Lane v. Industrial Accident Commission

VAN DYKE, P. J.

This is a proceeding in mandate to review an order of the Industrial Accident Commission in favor of petitioners’ employer, Paul Bunyan Lumber Company, and its insurance carrier, State Compensation Insurance Fund.

There is no substantial conflict as to the facts. Petitioners have been regularly employed as fallers by the Paul Bunyan Lumber Company in Susanville, California, for more than 10 years. During that period each resided in Susanville, California, the site of the mill and office of said respondent. At the opening of the 1957 logging season petitioners reported at the employer’s office in Susanville. Their first falling operation was in an area known as Hog Flat, which is situated 8 or 9 miles northwest of Susanville. Fallers work in pairs and there were five pairs of fallers directed to work in the Hog Flat area. Under their contract of employment they are required to provide their own working equipment which consists of gasoline powered chain saws which weigh approximately 40 pounds, axes, wedges, hand tools and gasoline to power the saws. The company, as a part of the contract of employment, or as an incident thereto, rents the chain saws from the fallers at a rate of 50 cents per one thousand board feet cut during straight time employment. The fallers work in a different portion or area of a logging site from other woods employees. The company has exclusive control over production and good

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practice dictates that the fallers keep at least one million board feet ahead of the other woods employees to assure a continuous operation. All of the woods employees, including fallers, work an eight hour day, commencing at 7 o ’clock each morning and laying off at 3:30 each afternoon, with one-half hour for lunch at noon. The fallers receive compensation at the rate of Two and 08/100 ($2.08) Dollars per one thousand board feet of timber cut during the regular work day. In addition, all woods employees receive credit for each hour they are on the job for the purpose of calculating the number of days vacation with pay to which each would be entitled. All the other woods employees are paid on a straight hourly wage basis. Customarily the fallers transported their tools and gasoline to the area to be worked by them and left them there until their work was done in that area, that is, the tools were not taken back and forth at the end and the beginning of each day. Sometimes when the saws required special attention a saw would be taken back for that purpose and returned to the job. All of the other woods employees were furnished transportation by the employer to and from work in a company owned truck. An exception was made, however, with respect to the fallers and the evidence is that this was dictated by the fact that they often had to transport their tools, including the saws and cans containing gasoline. Gasoline, under a safety order of the commission, could not be transported in a truck used to haul employees. It appears that the requirement the fallers furnish their own transportation stems mainly from this peculiarity of their employment which involved the use and transportation of power-driven saws.