F. H. Snow Canning Co., Inc.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. H. Snow Canning Company, Inc. and Local 56, Amalgamated Food and Allied Workers Union, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Petitioner. Case No. 4-RC-3234. June 21,1957 DECISION AND ORDER Upon a petition duly filed under Section 9 ( c) of the National Labor Relations Act, a hearing was held before Joseph A. Weston, hearing officer. The hearing officer referred to the Board the Petitioner 's motion for the incorporation into the record in this case of the file of the Re- gional Office in Case No. 4-CA-1462. The charge in that case, alleg- ing certain unfair labor practices by the Employer, was filed by the Petitioner and later withdrawn . The Employer objects to this mo- tion. As the documents requested are in the confidential file of the General Counsel , and, moreover, pertain to an unfair labor practice case, we hereby deny the Petitioner's motion. The hearing officer granted, over the Petitioner's objection, the Employer's motion to strike the testimony of William Anderson that Captain Arthur Bjorklund told him in August 1955 that the Em- ployer's general manager had instructed Bjorklund to lay off Ander- son because he had failed to report for work. Bjorklund was at sea and not available to the Employer at that time . The hearing officer granted the motion on the grounds that the testimony, coming at thd, end of the hearing, would prolong the hearing to permit the Employer to interview Bjorklund, that it was isolated and remote , and that the record already contained many facts upon which the Board could rely in coming to a decision. We do not believe that the disputed testi- mony was irrelevant . However, the incident was isolated and remote, and the record contains evidence that the captains , when the occasion arises, discharge crew members themselves. We are convinced that this evidence, if freely admitted, would not affect our ultimate find- ings in this case. Accordingly we affirm the hearing officer 's ruling. The hearing officer's other rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Murdock and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent employees of the Employer. 118 NLRB No. 32. F. H. SNOW CANNING COMPANY, INC.. 285 No question affecting commerce exists concerning the representa tion of.. employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer is engaged in canning clams at Pine Point, Maine, and Wildwood, New Jersey. The Petitioner seeks to represent crew mem- bers working at Wildwood on the Employer's boats. The Employer contends that the captains are independent contractors. Before January 14,1957, the Employer operated its boats under oral agreements with the captains, but on that date executed Charter Agree- ments and Clam Purchase Agreements with the captains. Prior to this time the Employer made deductions from the paychecks of the cap- tains and crew members for social security, unemployment insurance, and Federal tax withholding. Since then the captains have received a weekly check from the Employer of the gross amount for the clams caught, at the price named in the purchase agreement. They then deduct the cost'of -fuel, oil, chart, paper, propane gas, and bookkeeping and remit to the Employer 40 percent of the net amount. The re- mainder is split' 3 ways between the captain and the 2 crew members. The captains deduct social-security and withholding taxes. They are paid 10 cents per bushel additional by the Employer each month. The Company maintains a protection and indemnity insurance policy on the boats and keeps them in repair. As before the change, each boat is manned by two crew members and a captain who chooses his crew, determines the hours of work, and selects the places for.-clamming. Approximp-tely..40 percent of, the Employer's clams are obtained from its own boats. The Charter Agreement runs for a fixed term, the present one expiring June 7, 1957. Under it the captain has exclusive possession and "unrestricted management, navigation, control and operation.". If he violates the charter or purchase agreements, the Employer may terminate the charter on 2 days' notice. The charter also terminates on the death of the captain or if the vessel ceases clam dredging "by reason of Act of God, the public enemy, authority of law, or other forces beyond the control of the parties." The charter also provides for the payment of the 40-percent share discussed above and the maintenance by the Employer of insurance for protection and in demnity liability. Under the Clam Purchase Agreement, which also runs to June 7, 1957, the Employer agrees to buy, and the captain agrees to sell, all the clams dredged. The agreement sets the price to be paid and the size of the clams. If the Employer does not wish to continue the purchase of clans because of limited processing capacity, strikes, or other business conditions, it may terminate or limit its purchases and the captains may sell clams to others until notified by the Employer that.it wishes to resume its purchases. In practice, however,, as the 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer is the largest purchaser in the area, when it shuts down, the clam boats, including those independently owned, stop operations. The boats, equipped for clam dredging, are not suitable for any other type of fishing. The above facts disclose some elements which would tend to show that the captains and crews are employees of the Employer. Thus, the use of the boats is restricted as they can be used only for clam dredging with their present gear; in practice when the Employer has suspended the processing of clams, the boats are laid up because the Employer is the largest purchaser in- the area; the boats are small and are manned by a captain and two crew members thereby diminish- ing the opportunity of the captains to realize profit from the efficient operation of the boat; and, finally, the captain is paid the 10 cents a bushel bonus directly by the Employer for his care of the Employer's equipment and his skill in catching clams. On the other hand, there are factors which, in our opinion, rebut the inference that the Employer had retained such control over the boats and personnel as to create an employer-employee relationship. The captains select the crews, and they have discharged crew members; they determine the working hours, receive a fixed, agreed-upon price for the clams, keep the records of the boats' operations, and withhold taxes and pay social security The agreements, under which they charter the boats and sell the clams to the Employer are not terminable at will, but, to the contrary, run for fixed tern-is. In determining whether or not the Employer has the right of, con- trol over the boats and their crews, we have weighed all the factors discussed above, and on the record as a whole we find that the captains are independent contractors and the crew members their employees. (See J. Howard Smith, Inc., 95 NLRB 21. Compare Southern Shell- fish Co., Inc., 95 NLRB 957,.) ' We find, accordingly, that no question affecting commerce exists concerning the representation of employees-of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act, and we shall therefore dismiss the-petition. [The Board dismissed the petition.] United Brotherhood of Carpenters and Joiners of America,. AFL- CIO, Richard P. Griffin and Frank Barry, its agents ; Carpen- ter's District Council of Springfield, Massachusetts, AFL-CIO, and Walter J. LaFrancis and Harry P. Hogan, its agents and J. G. Roy and Sons Company. Case No. 1-CC-155. June 24,1957 DECISION AND ORDER ,On October 31, 1956, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the 118NLRB No.24.