East Coast Trawling & Dock Co., Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1965

153 N.L.R.B. 1354 (N.L.R.B. 1965)

1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
to join or assist the above -named or any other labor organization , to bargain
collectively through representatives of their own choosing , to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any and all such activities , except to the extent that
such rights may be affected by an agreement in conformity with Section 8(a) (3)
of the National Labor Relations Act, as amended.
WE WILL offer to Dale Fredrickson immediate and full reinstatement to his
former or a substantially equivalent position , without prejudice to seniority and
other rights and privileges , and make him whole for any loss of pay suffered as a
result of the discrimination against him.
All our employees are free to become or remain , or refrain from becoming or
remaining , members of the above -named Union , or any other labor organization.
HUB CITY IRON STORE,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 316
Federal Building , 110 South Fourth Street, Minneapolis , Minnesota , Telephone No.
334-2611, if they have any question concerning this notice or compliance with its
provisions.
East Coast Trawling & Dock Company, Inc. and National Mari-
time Union of America , AFL-CIO, Petitioner. Case No. 4-1X-
6189. July 7,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Officer
Alexander T. Graham, Jr. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Brown and Jenkins].
Upon the entire record in this case, including the briefs filed by the
parties, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act and it will effectuate the purposes of the Act to assert jurisdiction
herein.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. The Petitioner seeks to represent a unit of all crewmembers
employed aboard clamming vessels owned by the Employer, excluding,
153 NLRB No. 106.
EAST COAST TRAWLING & DOCK COMPANY, INC. 1355
however, the captains as supervisors. The Employer contends that
the captains are independent contractors, who lease their boats from
-the Employer and then engage a crew to perform the work, and there-
fore that the crewmen are employees of the captains and not of the
Employer.
The Employer is engaged in the business of handling sea clams for
sale to food processors. In connection with this business, it owns boats
-which are outfitted for the purpose of gathering clams off the coast of
New Jersey. Each boat is under the command of a captain and carries
a crew of two or three. The arrangement between the Employer and
each of the captains, which was oral before January 1964, is now based
on two written agreements, a Demise (Bareboat) Charter and a Sea
(Surf) Clam Purchase Agreement. Each of these contracts is for a
term of 1 month and is automatically renewable for a like period
unless 1 week's notice of termination is given by either party. The
charter provides that the captain shall have virtually complete control
over the operation of the vessel and the hiring and discharge of the
crew.' Under the charter, the captain is obligated to furnish, supplies
for the vessel and to pay the wages of the crew; the captain must also
obtain the Employer's permission to use the boat for any purpose other
than clamming or to place another captain thereon; and the Employer
is to receive a percentage of the gross revenue from the sale of clams as
compensation for the use of its boats.2 The charter further provides
that the Employer is obligated to maintain the vessel in good repair
and to carry insurance. The purchase agreement provides that the
captain will sell all the clams he gathers to the Employer for $1.30 per
bushel; and in the event that the Employer has no need for the clams,
the captain may sell them to other dealers.
The record shows that the boats operate 6 days a week, with the
exception of those days when bad weather, the need for repairs, or other
,emergencies prevent them from going out. The captains hire the crew-
men and set their wages, select the site of the day's clamming operation,
and decide what time to start and when to return to port and whether
the waters are too rough for normal operation. Supplies such as diesel
fuel, chart paper, and propane gas for heaters are purchased by the
captains from the Employer at the dock, which is also operated by the
Employer. The receipts from the sale of clams are deposited in a
checking account, and the captain and crewmembers are paid weekly
by checks drawn on that account.
'The parties stipulated that If the Board finds that the captains are not independent
contractors , they are supervisors as defined In the Act
2 This percentage varies for each of the boats Thus, the record shows that one of the
boats returns 44 2 percent of the gross revenue to the Employer , while another boat re-
turns 47 .6 percent . These percentages are determined by the Employer on the basis of
the particular boat's cost of operation.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer contends that the captains are independent contrac-
tors because, like entrepreneurs, they can by exercise of their own judg-
ment increase their profits from operation of the boats.3 While under
the written agreements between the Employer and the captains it
would appear that the captains can increase their profits by reducing
expenses, the record shows that as a practical matter the captains have
little opportunity to make decisions which will affect their profit and
loss. Thus, while the charter provides that the captains shall furnish
supplies for the boats, in fact the captains make all their purchases
from the Employer, and they do not seek lower prices or more efficient
service elsewhere. In addition, the Employer does not give the captain
an itemized bill for purchase of specific supplies, but merely lumps
together the annual total under "materials and supplies" for Federal
income tax return purposes. Also, while the captains ostensibly have
discretion in setting wages for the crew, the standard wage in the area
is established at either 12 or 18 cents per bushel per man. The captains
do not vary substantially from that schedule, although they occasion-
ally take 2 cents per bushel froln their own compensation and pay it to
a crewman whom they are particularly anxious to keep. Further, the
Employer unilaterally determines the percentage of gross revenue to
be paid by each captain to the Employer for use of the boat, and it also
unilaterally determined the amount of the increase in the sale price of
clams in 1964. In addition, the Employer occasionally sets limits on
the daily catch which are observed by the captains; and on one occasion
when the Employer discovered one of its captains selling clams to a
bait dealer at a higher price, it prohibited this practice. Indeed, at the
hearing the Employer admitted that it guarantees each captain either
59 or 62 cents per bushel for himself and his crew; that if, after the
annual expenses charged to the captain are deducted, the captain does
not realize this amount, the Employer makes up the differences and ful-
fills the guarantee; and that in fact no captain realized a profit during
1963, the last year for which figures were available at the time of the
hearing.
Nor does the record otherwise establish that the captains are inde-
pendent contractors. In the first place, although the captain is com-
plete master aboard his boat, the Board has held in similar circum-
stances that ". . . the existence of an area in which judgment may be
exercised by a skilled worker is not inconsistent, or incompatible, with
the existence of an employer-employee relationship." 4 In any event,
the Employer here has retained substantial control over the business
8 One of the factors considered by the Board in deciding whether an individual is an
independent contractor or an employee is his opportunity to make decisions which will
affect his profit or loss . See, for example , Servette, Inc., 133 NLRB 132, 139 , reversed
313 F. 2d 67 ( C.A. 9) ; Smtth's Van tf Transport Company, Inc. et al. , 126 NLRB 1059,
1060. U.S. v. Silk , doing business as Albert Silk Coal Co., 331 U . S. 704, 719.
4 Southern Shellfish Co , Inc , 95 NLRB 957, 962.
EAST COAST TRAWLING & DOCK COMPANY, INC. 1357
operation.', Thus, the boats are owned by the Employer; the contracts
are for a short term and may be terminated without cause, thus ending
the entire arrangement between the Employer and the captain; 6 the
captains must turn over the entire catch to the Employer at the con-
tract price if the Employer wants it; the Employer pays all costs of
keeping the boats in repair and makes all decisions concerning when
and where major repairs are to be made; the Employer has authority
to set limits on the daily catch and has exercised such authority; the
Employer carries liability insurance and "maintenance and cure"
insurance, which is an admiralty equivalent of workmen's compensa-
tion; the captains are prohibited from using the boats for any purpose
other than clamming without the Employer's permission; and only
the Employer's bookkeeper is empowered to draw checks on the account
into which the proceeds from the sale of clams are deposited. The
record also shows that when the captains, who were working on a 7-day
week, asked for a day off, it was the Employer who decided that they
should all take Saturday off; and that when one of the captains was
injured and absent for 6 weeks, the Employer assigned another captain
to take his place.
In view of the foregoing and the record as a whole, we find that the
captains and the crewmembers are employees of the Employer.? We
therefore find that a question affecting commerce exists concerning
the representation of certain employees of the Employer within the
meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. We find that 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: 8
All crewmembers employed aboard clamming vessels owned by the
Employer, excluding captains.
[Text of Direction of Election omitted from publication.]
'See the cases cited in footnote 3, supra, where the Board also applied the right-of-
control test in determining whether an individual is an employee or an independent
contractor.
e In this latter respect, the instant case is distinguishable from F. H. Snow Canning
Company, Inc., 118 NLRB 284, relied on by the Employer . There, the Board, in finding
that the captains were independent contractors , relied in part on the fact that the
agreements between the owner and the captains were not terminable at will but were
rather for a fixed term.
7 William P. Riggin & Son, Inc., 153 NLRB 1358; Robert Casebeer & Herman Foland,
d/b/a Casebeer & Foland, a Partnership, 149 NLRB 742; Southern Shellfish Co., Inc.,
supra, footnote 4
s In its brief, the Employer contends that, if an election is directed herein, three em-
ployees , a welder, a mechanic , and a man who loads the trucks, should be included in the
unit . However , since these employees are separately supervised and, unlike crewmen who
spend all of their working time aboard the boats , they work on the dock , we find that
they have no community of interest with the crewmen , and we shall, therefore , exclude
them from the unit.