Murphy Timber Co.

In the Matter of HARRY MURPHY, E. J. MURPHY, P. C. MIIRPHY AND J. R. MURPHY, DOING BUSINESS AS MURPHY TIMBER COMPANY and LOCAL #5-92, INTERNATIONAL WCODIVORKEIIS OF AMERICA, AFFIL- IATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-g957.Decided December 11, 1941 Jurisdiction : lumbering industry. Investigation and Certification of Representatives : existence of question: dis- pute as to appropriate unit; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees, including persons who drive- company-owned trucks and are paid clay wages by the Company and truckers who own only oine truck and drive that truck on the Companys operations, but excluding truckers who own more than one truck and persons driving trucks owned by the truckers, truckers who own only one truck and drive that truck on the company's operations found to be employees and not independent contractors as Company contends. Messrs. Leo J. Hanley and Harry Lehrer, of Portland, Oreg., for -the Company. Green d Landye, by Mr. James Land ye, of Portland, Oreg., for the Union. Miss Melvern R. Krelow, of,counsel to the Board., DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 8, 1941, Local #5-92, International Woodworkers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, filed with the Regional Director for the Nineteenth Region (Seattle, Washington) a petition r alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Harry Murphy, E. J. Murphy, P. C. Murphy and J. R. Murphy, doing business, as Murphy Timber _Company,2 'At the hearing, on August 30, 1941, the Union amended its petition to correct the number of employees in the alleged unit'from 15 to approximately 40 2 Incoi i ectly'designated in the formal papers as Murphy Timber Company. 37N L R B, No 80 487 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Portland, Oregon, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 11, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9, (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investiga- tion, and authorized the Regional Director to conduct it and to pro- vide for an appropriate hearing upon clue notice. On August 18, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on August 23, 1941, at Portland. Oregon, before David C. Shaw, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were represented by counsel and participated in the hearing. After the introduction of formal papers, the parties requested and were granted by the Trial Examiner, a continuance to August 29, 1941. On August 29 and 30, 1941, the hearing proceeded at Port- land, Oregon, before Thomas P. Grahain, the Trial Examiner duly designated by the Chief Trial Examiner. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiners made various rulings on motions and on objections to the admission of evidence. • The Board has reviewed the rulings of the Trial Examiners and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 30, 1941, the Company and the Union filed briefs which the Board has duly considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Harry Murphy, E. J. Murphy, P. C. Murphy and J. R. Murphy, partners, doing business as Murphy. Timber Company, are engaged in the cutting, removal, and sale of timber in the State of Oregon. During the 12 months prior to the time of the hearing, the Company cut approximately 25,000,000 feet of timber, valued at $300,000. Ap- proximately 60 per cent of the Company's output is fir logs, which it sells to various sawmills. These sawmills ship a substantial por- tion of their products to points outside the State of Oregon. Ap- proximately 40 per cent of the Company's output is hemlock logs, which it sells to various paper companies and sawmills. A sub- MURPHY TIMBER COMPANY 489 stantial portion of the products of these paper companies and saw- mills is shipped to points outside the State of Oregon. The Company admits that it is engaged in commerce witEin the meaning of the Act. H. THE ORGANIZATION INVOLVED Local #5-92, International Woodworkers of America, affiliated with the Congress of Industrial Organizations, is a labor organiza- tion, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In the latter part. of December 1940, the Union requested the Com- pany to enter into collective bargaining negotiations. The Company refused because of a question concerning the inclusion in or exclusion from the unit of certain employees. A statement of a Field Examiner of the Board, introduced in evi- dence at the hearing, discloses that the Union represents a substan- tial number of employees in the unit hereinafter found to be appropriate for the purposes of collective bargaining.' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company and the Union agree that all production, mainte- nance, and transportation employees of the Company constitute a unit appropriate for the purposes of collective bargaining. The sole issue between the parties is whether certain persons trans- porting logs for the Company are "transportation employees of the 3 The Field Examiner reported that the Company submitted a list of 31 employees in the production and maintenance departments on July 19, 1941 . In addition , there appear to have been 18 persons engaged in truck driving on July 19 , 1941, in connection with the Company 's logging operation Of the 31 persons listed as production and maintenance em- ployees, 12 were dues-paying members and 2 had signed authorization cards, and of the 18 truck drivers , 11 were dues-paying members There are approximately 35 employees in the appropriate unit 490 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company." 4 The Union contends that "transportation employees of the Company" should include all persons engaged in transpor- tation of logs for the Company. The Company contends that none of these individuals can be considered employees of the Company, and that they should, therefore, be excluded from the unit. The Company in the course of its business, as in all logging opera- tions, requires the transportation of its logs from the point of felling to a delivery, point. This essential part of its business is carried on exclusively by truck. The persons transporting logs (hereinafter referred to as truckers) because of the custom which has developed in the industry supply their own equipment. The hauling of logs is an integral part of the Company's business. The truckers supply trucks to the Company pursuant to individual agreements entered into between said truckers and the Company. Individual agreements between six of these truckers and the Com- pany were introduced in evidence. The agreements provide that (1) the truckers will use their own equipment and provide their own men to transport logs to places set out therein; (2) payment for these services shall be at a specific rate per thousand feet and that these rates are subject to change upon 10 days' notice by the Company; (3) the truckers agree to carry public liability insurance and to make reports and payments to the State Unemployment Compensation Commission and the Federal Social Security Board and to comply with the Federal Wage and Hour Law. These agreements are for an indefinite period and contain no expiration date. Under the terms of the agreements between the Company and the truckers, their employment may be terminated at any time by unilateral action of the Company. All except two or three of the truckers who haul for the Company own more than one truck. Those who only own and drive one truck for hauling of the Company's logs normally work steadily for the Company, and in no instance drive for other logging operations unless the Company has no work for them. The truckers who own more than one truck usually drive one truck for the Company, and on occasion supply a second truck for the Company's operations. They supply their remaining trucks, however, to other logging operations in the same locality. The truckers are compensated by the Company at a per thousand foot rate once a month but, as hereinabove noted, the rate is subject to change by the Company on 10 days' notice. The record discloses that in an average month they receive -from- the Com- pany sums ranging from $60.46 to $1,762.79. They pay for the upkeep 4 The parties agree that all persons who drive company -owned trucks and are paid day wages by the Company are "transportation employees of the Company " The record does not disclose whether or not there aie any persons in the employ of the Company who come within this category . We shall include any such persons in the unit. , MURPHY TIMBER COMPANY 491 of their trucks, for the gasoline, oil, State operating licenses and fees, and similar items. The truckers who own more than one truck hire, compensate, and discharge their own drivers, who are not on the Company's pay roll, but the wages of the drivers are governed by the compensation allowed by the Company to the truckers. The drivers who are hired receive their instructions as to the operation of the trucks from the owners of the trucks. The Company main- tains substantial control over the work of the truckers by setting the time at which loading operations are to begin, and by instructing all truckers where to pick up the logs and where they are to be delivered. The manner of loading the trucks is determined by the Company and employees listed on the pay roll of the Company load the trucks with regard to the laws of the State of Oregon relating to operation of* motor vehicles on public highways of the State. The Union introduced in evidence collective bargaining contracts, covering numerous other logging operations which include truck driv- ers irrespective of truck ownership. However, the record does not disclose the details of the relationship under which they operate, such as whether the truck drivers covered by these contracts own more than one truck, whether they drive for only one logging operation, the- regularity of their services, and whether they have drivers whom they hire and compensate. - From the foregoing facts, it is clear that the employment status of the truckers is in many respects similar to that of the production and maintenance employees listed on the Company's pay roll. Especially is this true of any trucker who owns- only one truck and drives that truck regularly for the Company. The ownership of his one truck is merely an incident of his employment; it does not, as the Company would have us conclude, establish him as an independent entrepreneur engaged in the transportation business. Such ownership is similar to ownership by any employee of the tools requisite to the perform- ance of his duties, and does not of necessity carry with it the responsi- bility of managing and maintaining a business. Moreover, the essential control over the fundamental incidents of the usual employer- employee relationship such as tenure of employment, wages, hours,. and working conditions resides solely in the Company. Thus, the agreement under which such a trucker supplies his services is termi- nable at the will of the Company. His rate of compensation may be changed upon 10 days' notice. So far as the record discloses, such a, trucker receives no compensation from any other source than the Com- pany. The lack of detailed supervision by the Company over the trucking work does not seem significant to us, for the work is not read- ily susceptible of, or normally subjected to, detailed supervision, even when performed by a person conceded to be an employee. Under the circumstances, we conclude that'truckers who own only one truck and 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drive that truck on the Company's operations are employees of the Company within the meaning of Section 2 (3) of the Act, and we shall include them in the unit.s Some of the facts upon which we base the above conclusion are -equally applicable to the truckers who own more than one truck. However, we are of the opinion that the record is not sufficient to permit a determination at this time as to whether or not the truckers who own more than one truck are employees of the Company. The record does not disclose whether such persons are or are not engaged in independently established businesses of transfer and trucking. No evidence has been adduced as to the character and extent of their services to other logging companies. Nor is it shown whether they maintain established places of business, whether they represent or advertise that they are engaged in the general transfer and trucking business. In the absence of these and other factors necessary for such determination, we shall exclude from the unit the truckers who ,own more than one truck, and the persons driving trucks owned by the truckers. This exclusion shall not preclude the parties from seeking a determination of the status of these individuals at a later date. We find that all production and maintenance employees of the Company, including persons who drive company-owned trucks and are paid day wages by the Company and truckers who own only one truck and drive that truck on the Company's operations, but excluding truckers who awn more than one truck and persons driving trucks owned by the truckers, constitute a unit appropriate for the .purposes of collective bargaining. We further find that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. At the hearing the parties agreed that in the event the Board directs an 5 See Matter of Seattle Post-Intelingencer Department of Hearst Publications . Ino and ,Seattle Newspaper Guild, Local No 82, 9 N L R B 1262, at p 1274 We have had occasion to point out that the statutory definition of the word employee is of wide slope As used in the Act the term embiaces "any employee," that is, all employees in tl,e conventional as well as legal sense except those by express provision excluded The primary consideration is whether effectuation of the declared policy and purposes of the Act compiehends securing to the individual the iigbts guaranteed and protection afforded by the Act. The matter is not conclusively determined by a contract which adverts to and purports to establish the status of such person other than as an employee Public interest in the administration of the Act permits an inquiry into the material facts and substance of the relationship MURPHY TIMBER COMPANY 493, election, eligibility to vote shall be determined by the Company's, pay roll,preceding the date of election. Accordingly, we shall direct. that an election by secret ballot be held among those employees in the appropriate unit who were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth hereinafter in the Direction. Upon the basis of the above findings of fact and the entire record in the case, the Board makes-the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Harry Murphy, E. J. Murphy, P. C. Mur- phy and J. R. Murphy, doing business as Murphy Timber Company, Portland, Oregon, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of Harry Murphy, E. J. Murphy, P. C. Murphy and J. R. Murphy, doing business as Murphy Timber Company, Portland, Oregon, including persons who drive company-owned trucks and are paid day wages by the Com- pany and truckers who own only one truck and drive that truck on the Company's operations, but excluding truckers, who own more than one truck and persons driving trucks owned by the truckers, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to tho power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Harry Murphy, E. J. Murphy, P. C. Murphy and J. R. Murphy, doing business as Murphy Timber Company, Portland, Oregon, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Nineteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production and mainte- nance employees who were employed by the Company during the pay- .494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roll period next preceding the date of this Direction of Election, including persons who drive company-owned trucks and are paid day wages by the Company and truckers who own only one truck and -drive that truck on the Company's operations and employees who did not work during said pay-roll period because they were ill, on vacation, or in the active military service or training of the United States, or temporarily laid off, but excluding truckers who own more than one truck and persons driving trucks owned by the truckers and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local #5-92, International Woodworkers of America, affiliated with the Congress of Industrial Organizations. MR. GERARD D. REILLY took no part in the consideration of the zabove Decision and Direction of Election.