Int'l Organization of Masters, Mates, Etc.

National Labor Relations Board - Board Decisions

Feb 26, 1964

146 N.L.R.B. 116 (N.L.R.B. 1964)

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. All our employees are free to become or remain members of the above-named
or any other labor organization.
EMPLE KNITTING MILLS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any question concerning this notice or compliance
with its provisions.
International Organization of Masters, Mates and Pilots of
America, Inc., AFL-CIO; Great Lakes District, Local No. 47,
International Organization of Masters, Mates and Pilots of
America,, Inc., AFL-CIO and Chicago Calumet Stevedoring
Co., Inc., Charging Party
International Organization of Masters, Mates and Pilots of
America, Inc., AFL-CIO; Great Lakes District, Local No. 47,
International Organization of Masters, Mates and Pilots of
America, Inc., AFL-CIO and P & V Maritime Corporation,
Charging Party
'International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO; Great Lakes District , Local No. 47,
International Organization of Masters, Mates and Pilots of
America, Inc., AFL-CIO and North Pier Terminal Company,
Charging Party
International Organization of Masters , Mates and Pilots of
America, Inc., AFL-CIO, and International Vice -President
Captain Rolla R. Johnson and Cleveland Stevedore Company,
Lederer Terminal Warehouse Company , National Terminals
Corporation and Shipping Federation of Canada , Charging
Parties. Cases Nos. 13-CC-168, 13-CC-169, 13-CC-170, and
13-CC-180 (formerly 8-CC-76). February 26, 1964
SECOND SUPPLEMENTAL DECISION
• _ On October 23, .1963, the Board issued its Supplemental Decision
in. this proceeding,' in which it dealt with the two questions posed by
the Circuit Court of Appeals for the District of Columbia on an order
of remand of December 20, 1960. Those questions concerned, (1)
whether the International Organization of Masters, Mates and Pilots
of America, Inc., AFL-CIO, herein called MMP, possessed a member-
ship which included, in substantial. number or proportion, persons who
are-employees. within the meaning of Section 2(5) of the Act, and
1144 NLRB 1172. The original decision is reported in 125 NLRB 113.
146 NLRB No. 19.
INT'L ORGANIZATION OF MASTERS, MATES, ETC. 117
-,whether '.such employee members, if any, participated in MMP" in 'a
substantial and meaningful manner; and (2) whether the membership
of Local 47 of MMP included "employees" whose participation in the
affairs of Local 47 and MMP was substantial and meaningful.
In its Supplemental Decision, the Board concluded that MMP's
membership included individuals in substantial number who were "em-
ployees" and that their participation in MMP was substantial and
meaningful? The Board also found that Local 47 was comprised of
430 members, of whom 12 were pilots. The Board concluded, without
deciding whether the pilots in Local 47 were employees within the
meaning of the Act,3 that their number was not substantial in relation
to the total membership of MMP. However, the Board found that
Local 47 was responsible for the secondary misconduct charged under
-Section 8(b) (4) (A)4 as an agent of MMP.5
On January 31, 1964, the court of appeals entered a second order
of remand in this proceeding in which it directed the Board to make
additional findings of fact as to whether the pilot-members of Local
-47 are "employees," and if so, whether their number in proportion to
total membership of the Local is substantial and whether their par-
ticipation in Local 47 is substantial and meaningful.
Pursuant to this remand, we have carefully reviewed the record.
On the basis of the facts hereinafter set forth, which we find are sup-
ported by the record as a whole, we conclude, contrary to the dissent,
that the pilot-members of Local 47 do not occupy the status of em-
ployees within the purview of Section 2(5) of the Act for the follow-
ing reasons.
A substantial portion of the record in this proceeding is devoted
to the duties of the pilot-members of Local 47, who operate on the
Great Lakes. The facts concerning the duties of these pilots boil
themselves down to these. The services of the pilots are utilized pri-
marily by foreign shipping operators to navigate their vessels to the
various ports on the Great Lakes, mainly due to the requirements of
the maritime insurers . These pilots are specially trained in the navi-
gational hazards which exist on the lakes through schooling, ex-
perience, and their ability to read and understand the various charts
and maps pertaining to the area, as well as through their understand-
ing of the directional purpose of the various blinking lights dotting
2 This conclusion was predicated upon facts stipulated to by the parties which showed
that, of the approximately 11,000 individuals who constituted the membership of MMP at
the time of the events here involved , between 170 and 291 were concededly statutory
employees who held membership in the AMW locals, and who, by virtue of the pertinent
provisions of MIIP's constitution , shared in - MMP's affairs with meaning and substance.
3 The parties stipulated that, unless the Board found that the pilots of this Local were
"employees ," the Local was composed exclusively of supervisors . It appears , from the
:stipulation that the remaining members of Local 47 are classified as masters or mates who
the parties agree are supervisors within the meaning of the Act.
4A9 it existed prior to ' the enactment of the Labor-Management Reporting and Dis-
closure Act of 1959.
5 ,See authorities cited in 144 NLRB 1172.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the lakes. They are licensed, seagoing personnel, who have their
names placed on a "tour de role" for assignment. When a foreign
vessel enters the St. Lawrence Seaway, the captain of the ship contacts
the ship operator's domestic agent to arrange for the services of a
pilot. Normally, the pilot who is retained for the particular voyage
is unknown to the captain or his officers, his selection being determined
by the position of his name on the availability list. When his name
is reached for assignment, he is dispatched to the vessel with his
various charts and maps.
After reporting to the captain, and after the ship is brought under-
way, the pilot stations himself in the wheelhouse and gives orders to
the helmsman as to course, and also uses the ship's telegraph to give
orders to the engineroom as to the requisite speed with which the
vessel should proceed. When conditions require, a pilot may take
over the wheel to insure the safe passage off the vessel. Moreover,
pilots have been known to complain about the insobriety of helmsmen
in the wheelhouse and have effectively recommended the discipline of
such seamen to the captain. While the captain or a ship's officer may
countermand an order given by the pilot to a helmsman or to the
engineroom, this is done only in extraordinary circumstances, such
as when a pilot appears to be unfit for duty.
Because of the peculiarities of maritime law, all orders given aboard
ship technically emanate from the captain although he may not per-
sonally issue them. However, because of the special navigational
skills of the pilots, the captain normally does little if anything with
respect to the navigation of his vessel while the pilot is aboard, and
it.does not appear that the captain in any way interferes with or
supervises the means or methods by which pilots take the vessels to
their ultimate destinations.
When the lakes' voyage is concluded and the pilot is dropped, the
captain certifies the amount of time spent aboard by the pilot and
so informs the operator of the vessel who in turn compensates the
pilot. So far as appears, no social security or other taxes are with-
held from such compensation. `
In view of the foregoing and the record as a whole, we conclude and
find that the pilots who were members of Local 47 at the times relevant
to this proceeding were either independent contractors or supervisors
within the meaning of the Act, and were not "employees." 6
'As we have found that the pilot -members of Local 47 are' not "employees " within the
meaning of the Act, it would appear that a finding as to the second part of the court's
question is unnecessary . However, should the court disagree with this finding and con-
clude that the pilots are "employees," we are of the opinion and would find that their
number in proportion to the total membership of Local 47 Is substantial and that they
participate in the affairs of Local 47 in a substantial and meaningful manner. We predi-
cate this conclusion upon the following : ( 1) The fact that 12 of the 430 members of
Local No. 47 at the times relevant to this proceeding were pilots ; and•(2 ) the follow-
ing statement in the stipulation of facts signed by the parties and made a part of the
record herein : "Pilots who are members of Local 47 participate fully as members of Local
No. 47 . . . and have participated and do participate in the proceedings of Local No. 47."
INT'L ORGANIZATION OF MASTERS, MATES, ETC. 119
MEMBERS BROWN and JENKINS, dissenting in part :
We agree with the majority that the pilots comprise a substantial
part of Local 47 and participate in the affairs of the Local in a substan-
tial and meaningful manner. However, we also would find that the
pilots are "employees" within the meaning of the Act.
The pilots are hired because of their special knowledge of local cur-
rents, their familiarity with the intricacies of maneuvering the ships
through canals, and their ability to dock the vessels at various Great
Lakes ports. They cannothire or fire any crew member or relieve any
seaman from his duty. The pilots are not permitted to discipline the
crew members or to assign them to 'various jobs aboard ship. Any
recommendation of discipline by the pilot, for example involving a
helmsman who has refused an instruction, is thereafter independently
evaluated by the captain. The pilot appears on the bridge only when
his special knowledge may be utilized. Thus, in open waters, the
captain gives all the directions concerning navigation, and the pilot at
that time leaves the bridge. However, when the pilot himself is direct-
ing the ship's movement, either the captain or watch officer is at all
times on or near the bridge. Either may countermand any instruction
given by the pilot if in his judgment it is not proper under the circum-
stances. The record reveals that such countermand is not limited to
"extraordinary circumstances" involving a pilot's fitness for duty, but
may occur whenever the captain's independent judgment and knowl-
edge indicates another procedure is more feasible. Furthermore, even
the watch officer can accept or reject speed and course instructions
given by the pilot. If a pilot is drunk while on the bridge, the watch
officer has the authority to relieve him of his duties. All this is in
line with the fact that the captain is in full command of the ship, and
responsibly directs every aspect of the voyage?
In the performance of their jobs many classes of employees are
authorized to give directions, as the pilots here, but such authority
without more does. not constitute the employee a supervisor. See, e.g.,
N.L.R.B. v. Esquire, Inc., 222 F. 2d 253, 258 (C.A. 7), holding that a
sound mixer who signals the employee operating a boom microphone
is not responsibly "directing" another; The Baltimore Transit Com-
pany, et al., 92 NLRB 1260,1263-1264, holding that radio dispatchers,
who issue directions to operating personnel "over the movement of the
equipment," from which "the direction of personnel occurs only as an
incidental result," are not supervisors; F. M. Reeves and Sons, Inc.,
114 NLRB 1243, 1244-1245, holding that an operator of a crusher is
not a supervisor over truckdrivers to whom he gives "routine" direc-
7 "We repeat , a pilot is employed because of his presumed knowledge of currents , hidden
obstructions, and other local dangers to navigation. He is in charge so far as giving
steering directions, and it is customary for him to dock the ship , but the master is always
in command of. his vessel and has the right to displace the pilot at any time."' +'The
Framlington Court, et al. v. United British Company, 69 F. 2d 300 , 306 (C .A; -5).
120 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
tions; Union Street Railway Company, 93 NLRB 782, 784, 785, hold-
ing that inspectors who issue instructions to busdrivers and others con-
cerning schedules, routes, speed, equipment, etc., are not supervisors;
Capital Transit Company, 98 NLRB 141, 144, 145, holding the same;
New England Transportation Company, 90 NLRB 539, 540, holding
that dispatchers performing similar duties are not supervisors.
In the transportation industry, of which shipping is part, the Board
has held that employees whose "direction and control," like the pilots
here, "is concerned primarily with equipment rather than personnel,,
and any direction or-control of personnel is incidental thereto" do not
"responsibly direct" employees within the meaning of the Act and arel
not supervisors, absent other indicia of supervisory authority. Capi-
tal Transit Company, supra, at 145; Union Street Railway Company,
supra, at 785; Baltimore Transit Company, 92 NLRB 688, 692; Balti-
more Transit Company, supra at 1264; New England Transportation
Company, supra, at 540.
On enforcement of an order to bargain in a unit including "inspec-
tors" (see 105 NLRB 582), the Court of Appeals for the District of
Columbia in N.L.R.B. v. Capital Transit Company, 221 F. 2d 864, at
pp. 866-867, agreeing with the Board, stated :
There is evidence in the record which indicates that the control
exercised by inspectors relates primarily to equipment. It tends
to show that the inspectors' primary function is to keep' traffic
rolling, in the event of tie-ups, by making ad hoc alterations of
routes and schedules. To the extent that their direction of the,
operators is related to that function, (e.g., ordering operators to.
drive new routes), it might reasonably be viewed as incidental to
their control over the movement of the vehicles.
The court, however, remanded the case to the Board to consider other
alleged duties of the inspectors "not so closely related to traffic control
as to be merely incidental thereto," including claims that " inspectors"
could "relieve from duty any operator" violating rules or driving
recklessly (ibid., at 867). On remand, the Board (114 NLRB 617),
reaffirming that "mere title" or "sporadic" authority does not establish
supervisory status and that the supervisory power must be "real,"'
found that the "inspectors" possessed no "real supervisory authority"
and reaffirmed its original conclusion that they were not supervisors
(ibid., at 629). On return to the court of appeals , this decision was;
affirmed per curiam (38 LRRM 2681).
We accordingly conclude that the pilots in this case are more akin
to technically skilled employees giving sporadic instructions inPi-
dental to. their navigational function than they are to supervisors
performing the, basic act of supervision . Cf. N.L.R.B. v. Southern
Bleachery k Print-Works, Inc., 257 F. 2d 235, 239 (C.A., 4), cert.
denied 359'U .S. 911.
CLARK PRINTING COMPANY, INC. 121
Nor is the pilot an independent contractor.' Our guide in deter-
mining such status is the application of the "right of control" test.
If the person for whom the services are performed reserves the right
to control not only the end to be achieved but also the means by which
the result is to be attained, an employer-employee relationship exists.
Put another way, as Judge Learned Hand stated, "The test lies in the
degree to which the principal may intervene to control the details
of the agent's performance; and that in the end is all that can be
said . . . ." 9 The record, as indicated above, fully reveals that the
pilot's temporary direction of the helmsman and other crew members
is always subject to the captain's continuous independent evaluation
of the circumstances surrounding the navigation of the ship. The
pilot's functions are integrated into the shipowner's maritime opera-
tions in a manner characteristic of an employer-employee relation-
ship (see Restatement of the Law of Agency, 2d, sec. 220(2) (h),
p. 489) and, in our opinion, these pilots are employees, "as a matter of
economic reality." U.S. v. Silk, 331 U.S. 704, 713.
Furthermore, it would appear that in the application of our super-
visory and independent contractor standards to the peculiar nature of
the maritime setting of this case, we should consider what appears to
be the somewhat different and more rigid aspects of discipline and
responsibility existing aboard ship. Thus, although certain testi-
mony, standing alone, may point to some form of supervisory or
independent contractor status, the record taken as a whole persua-
sively indicates that the pilots are "employees" functioning under the
strict authority and responsibility of the captain and should remain
subject to the benefits and obligations of the Act.
8 Congress broadly viewed as employees persons who "work for wages or salaries under
direct supervision ," and as independent contractors persons who "undertake to do a job
for a price , decide how the work will be done, usually hire others to do the work, and
depend for their income not upon wages, but upon the difference between what they pay
for goods , materials and labor and what they receive for the end result, that is, upon
profit." H. Rept 245 on H.R. 3020 , 80th Cong., 1st sess., p. 18.
8 Radio City Music Hall Corp. v. U.S., 135 F. 2d 715, 717 (C.A. 2).
Clark Printing Company, Inc. and Amalgamated Lithographers
of America , Local No . 25, affiliated with Amalgamated Lithog-
raphers of America
Clark Printing Company, Inc. and Amalgamated Lithographers
of America, Local No. 25, affiliated with Amalgamated Lithog-
raphers of America . Cases Nos. 17-CA-2138 and 17-RC-4050.
February 26, 1964
DECISION, ORDER, AND CERTIFICATION OF
RESULTS OF ELECTION
On September 4, 1963, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that the
146 NLRB No. 10.