, an independent contractor relationship exists. It is clear that the application of this test is not a "perfunctory exercise." In order to determine the nature of the relationship, the Board analyzes the facts presented in the particular case, balances them, and arrives at a result.8 The Regional Director has attached significant importance to the written contracts made with jobbers, despite his finding that the jobbers do not have title to the wood they cut as the contracts imply. We also note that these concededly irrelevant contracts cover less than a fourth of the jobbers involved here. All other jobbers perform their cutting operations pursuant to an oral agreement with Employer, an arrangement which, based upon this record, we deem to be unilateral. This Board has had occasion to note that the control retained through oral agreements providing for individual services, which agreements are readily terminable, is inconsis- tent with an independent contractor status.9 The control of its woodcutting operation retained by Employer under these oral arrangements is significant, particularly when coupled with the payroll service it provides to all but four jobbers. The payroll service requires submission of timecards, assignment of individual payroll numbers, and actual payment by Prentiss-Carlisle checks of jobber and crew earnings, taxes, insurance, and so on. Though nominally "optional," the payroll service by its very nature exerts employer control. As part of it, Prentiss-Carlisle represents to Federal and state governments-when making actual payment of the unemployment taxes that support the jobbers and their crews when no work is possible in the woods- that it is the employer of the employees in question. It similarly represents itself to the workmen's compensation insurance carrier, which insurance satisfies a commitment of its stumpage contracts with the landowners. The W-2 forms for withholding Federal income taxes are also filed by Prentiss- Carlisle as the employer. Apparently, this is also the procedure followed for social security tax forms. Prentiss-Carlisle also retains effective control of delivery choices by the jobber, and close control of the cutting methods by weekly onsite supervision. 6 One crewmember testified that he was told by Employer to use its name as "employer" and his jobber's name as "foreman" on a workmen's compensation claim form. Employer also lists itself as "employer" on W-2 forms filed. I N.L.RB. v. United Insurance Company of America, 390 U.S. 254 (1968). 8 National Freight, Inc., Federal Freight, Inc., and Son Transportation, Inc., 153 NLRB 1536, 1538-39 (1965). 9 See A. Paladini, Inc., 168 NLRB 952, 953 (1967). 374 PRENTISS & CARLISLE CO. Considering the nature of the woods operation, it is unrealistic to attach importance to lack of day-to-day supervision, as the Regional Director has done. The jobber cuts on land entered only with the permission of Employer, he cuts the kind of tree designated by Employer, and he cuts the size and number of trees directed by Employer. Accordingly, we conclude that Prentiss & Carlisle has reserved, and actually exercises, control over the manner and means,10 as well as the result of the jobbers' woods operation, so that the jobbers cannot be said to be independent contractors. Although they apparently own and operate their own equipment, which ownership is frequently an attribute of independent contractor status, we conclude that true entrepreneurship does not exist based upon the arrangement between these jobbers and Prentiss- Carlisle, as shown by the record. With "magic numbers and persuasive tongue,"" our dissenting colleague argues herein, we have contrived to distort the record in order to create an employer-employee relationship where there is none. We submit that it is our colleague, not ourselves, who not only has accepted the testimony of Employer's witnesses at face value but has also largely ignored the remainder of the record. For instance, the dissent argues that we have mislabeled the jobbers' use of Employer's payroll service as "nominally" optional when, in fact, participation is "entirely" voluntary. This ignores the uncontroverted testimony of one of the jobbers to the effect that he was repeatedly told by Employer's field supervisors to get on the payroll service. It is said the payroll service is of mutual benefit to jobber and Employer alike. It necessarily has some benefit to both but, as operated, it strongly indicates an ambivalent stance on the part of the Employer. The record clearly reflects how Employer uses the appearance of an employer-employee relationship created by its payroll service to serve its own financial interests. For example, it hold itself out as the jobbers' employer to a private insurance compa- ny in order to guarantee that the jobbers and their crews get workmen's compensation insurance, a condition of its contracts with woodland owners. To the Federal government, it holds itself out as the employer in withholding income tax and paying social security taxes. We are accused of less than complete candor in our description of the "ticket system" implemented during slumps in the wood market. Our dissenting colleague stresses that it is the mills which initiate the ticket process and that, when it was last used by Employer, it affected only two or three mills. These 'O See Leckie Smokeless Coal Co., 160 NLRB 329 (1966); see also F H. Snow Canning Company, a Division of the Borden Company. 156 NLRB 1075 (1966). observations, while true, beg the question, which is Employer's actual or potential ability to control the jobbers' wood deliveries. In fact, Employer has such power. Only it has contracts to sell the wood to the mills, only it issues the tickets when the millyards become full, and only it retains complete discretion to decide who gets those tickets. It is suggested by the dissent that the extent of Employer's supervision herein is insufficient to support our conclusion that the jobbers and their crews are not independent contractors. Specifically, it is argued that Employer's field supervisors do not tell the jobbers or their crews what methods to use in their work. We respond by reiterating what we have stated above that Employer's field supervisors regularly visit the woods and ensure that the jobbers and their crews meet the numerous specifications in the stumpage contracts held by Employer. We do not agree, as our colleague appears to suggest, that meaningful supervision by Employer requires that it give lessons in how to hold the axe or when to yell "timber." The jobbers we find to be supervisors can do this on a day-to-day basis. The dissent also suggests that the "entrepreneurial aspects" of the jobbers' business, as well as the jobbers' ability to make numerous decisions affecting their economic fortunes, argue against our finding that they are not independent contractors. Assuming for the moment that there are economic fortunes to be made in the woodcutting industry, a matter about which we express grave doubts, what economic decisions do these jobbers really have open to them? These are men who cut and haul trees for a living. The trees they cut, the land they cut on, which mills they truck to, the payroll system most of them use, and the amount they are paid for these services all are controlled by Employer. The reality is that these men have very little economic independence left to them. While the average American might still per- ceive the modern logger along the lines of the heroic figures of the Bunyan myths, the real status of the Maine woodsman today is anything but heroic. Modern woods-work is a far cry from the logging operations of the last century. Small trees for pulpwood, not massive saw logs for lumber, are now the chief crop harvested from the forest. Chain saws have replaced axes and tractors, and skidders now do the work of oxen. The major enemy of the logger today is not the physical environment but the economic system under which he produces wood. Created and manipulat- ed by the large paper companies for their private l Congreve, "The Mourning Bride." act I, scene I. 375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain, the pulpwood procurement system has driven the logger into debt and deprived him of even the most rudimentary of social benefits. By relating a large group of Maine workers to a life of what could be called pulpwood peonage, it has made logging one of the lowliest and least desirable occupations in Maine.12 Thus, it is clear from the record as a whole, including the above, that these jobbers neither have nor exercise the economic choices which we have found to be the hallmark of the independent contractor. We are said to be remiss in refusing to be guided in our result by the Board's decision in Twin City Freight, Inc., S & B Nelson, Inc., 221 NLRB 1219 (1975), a case in which we dissented. Our colleague sees no "significant distinction" between the facts in that case and those herein. We disagree. Perhaps if the interstate motor carrier in that case owned the highways, rather than the trailers, there would be a basis for comparison. We believe that the employ- ee/independent contractor question is one which must be decided on a case-by-case basis based on a careful analysis of the record. In this vein, we note that the dray agent in question in Twin City Freight operated pursuant to a letter of agreement setting forth the basic terms of his agency. In the third paragraph of the agreement, the agent agrees to "provide and maintain the necessary insurance coverage and such other failities as may be required to be an independent business" and further agrees to be liable as such to the general public. This is hardly comparable to the totally oral arrangements under which most of the jobbers here operate nor to the concededly archaic memoranda governing Employ- er's relations with a few jobbers. These exist side by side with Employer's payroll system in which it holds itself out as the jobbers' and their crews' employer both to the government and to private insurance companies. Furthermore, in Twin City we looked beyond the written agreement to the employer's complete control of the flow of freight to the dray agent and the consequent lack of opportunity to make decisions which would significantly increase the agent's earnings. We also considered the employ- er's unilateral division of agent territory as an important indicium of its control over the agent. In this case, there is no meaningful written agreement to look beyond, but the record is redolent of lack of opportunity for jobbers to make significant decisions on their own behalf and of total control by the Employer of a jobber's sphere of influence. 12 Osborn, "The Paper Plantation," p. 130 (Ist ed., 1974), supplied by the Petitioner apparently as Pet. Exh. 12. '3 It appears from the record that Joel Pelletier, Charles Richardson, Francis Gordon, Kendall Hodgson, Everett Brown, and John Lyford are truckers occasionally used by both Employer and the jobbers. Further Does our dissenting colleague truly bemoan the possibility of "obligating" the Employer to take over the conduct of labor relations with respect to the woods crews? These workers have been denied the possibility of meaningful bargaining under our Act. This denial has thus far been accomplished by an obvious but ineffectual attempt to create what at first glance resembles an independent jobber hiring a crew he is responsible to direct, pay, and insure. But, as a matter of fact, this "jobber"-lacking any written agreement defining his responsibilities-can only be described as a hard-pressed supervisor, required to assume the burden of supplying his own equipment in order to survive in a remote area of this country, and treated for purposes of payroll, related reporting, and significant insurance coverage as a rank-and-file employee. It is high time these woods crews have the benefit of a Board election. In view of the foregoing and the record as a whole, we find that the jobbers who do not employ crews, and the crewmembers of those who do, are employ- ees within the meaning of Section 2(3) of the Act. We further find that the jobbers who hire crews, because of their power to hire, fire, and discipline employees, are not independent contractors but are supervisors of Employer. We therefore find a question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) of the Act. We find the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All cutters, skidder operators, truckdrivers, loader operators, and heavy equipment operators em- ployed by the Employer in the Employer's wood operations in the State of Maine who are engaged in the cutting and transportation of wood from Employer-owned or managed woodlands to mills with whom Employer contracts, excluding sales employees, office clerical employees, guards, and supervisors as defined in the Act.13 [Direction of Election omitted from publication.]14 MEMBER PENELLO, dissenting: The majority of this panel has managed the considerable feat of converting the facts of this case into those required by its view of the law, a minority view vis-a-vis that of the full Board, to create an employer-employee relationship, and then converting information as to the employment status of these truckers is unavailable from the record. We shall therefore allow the truckers to vote subject to challenge. 14 [Excelsior footnote omitted from publication.] 376 PRENTISS & CARLISLE CO. its minority view into the controlling principle for this case. This multiple alchemy is performed by the incantation of magic words and the waving of a scepter. First, the facts: The jobbers whom the majority finds to be employees of the Employer operate with their own heavy equipment representing investments of up to $200,000 and crews of up to 10 persons, whom the jobbers hire, set wages for, supervise, and discipline, without any participation by the Employ- er. Neither the jobbers nor their crews share in any of the fringe benefits provided to the Employer's employees. Overseeing the operations of all 45 jobbers, plus their crews, plus road construction and other field operations, are 2 field supervisors of the Employer and their assistants, all of whom spend a considerable amount of time in their offices as well. This means that a field supervisor or assistant performs some oversight function with respect to each jobber's operations irregularly, averaging ap- proximately once a week. Typically, these inspec- tions have to do with the condition in which the harvested land has been left after the cutting, damage to uncut trees, and compliance with the specifica- tions of the Employer's stumpage permits as to minimum size of trees to be cut and the height of the cut, reflecting the forestry theories of the various landowners rather than those of the Employer. There is no evidence of any instructions given by the Employer's supervisors to the jobbers or their crews as to the methods to be used in complying with any of the specifications or other aspects of their contracts. The jobbers use their own discretion in at least the following respects: how much equipment to purchase and where to purchase and finance it; how and where to use and maintain the equipment; whether to employ crews, of what size, and how much to pay them, the last being a matter between the jobber and the crewmembers; what part of a designated wood- land to cut; 15 establishing a timetable and order for cutting; whether to haul the cut timber to the mills themselves or contract out the hauling to an indepen- dent hauler; 16 to which of several mills to deliver the wood; 17 whether to contract with any of the Employer's competitors, which several of the jobbers do; and whether or not to contract with the Employer to use its payroll services. 15 One jobber's designated area, for instance, is 6 by 3 miles. i6 And at least onejobber does contract hauling for otherjobbers. 17 Some of the jobbers have their own contracts with mills for purposes other than the work they do for the Employer. is It is ironic to be accused of accepting uncontradicted testimony of witnesses for the Employer at "face value" and otherwise disregarding the record. while the majority bases its conclusion that use of the payroll service is "nominally" optional entirely upon the statement of a single jobber, who Here is where the majority uses one of its magic words. It recites that the jobbers' use of the Employer's payroll service is nominally optional.l8 This use of the word "nominally" apparently is intended to deprive of its natural persuasiveness the fact that use of the payroll services is indeed optional; that those who want to use it must pay a service charge for it; that not all the jobbers use it; and that, when the jobbers do use the service, not only their employees working on jobs contracted by the Employer are listed, for administrative payroll purposes, as employees of the Employer, but also those employees of the jobbers who are working on jobs completely unrelated to the Employer. Thus, the service is provided, for the mutual benefit of the user and the supplier, as a business transaction indepen- dent of the operational relationship between the Employer and the jobbers.19 It has recently been provided by the Employer to other outside contrac- tors and covers employees who by no stretch of the imagination could be considered employees of the Employer. Therefore, all of the arguments connect- ing use of the payroll service with "employee" status of its users and their employees fall away as cleanly as a well-felled tree. A second example of verbal magic is the majority's transmutation of the Employer's "ticket system" into a means of control over "how much wood goes to any specific mill." One important detail omitted from the majority's opinion is that the only time the record shows that the ticket system was used it applied only to I or 2 of the 80 mills with which the Employer deals. Even more fundamentally, the majority fails to explain that the limitation of deliveries to a particular overloaded mill is instituted not by the Employer but by the mill. When such an instruction is received by the Employer, it issues tickets to jobbers who are harvesting wood for which the overloaded mill would be a likely market, thus guaranteeing that the jobber may deliver a designated quantity of wood to that mill. Without such a ticket, the jobber might appear at the mill and request clearance to unload, subject to the mill's current situation and the tickets outstanding. Thus, the only diminution of the jobber's discretion to deliver to the mill most economical for him is in a very limited situation that is only peripherally in the control of the Employer. What is left, then, to suggest other than an independent contractor relationship between the simply asserted that he was told by representatives of the Employer to subscribe to the payroll service. It is noteworthy, however, that the jobber in question testified that his reason for signing up for the payroll service was to obtain workmen's compensation coverage which he desired. In actuality, therefore, it would seem that it is the majority which has ignored the record with respect to this issue, except for some isolated testimony by one witness, and is thus unable, or unwilling, to see the forest for this tree. '9 In fact, the Employer makes a profit on providing this service. 377 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer and the jobbers? It is, in the view of the majority of this panel, that the contracts are "readily terminable," a fact which, in the most spectacular display of the majority's wizardry, "is inconsistent with an independent contractor status." Aside from the lack of authority for such a sweeping statement, such assertion flies in the face of a host of decisions in which the Board has found independent contrac- tor status in spite of the short-term terminability of the contract.20 While terminability at will by the dominant party has been weighed as a factor consistent with an employer-employee relationship, it has never been considered sufficient in itself to justify finding that such a relationship exists. The majority's rationale apparently is that, assum- ing the jobbers are more dependent economically on the Employer than the Employer is on them (an assumption that can be based only on speculation insofar as this record is concerned), the Employer's option to terminate the relationship gives it the power to control the means by which the jobbers perform their contracts even if that power has not been exercised. But this or any similar rationale does not represent the view of the Board. We do not decide whether the business firms who contract out work have the economic leverage to demand a reservation of the right to control the means of performance. We decide, rather, whether such a right has in fact been reserved. There is no evidence that this Employer has done so. 21 When balanced against the numerous entrepre- neurial aspects of the jobbers' businesses-the large investments and the many decisions and policies 20 E.g., Ace Doran Hauling & Rigging Co., 214 NLRB 798 (1974); Conley Motor Express, Inc., 197 NLRB 624 (1972); Donrey, Inc., d/b/a Las Vegas Review-Journal, 223 NLRB 744 (1976). 21 Thus, assertions of the majority that the jobbers "have very little economic independence left to them," that they "neither have nor exercised the economic choices which we have found to be the hallmark of the independent contractor," and "the record is redolent of lack of opportunity for jobbers to make significant decisions on their own behalf and of total control by the Employer of a jobber's sphere of influence," while appealing which if pursued will affect their own economic fortunes-the factors on which the majority relies, even if given greater weight than I would, are insubstantial. A fair weighing of the factors would show, I think, a stronger case for independent contractor status here than in the recent case of Twin City Freight, Inc., S & B Nelson, Inc., 221 NLRB 1219 (1975), where a majority of the Board, the members of the majority of this panel dissenting, found a dray agent to be an independent contractor despite the fact that the employer supplied him with a terminal and trailers, bearing its identification and insured by the employer. Aside from the greater degree of ownership and control of the equipment they use by the jobbers in the instant case, I see no significant distinction between the two cases.22 The result reached by the majority in the instant case is almost ludicrous from a practical viewpoint as well. There is no dispute over the fact that the Employer exercises no control over the labor relations of the jobbers' crewmembers. Yet the majority holds that it is their employer. And, by certifying a union as their representative, the Board would obligate the Employer to take over from the jobbers the responsibility for the conduct of labor relations with respect to the crews. This strikes me as further evidence that the majority is creating an employer-employee relationship here. I think the decision that one already exists is wrong. At the very least, it is a gross modification of our standard of review to hold that the Regional Director committed reversible error in finding that the jobbers are independent contractors. as sociological rhetoric, have nothing to do with the application of the "right-to-control" principle to the facts of the case. It thus appears that in their zeal to reach a desired result, the members of the majority have ventured far out on a limb-a limb which is easily sawed off by mere recognition of the fact that the Employer has neither reserved nor exercised the right to dictate the means by which the jobbers do their work. 22 See also Ace Doran Hauling & Rigging Co., supra; Harbor Plywood Corporation, et al., 119 NLRB 1429 (1958). 378