Georgia Pacific Corp.

National Labor Relations Board - Board Decisions

Aug 9, 1976

225 N.L.R.B. 866 (N.L.R.B. 1976)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgia Pacific Corporation and its wholly owned sub-
sidiary, St. Croix Pulpwood Company and United
Paperworkers International Union , AFL-CIO, Pe-
titioner . Case 1-RC-14129
August 9, 1976
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND WALTHER
On January 15, 1976, the Regional Director for
Region 1 issued a Decision and Order in the above-
entitled proceeding I in which he dismissed the peti-
tion because he found that the persons sought to be
represented by the Petitioner were not employees of
the Employer, but rather were independent contrac-
tors. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and Reg-
ulations, Series 8, as amended, the Petitioner filed a
timely request for review of the Regional Director's
decision, contending that the decision raises a sub-
stantial question of law or policy indicating a depar-
ture from officially reported Board and court prece-
dent. By telegraphic order dated February 24, 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 Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issue under review, including
the brief on review, and makes the following find-
ings:
The Employer is a Georgia corporation engaged in
the manufacture of pulp, paper, and forest products
in Maine and elsewhere. The Employer's Woodland,
Maine, facility is divided into three operational
units: pulp and paper, wood processing, and wood
resources. The wood resources division is composed,
in part, of the St. Croix Pulpwood Company, which
employs, apart from the individuals here involved,
approximately 225 employees, all of whom are repre-
sented by the Petitioner. The Petitioner and the In-
tervenor now seek to represent the truckdrivers,
crane operators, and contract truckers or jobbers,
1 International Brotherhood of Carpenters and Joiners of America, AFL-
CIO, was permitted to intervene
who load and transport timber and its byproducts
from the forest to processing plants.
As indicated above, the issue before the Board is
whether the jobbers are independent contractors as
contended by the Employer and found by the Re-
gional Director. In resolving such an issue, the Board
applies the common law right-to-control test.' Under
this test, individuals are deemed employees where the
Employer reserves the right to control not only the
ends to be achieved, but also the means to be used in
achieving such ends.
The record shows that the jobbers perform an in-
tegral function in the Employer's operation. Thus,
after timber is cut and piled in the Employer's for-
ests, its crane operators load the wood onto the
trucks and it is then transported to the Employer's
processing facilities. To perform this work, jobbers
utilized, at the time of the hearing, from one to eight
drivers. The jobbers pay these drivers, and pay for
their own equipment and its attendant expenses.'
Each of the jobbers has a contract with the Em-
ployer which is renewed on an annual basis. These
contracts, which are substantially the same, provide,
inter aka, that the jobbers shall receive a predeter-
mined rate for the materials hauled on their equip-
ment. The contracts also provide that:
Contract Trucker shall transport Company's
logs of pulpwood over the most direct route or
over such other routes as Company may desig-
nate, and Contract Trucker shall coordinate
Contract Trucker's services with Company's op-
erations and shall be subject to all reasonable
instructions issued by Company as to the time
and manner of performing such transportation
service, except that at all times the operation
and control of Contract Trucker's equipment
shall remain in Contract Trucker or its operator.
The contracts further permit the Employer to reject
any vehicle or driver which fails to meet either com-
pany or Government safety standards.
Moreover, there is testimony that the camp fore-
man has the authority to supervise jobbers and their
employees to the extent of maintaining an efficient
operation. Thus if there is a problem with trucking,
the foreman has to discuss it with the trucker and get
the problem solved. Furthermore, in addition to the
Employer's right to reject drivers or equipment for
safety consideration, the record shows that, as a re-
2 See, e g, Portage Transfer Company, Inc, 204 NLRB 787, 788 (1973),
Contractor Members of the Associated General Contractors of California, Inc,
201 NLRB 311, 313 (1973)
3
Prior to 1970, most of the jobbers were employed directly by the Em-
ployer to haul materials using the Company's equipment Since that time
the jobbers have purchased the equipment from the Employer
225 NLRB No. 118
GEORGIA PACIFIC CORPORATION 867
suit of the Employer's complaint, a driver who was
habitually tardy was removed from the Employer's
operation.
In view of the foregoing and on the basis of the
entire record,4 we find that the Employer has sub-
stantial control over the means by which the individ-
uals in question perform their duties, and that they
are therefore not independent contractors. However,
with respect to the jobbers, the record shows that
they hire, fire, discipline, assign, transfer, and other-
wise responsibly direct the drivers of their equip-
ment. It is apparent that this authority is exercised
not only for the purpose of protecting the owner's
equipment, but also in the interest of the Employer
as an integral part of its operations. We therefore
conclude that they are supervisors within the mean-
ing of the Act, and we shall exclude them from the
unit. However, the persons hired by the jobbers are
employees of the Employer within the meaning of
the Act and are included in the unit.
Accordingly, we find that a question concerning
representation exists as to the following employees
who constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section
9(b) of the Act:
All truckdrivers and crane operators employed
by the Employer in the Employer's wood opera-
tions in the State of Maine who are engaged in
the transportation of logs and chips from the
woodlands to the Employer's manufacturing fa-
cilities, excluding sales employees, office clerical
employees, guards, and supervisors as defined in
the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
MEMBER WALTHER, dissenting:
Contrary to my colleagues, I would find the job-
bers in the instant case to be independent contrac-
Our dissenting colleague asserts that "other than being required to
weigh their vehicles," the contract truckers (jobbers) "are subject to virtually
no control by the Employer " In our view, the contracts used by the Em-
ployer and the testimony herein compel the opposite conclusion Reliance
on other factors mentioned in the dissent seems equally misplaced For
example, while, as the dissent says, compliance with applicable Federal and
state laws may not "require " a finding that the jobbers are employees, if
such laws and regulations have the result, as we consider they do, of placing
a large measure of operational control in the Employer, this control must be
accorded its proper weight in resolving the issue , rather than being disre-
garded because its source may be the requirements of public authority And
the fact that the jobbers may enjoy a large latitude in selecting their hours of
work is of little weight in determining whether an employment relationship
exists , many outside salesmen necessarily have such freedom , so do many
outside pieceworkers, and so do many office and factory employees as
"flextime" becomes an important means of retaining the interest of an em-
ployee in his job
tors. Petitioner herein seeks to represent truckdrivers,
crane operators, and contract truckers or jobbers,
who load and transport pulpwood and long logs
from the forest to the Employer's processing plants.
These jobbers, who employ from one to eight em-
ployees, have separate contracts with the Employer
which provide that the jobbers shall receive a predet-
ermined contract rate for all work hauled on trucks
and trailers owned solely by them. The Employer
makes no deductions for taxes or other benefits. Job-
bers hire their own employees, and pay for their own
equipment, including licenses, taxes, insurance, fuel,
repairs, and all other primary expenses.
The Regional Director dismissed the instant peti-
tion finding that the persons sought to be represented
by Petitioner were not employees, but were rather
independent contractors. In support of his conclu-
sion, the Regional Director relied on five factual
findings: (1) jobbers exercise a substantial degree of
freedom in scheduling their hours; (2) they are able
to, and do, work for others; (3) they pay all costs for
use, operation, and maintenance of equipment; (4)
other than being required to weigh their vehicles
when Employer scales are operating, they are subject
to virtually no control by the Employer when operat-
ing; and (5) they hire and fire their own employees.
These factors are uncontroverted and clearly out-
weigh the factors relied upon by the majority for
finding employee status.
Compliance with PUC and applicable state and
Federal laws and regulations does not require a find-
ing that jobbers are employees. Kreitz Motor Express,
Inc., 210 NLRB 27, 29 (1974), and George Transfer &
Rigging Co., Inc., 208 NLRB 494, 496 (1974). Simi-
larly, determinations of the routes over which prod-
ucts are to be transported and an incident wherein an
Employer complaint resulted in a driver's removal
from the Employer's operation are not dispositive of
employee status. Indeed, there is no evidence of a
pattern of Employer discipline. Kreitz Motor Express,
Inc., supra ; George Transfer and Rigging Co., Inc.,
supra.; Conley Motor Express, Inc., 197 NLRB 624,
626 (1972); Fleet Transport Company, Inc., 196
NLRB 436, 438 (1972); and L. C. Sinor, an Individu-
al d/b/a L. C. Smor and Standard Industries, Inc.
(Joint Venture), 168 NLRB 467, 468 (1967).
Moreover, the fact that the camp foremen retain
an efficient operation by "supervising jobbers and
their employees" by suggestions to the jobbers con-
cerning operations on its property, in the absence of
other evidence, is not indicative of Employer control.
Although transporting the Employer's product is un-
doubtedly an integral part of his overall operation,
such a transportation function, without additional
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control over the manner and means of performing In view of the foregoing, I conclude that the job-
that function, does not indicate that the jobbers or bers are independent contractors and the nonowner
their employees are employees within the meaning of drivers are employees of the independent contractor
the Act, or there would be few, if any, trucking com- rather than of the Employer. I would, therefore, dis-
panies in this country. miss the petition.