Maine Fisheries Corp.

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD materials, and labor and what they receive for the end result, that is, upon profits." Applying such standards to the instant case, we conclude that the news vendors sought by the Petitioner in this case are independent contractors, and are not employees within the meaning of the Act.12 In view of the foregoing, we find that no question affecting com- merce exists concerning the representation of employees of the Em- ployer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. Accordingly, we shall dismiss the petition filed herein, without prejudice however to the Petitioner's filing, if it so desires a petition seeking to represent the "wholesalers" as to their "wholesaling" activities only, concerning which they are admittedly employees. Order Upon the basis of the above findings of fact, and upon the whole record in this proceeding, the National Labor Relations Board hereby orders that the petition filed herein, be, and it hereby is, dismissed. MEMBER HOUSTON took no part in the consideration of the above Decision and Order. "80th Congress , 1st Session , House of Representatives , Report No 245, April 11, 1947, page 18. n Hearst Consolidated Publications, Inc., 83 NLRB 41. MAINE FISHERIES CORPORATION and ATLANTIC FISHERMEN 'S UNION, SEAFARERS ' INTERNATIONAL UNION OF NORTH AMERICA, AFL, PETI- TIONER. Case No. 1-RC-9914. January 9, 1953 Supplemental Decision and Order On October 24, 1952, pursuant to a Decision and Direction of Elec- tion issued by the Board herein on October 2, 1952,1 an election by secret ballot was held under the direction and supervision of the Re- gional Director for the First Region, among employees in the unit found appropriate. Following the election, a tally of ballots was furnished the parties. The tally shows that, of approximately 40 eligible voters, 33 cast valid ballots, of which 8 were for the Petitioner, 6 were for the Intervenor,2 and 19 were against participating labor organizations. There were 2 challenged ballots. On October 30,1952, the Petitioner timely filed objections to the con- duct of the Employer which it alleged affected the results of the elec- ' Not reported in printed volumes of Board decisions. ' Seafood Workers Union, ILA, Local No 2, Series 1572, AFL. 102 NLRB No. 9. MAINE FISHERIES CORPORATION 109 tion. The Regional Director conducted an investigation of the objec- tions and on November 21, 1952, issued and duly served upon the par- ties a report on objections. In his report, he found, inter alia, that statements in a letter sent by the Employer to the employees on Oc- tober 21, 1952, interfered with the election and he recommended that the election be set aside on that ground. The Employer thereafter timely filed exceptions, supported by a brief, to these findings and recommendations.-3 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-mem- ber panel [Members Houston, Styles, and Peterson]. The Regional Director's recommendation that the election be set aside is based essentially on the following findings : In a prior pro- ceeding involving the same employees, and in which the present Inter- venor was the petitioner, an election was conducted on March 14, 1952. On the day before that election, the Employer's president, during a speech to the assembled employees who were engaged in the processing of fish for the Employer, stated that : "In attempting to give you more steady work, I have been considering making arrange- ments to have another boat brought here in order to supply more fish." The Board found, contrary to the Employer's contention in that case, that this speech contained an implied promise of benefits which interfered with the election, and the election was set aside.4 The petition in that case was subsequently withdrawn. Thereafter, on August 15, 1952, a new petition was filed herein and, as already noted, an election was held on October 24, 1952. On Octo- ber 21, 1952, the Employer sent the employees a letter signed by David Bergson, who is apparently the general manager, in which he directed attention to the forthcoming election and stated : The defeated union in the last election got the National Labor Relations Board to set aside the election on the grounds that you people were prevented from exercising your own good common sense by a promise that Mr. Usen made to you in his speech. That he would do everything in his power to supply you with work and that he was negotiating for a boat to be brought in to bring you additional fcsh. That, the Board said, was unfair for Mr. Usen to do. He promised you a benefit and thereby you were prevented from exercising your normal good judgment. The Board said that he interfered with your freedom of choice. We disagree with the National Labor Relations Board and we have told it so. We never intended to bribe you for your vote. We ' No exceptions were filed to the Regional Director's findings that other objections by the Petitioner were without merit In the absence of exceptions , we adopt the Regional Director's findings as to these objections and they are hereby overruled. 4 Maine Fisheries Corporation, 90 NLRB 604. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect your honesty and good sense too much. Unfortunately, the National Labor Relations Board does not understand the practice in this industry of getting additional boats to bring you fish to work on. So, here we are with another election. This time with two unions trying to get your vote. [Italic appears in communication to employees.] The letter further set forth the Employer's opposition to both Unions, noting that the Unions cannot make the fish run and joining the Unions will not bring in more fish or provide more steady work or make available additional boats to bring in more fish. The Regional Director found, in substance, (1) that the above- quoted paragraph of the Employer in its letter demonstrates the Employer's intransigence and complete disregard of, and even indica- tion of contempt for, the Board's prior findings, and (2) that the paragraph contained an implied reiteration of the earlier promise in order to influence the election. Accordingly, he recommended that the election be set aside. In its brief, the Employer asserts that the paragraph in question was merely intended to inform the employees why another election was being held and to express its continued disagreement with the previous decision by the Board, but that no contempt was intended. The Employer further asserts that no implied promise of future benefits was made principally because, shortly after the previous elec- tion, the Brighton, the boat which was then being considered, had been permanently assigned to service this company, and the usual slack season in the industry was impending at the time of the present election,s so the employees could not have interpreted the statement as promising any additional boats. We find merit in the Employer's position. The quoted portion of the Employer's letter clearly reveals the Employer's disagreement with the Board's decision setting aside the election conducted 7 months before. However, such disagreement does not constitute interference with the election, unless, as found by the Regional Director, it contained an implied renewal of the earlier promise of future benefit. We do not believe that a finding of such renewed promise is warranted. Rather, in the context of the uncon- troverted facts, namely the already effected assignment of the Brighton shortly after the prior election and the imminent termina- tion of the processing season, it is evident that the Employer's state- ment is at most a reminder to the employees of past benefits granted , The Employer states that the season in the industry is from March to about November, after which time it would be unprofitable to bring fish from far-off fishing grounds to Portland. LOCAL 5 7, UNITED AUTOMOBILE, AIRCRAFT, ETC. 111 -without union representation. The Board has held that like re- minders by an employer do not constitute interference with an elections Accordingly, we find that the Petitioner's objections to the election raise no substantial or material issues and we hereby overrule them. As we have overruled the Petitioner's objections, and as the tally of ballots shows that no collective bargaining representative has been chosen, we shall dismiss the petition. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 9 L. H. Butcher Company, 81 NLRB 1184. Also see General Electric Company, 92 NLRB 1132. LOCAL 57, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, CIO and Louis R. MILLER. Case No. 13-CB-124. January 12, 1953 Decision and Order On July 21, 1952, Trial Examiner Stephen S. Bean issued his Inter- mediate Report in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices in viola- tion of the National Labor Relations Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report. The Board 1 has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. i 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 [ Chairman Herzog and Members Styles and Peterson]. 2 The Intermediate Report makes the following minor erroneous statements of fact, which do not affect the validity of the Trial Examiner's ultimate findings nor our con- currence therein: (1) The record does not show that either the union treasurer, Arthur Barrett, or Ralph Bishop appeared at the Thanksgiving meeting ; (2) the record does not support the Trial Examiner 's statement , in footnote 6, that Edward Eberle's "affidavit" consisted largely of answers to the leading and suggestive questions of Crance and Church; (3) with regard to the Trial Examiner 's discussion in footnote & of the status of Lacey Shore, the record shows that Shore was not a steward in 1950. 102 NLRB No. 3.