Fishermen's Marketing Association of Washington, Inc.

FISHERMEN'S MARKETING ASSOCIATION OF WASHINGTON, INC. 189 notice to modify is given the contract will be renewed for another full term. As the contract is unambiguous in this respect, there is no room for any inference that the Intervenor in fact intended to terminate the contract when it gave notice of a desire to modify. Under these cir- cumstances, we find that on March 7,1955, when the petition herein was filed, the contract had already renewed itself for another year. Once the contract renewed itself on January 1, 1955, those limitations set forth in Section 8 (d) of the Act on the duty to bargain during the term of an agreement 4 were, of course, applicable. Negotiations for changes after January 1, 1955, in existing terms of the contract were entirely voluntary rather than mandatory .5 Under these circumstances, we find that the proposal for modification of the contract and the action'taken thereon did not unstabilize the existing contractual relationship be- tween the parties to such an extent as to preclude the application of our usual contract-bar rules. As the petition was filed during the term of the automatically renewed contract,s it was untimely filed and the existing contractual relationship constitutes a bar. We shall therefore dismiss the petition. [The Board dismissed the petition.] MEMBER PETERSON took no part in the consideration of the above Decision and Order. 4 Section 8 (d) provides in part that the duty to bargain in good faith "shall not be construed as requiring either party to discuss or agree to any modification of the terms 11 and conditions contained in a contract for a fixed period... . 5 The modification clause states that the contract is renewed "subject . . . to such changes as may be mutually agreed upon . 11 We construe this language as not waiving the right of either party under Section 8 (d) to refuse to bargain, after the automatic renewal of the contract, about any matters contained therein. 6 Contrary to the Petitioner's contention, we find that the document executed on March 25, 1955 , was not a new contract, superseding the automatically renewed contract, but in substance merely incorporated in the renewed contract modifications agreed to by the parties, a procedure contemplated by the "modification clause" of the old contract quoted in the text, above. Fishermen's Marketing Association of Washington, Inc. and Pacific Coast Fishermen's Union, affiliated with Seafarer's International Union of North America , AFL, Petitioner. Case No. 19RC 1605. October 4, 1955 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John H. Immel, Jr., hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 114 NLRB No. 49. 190 DECISIONS OF NATIONAL LABOR RELATJONS BOARD Upon the entire record in this case, the Board finds : 1. Fishermen's Marketing Association of Washington, Inc., herein called the Association, is engaged in commerce within the meaning of the Act.' 2. The Petitioner 2 is a labor organization claiming to represent crewmen employed on bottom fishing vessels operating out of Puget Sound ports. 3. The Petitioner seeks to represent a unit of all crewmen of bottom fishing boats "employed by members of the Fishermen's Marketing Association of Washington, Inc." The Association opposes the pe- tition. The Association is a nonprofit cooperative marketing association, organized and operating under the Federal Fisheries Act of 1934,3 and the laws of the State of Washington. Its purpose is to market fish caught by its members. Membership in the Association is limited to fishermen who are actually engaged in bottom fishing. This includes vessel captains who own vessels, captains who do not own vessels, and ordinary crewmen. Approximately 90 captains are Association mem- bers; the number of crewmen who are Association members is not shown. Each member pays a membership fee of the same amount and each enjoys the same membership privileges. The members of the Association are substantially the same group that were members of the now disbanded Otter Trawlers Union, Local 53 4 As a marketing agency, the Association enters into individual agreements with dealers in the State of Washington, whereby the lat- ter agree to purchase their fish requirements from Association mem- bers. The Association, on behalf of its members, also negotiates a schedule of fish prices with the dealers. The members sell their fish to the dealers at the existing schedule which, from time to time, is re- negotiated by the Association. The Association owns no boats, fur- nishes no equipment, gear, or supplies, does not hire crewmen, exer- cises no control over the fishing operations of its members, and does not acquire title to the fish that is caught by its members. 3 During 1954, members of the Association caught fish valued at approximately $2,145,000, over $100,000 of which was sold, through the Association, to fish dealers. Each of such fish dealers had out-of-State sales in excess of $50,000 during 1954. See Jonesboro Grain Drying Cooperative, 110 NLRB 481. 2 The name of the Petitioner appears in the caption as amended at the hearing. 3 48 Stat. 1213 4In September 1952 the Board, noting that no exceptions had been filed thereto, and stating expressly that it was not passing on the merits, adopted the findings of a Trial Examiner that Otter Trawlers Union, Local 53, functioned in the dual capacity of an employer and a labor organization; and ordered it to cease and desist from bargaining for and representing employees who work for vessel owners and captains. The Trial Examiner had found that the union, on behalf of crewmen, entered into bargaining con- tracts with individual boat owners and captains , and, on behalf of boat owners, negotiated fish sales with fish dealers. Otter Trawlers Union, Local 53, 100 NLRB 1187. Otter Trawlers Union, Local 53, was disbanded on November 5, 1952. FISHERMEN'S MARKETING ASSOCIATION OF WASHINGTON, INC. 191 Fishing boats captained by Association members carry a crew of from 2 to 5 men. The captain is in complete charge of his boat. He selects and hires his crew, assigns particular duties to them, de- termines the time of departure and arrival, and selects the fishing ground. The captains, or the owners of the vessels, have "the respon- sibility" of making "deductions" for social security, unemployment compensation, and withholding taxes. Under the captains' direction, the crews prepare the fishing equipment and take care of the gear be- fore leaving port; man the boats while at sea; catch, clean, and ice down fish ; and, on return to port, sort and unload fish, and wash the boats down. A fishing trip usually lasts about 2 weeks. Upon return to port, the following disposition is made by Association members of the pro- ceeds of a catch : From the gross amount received there is deducted au Association assessment and the cost of ice, gasoline, oil, and various other operating expenses of the trip; thirty-seven percent of the re- mainder, the so-called "net stock," goes to the boat's owner as the boat's share of the proceeds; and from the balance, there is deducted the cost of food consumed on the trip and what is then left is divided equally among the captain and crew. This arrangement was adopted in November 1952 by a vote of the Association membership at a time when the Association was being organized. During its existence, the above-mentioned Otter Trawlers Union, Local 53, functioned under a substantially similar arrangement. The chief difference in these arrangements concerns the percentage of the "net stock" that is allo- cated to the boat owner. Thus, unlike the flat 37-percent arrangement that exists under the Association practice, under the earlier practice the boat's share was a percentage based on the number of fishermen on a vessel. The latter varied between 331/3 and 40 percent. The Petitioner contends that there has been "a sufficient delegation of employer function to the Fishermen's Marketing Association of Washington, Inc.," to render appropriate "a multi-employer unit comprising the members of the Association." To support this con- tention, the Petitioner argues, in substance, that because of employee participation in the Association, because of the Association arrange- ment fixing the boat's share of the proceeds of a catch, and because of the Association's power to negotiate the market price of the fish sold by Association members, the Association is in effect bargaining with the crewmen, on behalf of their employers, with respect to crew- men's wages.' 5 Thus the Petitioner asserts in the brief it filed with the Board : "The change in the boat's share was a change in wages [because it was] a direct change in the crew's share. . . . But where the employers collectively bring the employees into one organization with them and by procedures within the organization obtain the acquiescence of the employees in proposed prices, such as the 20-percent reduction, and then negotiate the reduction, it seems to us that the employers have adjusted wages with the employees." 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We do not find merit in the Petitioner's position. The facts stated above clearly show, we believe, that an employment relationship exists between the crewmen on the one hand and the boats' owners and cap- tains on the other, and that the latter are in fact the employers of the crewmen.6 Indeed, the Petitioner does not appear to assert the contrary. Nor do we perceive that the relationship that exists among the crew- men, boat owners, and captains within the Association constitutes the Association the labor relations representative of the employers of the crewmen. It is true, as the Petitioner asserts, that under the ex- isting arrangement the amount of the proceeds of a catch that is allo- cated to the boat's share, as well as the price at which the catch is mar- keted, affect the share that the crew will receive from the proceeds. But this fact, even when conjoined with the fact that crewmen have' a voice in the determination of Association policy, does not establish that the Association has been cloaked with the mantle of "employer function." So far as the record shows, the Association was organ- ized for the purpose of promoting the interests not only of the cap- tains but the crewmen as well; and there is no showing that the Asso- ciation acts on behalf of the one group as distinguished from the other. No contention is made that crewmen and captains do not have equal membership privileges or voting rights within the Association;' nor does it appear that there is any limitation on the number of crewmen who may join the Association. In these circumstances then, were we to adopt the Petitioner's unit contention, we would in effect be saying that the Petitioner may bargain on behalf of the crewmen with the crewmen themselves. For to the extent that the crewmen may, through their numbers and votes, influence the policy of the Associa- tion, or even control it, the Association is in effect the collective voice of the crewmen. The result the Petitioner seeks, therefore, would be contrary to reason, and certainly is not contemplated by the Act. We find, therefore, that no question affecting commerce exists con- cerning the representation of employees of the Association within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. Accordingly, we shall dismiss the petition. [The Board dismissed the petition.] s Cf. Alaska Salmon Industry, Ino., 110 NLRB 900. ,Indeed, the Association's bylaws provide : "Each member shall have one vote and one vote only and the voting power of each member of the association shall be equal to the voting power of each and every other member of the association."