James E. Stark Co.

National Labor Relations Board - Board Decisions

Aug 5, 1941

33 N.L.R.B. 1076 (N.L.R.B. 1941)

In the Matter Of JAMES E. STARK COMPANY and UPHOLSTERERS' INTER-
NATIONAL UNION OF NORTH AMERICA, LOCAL No. 255
Case No. R-;'3542.-Decided August 5, 1911
Jurisdiction : general lumber and dimension-stock industry.
Investigation and Certification of Representatives : existence of question: em-
ployer refused to recognize union; election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding clerical and non-productive supervisory employees.
Person supervising a crew of men engaged in stacking Company lumber
held, despite certain contrary indicia, to be an employee of the Company
and not an independent contractor. Persons working under his supervision
accordingly held to be production and maintenance employees of the Com
pany and hence within the appropriate unit.
Stipulation between Company and union to include in the appropriate
unit the alleged independent contractor if found to be an employee of Com-
pany not given effect where his duties are supervisory in nature.
Mr. Charles Metcalf Crumap, of Memphis, Tenn., for the Company.
Mr. Ray Ile. Grow and Mr. George LaManna, of Memphis, Tenn.,
for the Union.
Mr. Bonnell Phillips, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 1; 1941, Upholsterers' International Union of North
America, Local No. 255, herein called the Union, filed with the Re-
gional Director for the Tenth Region (Atlanta, Georgia) a petition
alleging that a question affecting commerce had arisen concerning the
representation of employees of James E. Stark Company, Memphis,,
Tennessee, 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
April 22, 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 investigation and authorized the-
33 N L. R. B., No. 186.
1076
JAMES E. STARK COMPANY 1077
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On April "25, 1941, the Regional Director issued a notice of hear-
ing, and on subsequent dates amended notices of hearing, copies of
which were duly served upon the Company and the Union. Pursuant
to notice, a hearing was held on May 9 and 10, 1940, at Memphis, Ten-
nessee, before John C. McRee, the Trial Examiner duly designated by
the Chief Trial Examiner. The Company and the Union were rep-
resented by counsel and participated in the hearing. Full opportun-
ity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. No ob-
jections to the introduction of evidence and no exceptions to rulings
of the Trial Examiner were made at the hearing. The Board has
reviewed the rulings made by the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On May 23, 1941, the Company and the Union respectively filed briefs
which the Board has considered.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
James E. Stark Company, a Tennessee corporation, is engaged in
the operation of a general lumber and dimension-stock business at its
plant and yard in Memphis, Tennessee. During the year 1940 the
Company sawed and processed approximately 5,000,000 feet of timber,
of which approximately 20 percent was purchased and shipped to the
plant from points outside the State of Tennessee. During the same
year the Company sold products such as knocked down casket parts,
furniture frames, furniture parts, commercial sewing-machine tops,
and hogshead liners, for approximately $293,725, of which amount
approximately 60 per cent was derived from the sale and shipment of
products to points outside the State of Tennessee.
The 'Company admits, for the purposes of this proceeding only,
that it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Upholsterers' International Union of North America, Local 255,
is a labor organization affiliated with the American Federation of
Labor. It admits to membership employees of the Company.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On or about February 28, 1941, representatives of the Union, claim-
ing to represent a majority of the production and maintenance em-
ployees of the Company, requested the Company,to grant the Union
recognition as the exclusive bargaining agent for all such employees.
The Company refused to recognize the Union until it had been certified
by the Board as the bargaining agent for its employees.
At the hearing the Union submitted a number of application cards
to the Trial Examiner. From the Trial Examiner's statement with
regard thereto, it appears that the Union represents a substantial num-
ber of employees in the unit below found appropriate
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
n
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
J ends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company and the Union are agreed that the production and
maintenance employees of the Company, exclusive of clerical and non-
productive supervisory employees, constitute a unit appropriate for
the purposes of collective bargaining. The Union seeks to include
in the unit some 25 persons working on the Company's property under
the supervision of Gilbert Fisher, with whom the Company has made
arrangements below described for the "stacking" and handling of
lumber. The Company contends that Fisher under the existing ar-
rangement is an independent contractor and .that consequently he
and the men working under him cannot be included in the unit because
there is no employer-employe relationship existing between them and
the Company.
1 The Trial Examiner stated after an examination of the 104 application cards submitted
to him, 96 of the cards being dated between February 1 and May 8 , 1941, and the remaining
10 cards being undated, that all of said cards appeared to bear genuine original signatures.
Seventy-two of the cards bore the names of persons appearing on the Company 's pay roll
for the week ending February 26, 1941. An additional 21 cards bore the signatures of
persons listed on the Company 's pay roll as employees of Gilbert Fisher, whom the Com-
pany claims to be an independent contractor . We below find that these persons are in the
appropriate unit, which thus numbers in all approximately 198 employees.
JAMES E. STARK COMPANY 1079
Fisher and the men working under him are concerned with the
handling of "green" lumber as it comes from the Company's sawmill.
Such lumber is, for the purpose of drying or curing, either alanged
by the crew working under Fisher in "stacks" laid upon foundations
built in the Company's yard,2 or subjected to intense heat in company
kilns, into which the same employees "let down" and from which
they "pull" lumber loaded on kiln cars. After drying, a considerable
amount of lumber is shipped by rail without further processing. The
remainder is taken to the Company's dimension plant for use in the
manufacture of lumber products such as are mentioned in Section I,
above.3
Fisher began service with the Company in 1913. Prior to this
time stacking 4 had been done by day labor under the direction of
the Company's yard foreman, Roeske. In 1913, however, according
to the testimony of Roeske,5 "Gilbert Fisher came by, . . . he was
looking for work, and I asked him if he would not take the stacking
; he agreed, and I gave him the job." The arrangement called
for Fisher to be paid a piece rate computed on the basis of each
thousand feet of lumber stacked.
It is stated in the-record that two men are needed to build a stack
of lumber. Fisher began with one man and himself. Shortly there-
after Fisher obtained two more men to work with him. Today
Fisher's time is spent in the supervision of a crew of approximately
25 persons who, besides stacking, now load kiln cars, see the lumber
through the kilns, load freight cars,(' and perform various other tasks,
sometimes "on loan" to the dimension mill or yard foreman. Fisher
himself receives detailed daily instructions as to what work is to be
performed by the employees under his supervision from the Company's
yard foreman.
The Company contends that the arrangement entered into between
Fisher and Roeske in 1913 constituted an oral contract for the stack-
ing of the Company's lumber, and that this contract, although never
reduced to writing, has continued to date and has been changed only
2 The process of stacking , as described at the hearing, "is simply a matter of putting
the boards in a neat stack with enough drain on the stack to let the water keep away
so that the rain would not stand in the stack, and to put [ stacking ] sticks one over the
other in a straight line so that the lumber will not be made crooked by sticks being
put in the pile in an irregular manner."
8 The Company also performs a certain amount of "custom dry kilning" by which is
apparently meant kiln drying lumber owned by other persons or firms which pay the
Company a fee for the service.
4 The Company did not operate kilns at this time.
5 Roeske retired in 1931. He was replaced by another yard foreman who, as hereinafter
detailed , continues to issue instructions to Fisher.
6 Lumber taken from the kilns for shipment is loaded on freight cars by the men under
Fisher's supervision . Lumber taken from the stacks in the yard is handled for shipment
by employees under the supervision of the yard foreman.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the addition of other types of work to be performed and by
alterations in the rate to be paid per thousand feet of lumber stacked.
In contending that the relationship established in 1913 and con-
tinued to date constituted Fisher an independent contractor, the
Company urges our consideration of certain presently existing facts :
that Fisher has sole authority to hire and discharge the employees
working under him; that prior to 1937 the Company had no knowledge
of the number or names of such employees, having since acquired such
knowledge only for the purpose of keeping certain tax records for
Fisher; that Fisher receives a lump sum for the entire work performed
by the crew working under him, and that Fisher and not the Com-
pany establishes and determines the compensation which will be paid
to each individual in the crew.7
The record further establishes 'and the Company relies upon the
fact that Fisher files Social Security and Tennessee unemployment
compensation tax returns as an employer of the persons working
under him ; that such persons work with tools supplied by Fisher ;
that they are not listed on the Company's regular pay-roll records,
nor are they governed by the hours of work and certain other con-
ditions of employment established for regular company employees.
We are required in administering the Act and in effectuating its
policies to inquire into the substance of relationships." As the Board
has before stated in another case involving the question of alleged
independent contractors : 9 "We have had occasion to point out that
the statutory definition of the word `employee' is of wide scope.
As defined in the Act the term embraces `any employee' that is, all
,employees in the 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 compre-
hend securing to the individual the rights guaranteed and the pro-
tection afforded by the Act. The matter is not conclusively settled
by a contract which adverts to and purports to establish the status
of such person other than as employees."
Under the circumstances' above described we are satisfied and find
that the purported contract made between Fisher and Roeske in 1913
was in effect an ordinary hiring which constituted Fisher an employee
of the Company'1° Since the terms of the purported contract have
i As a matter of practice it is stated in the record that Fisher deducts 5 cents from
the price paid him by the Company for each thousand feet of lumber stacked and pays
the rest over to the individuals who did the physical work of stacking the lumber.
8 See Matter of The Park Floral Company and United Greenhouse and Floral Workers
Union No 510, etc, 19 N L. R B. 403, 409
1In Matter of Seattle Post-Intelligencer Department of Hearst Publications, Inc, and
Seattle Newspaper Guild. Local No 82, 9 N L R B 1262
18 It is not shown in the record nor is it to be presumed that the Company's yard foreman
had the authority to enter contractual relations on behalf of the Company with an inde-
pendent entrepreneur It is shown however that Roeske had, and the present yard foreman
now has, the power to hire and discharge company employees.
JAMES E. STARK COMPANY 1081
been altered only by the addition of other duties and by changes in
the compensation given for the stacking of lumber, it would appear
clear that Fisher remains in an employee status. It is significant,
that revisions in the piece rates for stacking have occurred at times
when other rates and wages in the plant have been increased. The
record is utterly lacking in evidence that such changes have occurred
during the course or as a result of negotiations between Fisher and
the Company looking towards the renewal or modification of the
purported contract.
Fisher has been engaged in his present capacity for 28 years, during
which period he has not been elsewhere employed. Many of the per-
sons working under his supervision also have serbice records of con-
siderable length. Their work constitutes an integral part of the Com-
pany's enterprise. Unlike tasks commonly engaged in by independent
contractors and their employees, the work of stacking is unskilled in
nature. The record demonstrates that Fisher has not the financial
stability often demanded of contractors." The record further reveals
that many of the additional duties imposed upon Fisher since 1913
and performed by persons under his supervision cannot be compen-
sated for on a piece-work basis, and that the employees performing
such duties are therefore paid hourly wages based on rates prevalent
throughout the plant. Although Fisher supervises much of this work,
be receives no compensation therefrom, the full amount of their hourly
earnings going to members of the crew. Nor is it revealed that any
provision was made in the purported contract at the time of the
imposition of such added duties for any indirect increase in com-
pensation'to Fisher for the performance of his expanded supervisory
duties. We are of the opinion and find that the relationship between
the Company and Fisher was in its origin and has since been in
fact and within the contemplation of the parties that of employer-
employee. This conclusion becomes enforced when it is considered
that the purported oral contract, the only terms of which specifically
revealed concern the matter of compensation, exists only by will and
not. for any specified period of time. Thus the Company's right to
terminate summarily Fisher's purported contract vests in the Com-
pany a power of control similar to and not less than its right to
"As before stated , Fisher files Social Security and Tennessee unemployment insurance
tax returns as the employer of the persons working under his supervision Allegedly due
to the inability of Fisher to keep the required records for the computation of these taxes,
the Company , beginning in 1937, undertook , without revealed compensation , to keep such
records and to execute required returns for Fisher Social Security taxes in the amount
due from the employer of the men working under Fisher have been deducted from the
lump sum paid to Fisher for stacking Unemployment compensation taxes covering these
,employees have however been paid by the Company although in so doing it has accordingly
debited Fisher on the company books. While the amount of such debits now approximates
.$600, the Company has never asked Fisher for repayment . Fisher ' s weekly earnings,
as shown by the record, after deducting for payments to his crew, rarely exceed and
.often fall beneath $35 . Fisher, although expressing ignorance of whether payment would
be required of him, stated that the only method by which the Company could exact such
repayment would be for it to deduct from his weekly pay check
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control the activities of any employee by threatened or actual
discharge.12
We find that Gilbert Fisher and the persons working under his
supervision are employees of the Company within the meaning of
Section 2 (3) of the Act.13
° We accordingly find that the employees working under Fisher's
supervision, being production and maintenance employees of the Com-
pany, constitute a part of the appropriate unit. The Company and
the Union entered into a stipulation at the hearing that Fisher should
be included in the appropriate unit in the event he was found to be
an employee of the Company. We shall not give effect to this stipu-
lation. The Company president stated at the hearing and the record
otherwise indicates that most if not all of Fisher's time is spent in
supervision. He, as before stated, has the authority to hire and dis-
charge employees under his supervision, a power other, supervisory
employees below excluded from the unit have over the employees
working under their direction. We shall exclude Fisher from the
unit.l4
We find that the production and maintenance employees of the
Company, including those employees working under the supervision
of Gilbert Fisher or any successor to the position now occupied by
Gilbert Fisher, but excluding clerical and non-productive supervisory
employees and Gilbert Fisher or any successor to him, constitute an
appropriate unit and 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 effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion can best be resolved by, and we shall accordingly direct, an elec-
tion by secret ballot.
The employees in the appropriate unit whose names appear on
the Company's pay roll next preceding the date of this Direction of
Election and those employees who were working during such pay-roll
period under the supervision of Gilbert Fisher shall be eligible to
' See Matter of H. F. Wilcox Ovl and Gas Company, Wtilcoce Refining Division and/or
W. M. Fraser and Oil Workers International Union, Local 257, 28 N. L. It. B. 79.
13 The Company contends that it lacks the control over Fisher's crew which is a necessary
requisite to an employer relationship We have before held and now hold that where
persons are found to be employees of a company, their subordinates, even though hired by
them, are employees of the Company. Matter of The Park Floral Company, supra. The
Company, if for no other reason than the fact that it has, as above pointed out, the
power summarily' to dismiss Fisher from its employment, is vested with the ultimate
control over the actions of the employees working under him. That the Company's power
of control may not in fact have been exercised is immaterial, since the right to control
rather than the actual exercise of that right is•the touchstone of the employer-employee
relationship.
14 See Matter of The Connor Lumber d Land Co. and International Woodworkers of
America, Local No. 125 (0. I. 0.), 11 N. L. R. B. 776, 787.
JAMES E. STARK COMPANY 1083
vote in the election, subject to such limitations and additions as are
set forth in the Direction.
Upon the basis of; the above findings of fact and upon 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 James E. Stark Company, Memphis, Ten-
nessee, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act.
2. The production and maintenance employees of the Company,
including those employees working under the supervision of Gilbert
Fisher or any successor to the position now occupied by Gilbert Fisher,
but excluding clerical and non-productive supervisory employees and
Gilbert Fisher or any successor to him, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the 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 authorized by the Board
to ascertain representatives for collective bargaining with James E.
Stark Company, Memphis, Tennessee, 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, under the direction and super-
vision of the Regional Director for the Tenth 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 the
production and maintenance employees employed by James E. Stark
Company, during the payroll period immediately preceding the date
of this Direction of Election, including those employees working
under the supervision of Gilbert Fisher or any successor to the posi-
tion now occupied by Gilbert Fisher, and employees who did not
work during such pay-roll period because they were ill or on vacation
or in the active military service or training of the United States, or
temporarily laid off, but excluding clerical and non-productive super-
visory employees and Gilbert Fisher and those who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by Upholsterers' International Union of North
America, Local No. 255, for the purposes of collective bargaining.