William P. Riggin & Son, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1965

153 N.L.R.B. 1358 (N.L.R.B. 1965)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William P . Riggin & Son, Inc. and National Maritime Union of
America, AFL-CIO, Petitioner
Robert Robbins and National Maritime Union of America, AFL-
CIO, Petitioner . Cases Nos. 4-RC-6272 and 4-RC-69273. July 7,.
1965
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the National'
Labor Relations Act, as amended, a consolidated hearing was held
before Hearing Officer Alexander T. Graham, Jr. The Hearing Offi--
cer'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
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
Upon the entire records in these cases, including a brief filed by the
Petitioner, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act, and it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The labor organization involved claims to represent certain
employees of the Employers.
3. In Case No. 4-RC-6272, the Petitioner seeks to represent a unit
consisting of all employees aboard clamming vessels owned by William
P. Riggin & Son, Inc., but excluding the captains as supervisors. In
Case No. 4-RC-6273, the Petitioner seeks to represent a bargaining
unit consisting of all employees aboard clamming vessels owned by
Robert Robbins, but excluding the captains as supervisors. The
Employer in each case contends that the captains are independent con-
tractors who lease their boats from the Employer and then engage a
crew to perform work, and, therefore, that neither the captains nor
the crewmen are its employees.
William P. Riggin & Son, Inc., hereinafter sometimes called Riggin
& Son, is a New Jersey corporation owning commercial fishing boats
which are engaged in the gathering of sea clams off the coast of New
Jersey. Riggin & Son sells most of these clams to Riggin & Robbins,
Inc., a clam processing firm. Robert Robbins is an individual who
owns commercial fishing boats which are also engaged in the gathering
of sea clams off the coast of New Jersey. Robert Robbins likewise sells
most of his catch to Riggin & Robbins, Inc.'
1 Riggin & Son and Robert Robbins are referred to herein as the Employers The record
establishes that the arrangements between the Employers and captains , the relationship
of the Employers to captains and crewmembers , and the manner of operation of the clam
boats by the Employers and captains , are identical in both of the cases herein
153 NLRB No. 107.
WILLIAM P. RIGGIN & SON, INC. 1359
The relationship between the Employers and the captains is gov-
erned by oral arrangements. Under these arrangements, which are
terminable at will by either party, the Employer agrees to furnish to
the captain the boat and equipment, and the captain agrees to oversee
the clamming operation. The clam processors pay the Employers
$1.30 per bushel for the clams, from which amount the captain receives
62 cents per bushel. From this amount, the captain retains 26 cents
per bushel and pays 36 cents per bushel to the crew, 12 cents to each
crewmember if it is a three-man crew, and 18 cents to each crewmember
if it is a two-man crew. The balance of the $1.30 is retained by the
Employers as compensation for use of the boats. The Employers pay
all other expenses of the operation, including the cost of repairs, fuel,
chart paper, liability insurance, and "maintenance and cure" insurance,
which is an admiralty equivalent of workmen's compensation.
The boats operate 6 days a week, except for those days when bad
weather, the need for repairs, or other emergencies make it impossible
for them to engage in clamming operations. The captains have virtu-
ally complete control over the hiring and discharge of the crew and
over all aspects of the clamming operation. The captains decide if the
weather is too dangerous to work on any particular day; they select
the site of the day's clamming operation, determine the hours of work
of the crewmen, and order all the necessary supplies, charging them to
the Employer's accounts? Each captain has a separate checking
account into which Riggin & Robbins, Inc., deposits funds representing
the share of the captains and the crew of the proceeds from the sale of
clams. The balance of the proceeds is paid directly to the Employers.
The bookkeeper of Riggin & Robbins, Inc., who is authorized to sign
the captain's name on checks, draws checks each week on the captain's
account, payable to the captain and to each crewmember. When
Riggin & Robbins, Inc., is unable to use the entire catch, the Employers
will arrange that the surplus clams be sold to some other buyer. The
captains are free to sell their catch elsewhere only on the rare occasion
that the clams are not sold to Riggin & Robbins, Inc., and the Employ-
ers do not furnish another buyer. The sales price for clams is nego-
tiated between the Employers and the buyers without participation by
the captains. On occasion, the Employers have set limits on the daily
catch, and the captains normally observe these limits. The boats are
used exclusively for digging clams, except that the Employers may
instruct the captains to dredge for oysters during the period that the
State of New Jersey opens its oyster beds.
All parties agree that prior to November 1964, the captains and
crewmembers were employees of the Employers. At that time, the
crewmembers were paid weekly salary and the captains received 20
2 The parties stipulated that if the Board finds that the captains are not independent
contractors , they are supervisors as defined in the Act.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
percent of the gross sales; 3 the Employers paid all expenses, carried
insurance, controlled the disposition of the clams, and determined the
compensation of the crew and the captains; and the captains had con-
trol over the crew, the vessel, and the clamming operation. The only
significant change in the arrangement is that the captains now receive
a flat sum per bushel, rather than a percentage of sales, and the crew-
members now receive a flat sum per bushel rather than a weekly salary.
We find no merit in the contention of the Employers that the cap-
tains are independent contractors and not employees. We note initially
that the arrangement between the Employers and the captains leaves
little room for the captains to make decisions which will affect their
profit and loss.4 The captains are not free to sell their clams to the
highest bidder, but must deliver them to a buyer designated by the
Employers at a price over which they have no control. Because the
Employers pay all expenses of the clamming operation, any savings
effected by the captains' more efficient or economical management of
their boats does not increase the captains' compensation but inures
entirely to the benefit of the Employers. At the same time, because
the captains are paid a flat sum per bushel of clams, they do not risk
any losses which may come from inefficient management on their part.
Further, while the captains ostensibly have discretion to set wages for
the crew, since the standard wage in the area is well-established, the
captains are not in a position to increase their income by varying sub-
stantially from that schedule. As a matter of fact, the only way in
which a captain may increase his income is by catching more clams and
even that is subject to the Employers' authority to set a limit on the
daily catch.
Further, while the captain is, in accord with the tradition of the
sea, complete master aboard his boat, the Employers have retained the
sort of control over the business operation which is characteristic of an
employment relationship.5 This control is established by the facts
that the Employers own the boats, the agreements between the Employ-
ers and the captains are oral and terminable at will, the Employers
decide to whom the clams will be sold, the Employers have authority
to set daily limits on the catch and have exercised such authority, the
sale price of the clams is set by negotiation between the Employers
8 On the basis of a sales price of $1.30 per bushel, the captains , under the old arrange-
ment, would have received 26 cents per bushel as their compensation . Under the new
arrangement , they also receive 26 cents.
4 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 and loss . See, for example , Servette, Inc., 133 NLRB 132, 139, reversed
313 F. 2d 67 (C.A. 9) ; Smith's Van & Transport Company, Inc ., et at., 126 NLRB 1059,
1060 ; U.S. v Silk, doing business as Albert Silk Coal Co ., 331 U.S. 704, 719.
s The fact that the captains, because of their skill and experience , are permitted to
exercise their own judgment In connection with the daily operation of the boats, does not
preclude our finding that they are employees rather than independent contractors . South-
ern Shellfish Co., Inc., 95 NLRB 957, 962.
HUMBLE OIL & REFINING COMPANY 1361
and prospective buyers, the Employers make all decisions concerning
when and where major repairs are to be made to the vessels, and the
Employers pay the expenses of the entire operation.
In view of the foregoing and the entire record in these cases, we con-
clude that the captains are not independent contractors, but employees
of the Employers, as are the crewmembers.6 We therefore find that
questions affecting commerce exist concerning the representation of
certain employees of the Employers within the meaning of Section
9(c) (1) andSection2(6) and (7) of the Act.
4. The parties are otherwise in agreement and we find that the
following employees of the Employers constitute separate units appro-
priate for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
(1) In Case No. 4-RC-6272, all employees aboard clamming vessels
owned by William P. Riggin & Son, Inc., excluding the captains.
(2) In Case No. 4-RC-6273, all employees aboard clamming vessels
owned by Robert Robbins, excluding the captains.
[Text of Direction of Elections omitted from publication.]
G East Coast Trawling & Dock Company , Inc., 153 NLRB 1354 ; Robert Casebeer &
Herman Foland, d/b/a Casebeer & Foland, a Partnership , 149 NLRB 742; Southern Shell-
fish Co., Inc., supra, footnote 5.
Humble Oil & Refining Company, Petitioner and Industrial Em-
ployees Association, Inc.,' and Local Union No. 553, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America .2 Case No. f9-UC-R.
July 8,1965
DECISION AND ORDER
Upon a petition for clarification duly :filed under Section 9(b) of
the National Labor Relations Act, as amended, a hearing was held
before Hearing Officer Jordan Ziprin. All parties appeared and were
given full opportunity to participate at the hearing. Thereafter, Peti-
tioner and Local 553 filed briefs in support'of their respective positions.
The National Labor Relations Board has considered the Hearing
Officer's rulings made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
i Hereinafter called Industrial.
z Hereinafter called Local 553.
153 NLRB No. 111.
796-027-66-vol. 153-87