Frank Alioto Fish Co.

FRANK ALIOTO FISH CO. AND BOAT SEAWORTHY 27 F. Alioto Co. d/b/a Frank Alioto Fish Co. and Boat Seaworthy, a Partnership and Pacific District, Marine Staff Officers, Office and Allied Personnel , affiliated with Seafarers' International Union of North America, AFL-CIO, Petitioner A. Paladini, Inc. and Pacific District, Marine Staff Officers, Office and Allied Personnel, affiliated with Seafarers' Inter- national Union of North America, AFL-CIO, Petitioner Standard Fisheries Corporation and/or Frank 's Fisheries, Inc. and Pacific District, Marine Staff Officers, Office and Allied Personnel, affiliated with Seafarers' International Union of North America, AFL-CIO, Petitioner Western California Fish Co. and Pacific District, Marine Staff Officers, Office and Allied Personnel, affiliated with Seafarers' International Union of North America, AFL-CIO, Petitioner. Cases Nos. 20-RC-4060,1 20-RC-4061, 00-RC-4062, and 20-RC- 4063. September 9, 1960 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before M. C. Dempster, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this consolidated proceeding, the Board finds : 1. The Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act.2 2. The labor organization involved claims to represent employees of the Employer. 3. The Petitioner seeks to represent in four separate units net repairmen and fishermen engaged in dragboat' fishing along the California-Oregon coast, who supply fish for the Companies engaged in processing and sale of fish and seafood products. The Companies 1 Cases Nos 20-RC-4047, Cresci Bros., and 20-RC-4048, Mary A. La Rocca, et al., which were originally consolidated in this proceeding, were withdrawn during the course of the hearing The Regional Director approved the withdrawal on the ground that the Employers involved did not meet the Board 's jurisdictional requirements. a In Case No 20-RC-4060, F Alioto Co and Boat Seaworthy contend that each is a separate company for jurisdictional purposes and if any unit is found appropriate by the Board , there should be single units for each . In Case No. 20-RC-4062, the Companies contend that Standard Fisheries and Frank 's Fisheries are separate companies. and as Frank's does not meet the Board's jurisdictional requirements, the petition as to it should be dismissed As the uncontradicted record shows that the alleged separate corporations are owned by the same individuals , have the same officers, use the some address, and are managed by the same individual , we find they constitute a single employer for purposes of jurisdiction , and we deny the motion to dismiss on that ground a Dragboat fishing is done by means of a dragboat which catches fish by drawing a net, usually across the bottom of the ocean. 129 NLRB No. 6. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contend that the petitions should be dismissed on the ground that the fishermen are not their employees within the meaning of the Act, but are independent contractors or employees of independent contractors.' There is no history of bargaining. Before the season opens, the Companies engage the man to be in charge of the boat, who is known as the captain, skipper, or, as here, the "boss." The Companies own the boats and also equip them. They take care of the major repairs, hull insurance, and P.I. insurance on the crew. The bosses order minor repairs to be made and charge them to the account of the vessel, payable by the Company. The bosses, alone, hire and discharge their own crews, consisting usually of three to five men, and they determine the number of men to be included in the crew.' Before they sail, the Companies tell the bosses what kind of fish they want. The bosses decide where and when to fish. The bosses and their crew fish, weather permitting, every day of the week except Friday and Saturday. On occasion, if a Company wants more fish, or a boss and crew wish to earn more money, and the other party is willing, the crew then fishes also on Fridays and Saturdays. The Companies, however, have no right to make the bosses fish on those days if they do not so desire. Before the season begins, the Companies and the bosses negotiate the price per pound the Companies are to pay for the catch. The de- tails regarding the method of determining the price differ at the various Companies, but the element of negotiation with the boss is common in each instance .6 By a so-called "gentlemen's agreement" it is understood that the boss will deliver the entire catch for the season only to the Company involved and not to any other. However, the entire catch is not always taken by the Companies. For example, the fishermen on Paladini boats may sell scrap fish for their own account; the Seaworthy has sold fish for bait in the Crescent City area without advance knowledge of the Company, and the boats owned by Western California Fish Company are permitted to sell fish elsewhere when they catch more fish than the Company can handle. The Companies and the bosses negotiate the total amount of shares that they and the crews will receive from the catch. A certain set * All the Companies concede that the net repairmen who repair and make nets are their employees. 5 However , there is some evidence in the record that on very rare occasions in the past a company has recommended that a boss hire or discharge a fisherman, but this has not been the case recently nor is it so at present. 6 The record reveals that sometimes A Paladini will change the price to be paid, due in the main to competition of the market , and then will try to negotiate a settlement with the boss , that Frank's Fisheries has an agreement in advance with the boss to re- duce the price if the boat brings in more fish than the Company wants ; that the situation at F. Alioto Co. and Boat Seaworthy is similar to the one at A Paladini ; and that at Western California Fish Co., the Company has a standing order for the amount of fish it wants and if more than 10 percent above the prescribed amount is brought in, a reduced scale of prices agreed to in advance takes effect. FRANK ALIOTO FISH CO. AND BOAT SEAWORTHY 29 percentage goes to the Companies for furnishing the boats and gear and a certain percentage to the crews. Arrangements vary from company to company as to whether the cost of fuel, ice, and food comes from the "top" (before division of the shares) or out of the Company's or crew's shares.? The bosses determine the share distribu- tion to the crews 8 and to this extent may control their own private profits. The bosses and the members of the crews are paid weekly by com- pany check. The Companies withhold income taxes, social security taxes, and unemployment compensation. These deductions are made by the Companies because in 1937, under their protest, they were ordered to deduct unemployment compensation and social security taxes by the California Unemployment Reserves Commission. The bosses and their crews receive no vacation pay or other welfare benefits than those indicated above. The relationship between each boss and the particular Company, as indicated above, is governed by an oral contract. These contracts are not made for a specific term and may be terminated at will by either the boss or the Company. The Companies contend that on the basis of our decisions in the Alaska Salmon case 9 and others, the bosses are independent con- tractors and the fishermen are the employees of the bosses. The Petitioner urges the applicability of our decision in Southern Shell- fish 1e and that the bosses and fishermen are employees of the Com- panies. It is clear from an analysis of the cited decisions and the instant cases that the latter contain a number of features similar to both Alaska Salmon and Southern Shell fish. Thus, as the Petitioner points out, here, as in Southern Shellfish, there is an oral agreement, terminable at will. Like Southern Shellfish, the Companies own the boats and equip them, are responsible for repairs and maintenance, the bosses hire and fire the crews, decide where and how to fish, and sell the entire catch to the Company. It urges that although the bosses may adjust their own take-home pay as between themselves and their assistants, this is not enough to turn them into entrepreneurs, but as the Board held in Southern Shellfish the fishermen operate like a group incentive arrangement. 7 The Companies do not insist that the food for the crews be bought in company-owned or company-designated stores. The persons whom the bosses designate to buy the food mAke the purchases at the markets of their own choice and charge the cost to the particular vessel. 9 The general pattern, regardless of the size of the crew , is that the boss receives about 11/a of the crew's share and the fishermen 1 share each , with the boss at times giving one-fourth to one-half of his share to one or two fishermen in return for their helping with the engine and/or relieving him at the wheel. But at times on some vessels this general pattern varies with either more to the boss or more to the crew. O Alaska Salmon Industry, Inc., 110 NLRB 900, 81 NLRB 1335 , 82 NLRB 1056; J Howard Smith, Inc., 95 NLRB 21 ; F. H. Snow Canning Company, Inc., 118 NLRB 284. 110 Southern Shellfish Co ., Inc., 95 NLRB 957. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the other hand, the Companies point to a number of fundamental differences between the instant cases and Southern Shellfish. In the latter the company did not grant complete control of hiring and dis- charging to the captains; it required food, fuel, and ice to be obtained from suppliers designated by it; the company utilized its own price- lists and unilaterally determined and changed the price it paid for the catch; and the captains received no payment for spoiled fish uti- lized in making fertilizer. We also note that in Southern Shellfish, the company unilaterally changed the number of shares as between it and the captain. The Companies urge that the instant cases are more like those in Alaska Salmon " where the independent contractor relationship was found. Thus, they point out that, as in that case, the Companies own the boats and equipment; the bosses select their own crews and determine their number and the shares of each mem- ber; the bosses may fish for whom they please although customarily they return to the same Company; the bosses select the place where they fish; the Companies here, as there, negotiate the price to be paid for the fish, any change of price being subject to negotiation; and the bosses usually sell the entire catch to the Company involved. We find, upon all the circumstances, that the bosses herein operate under conditions more akin to those in Alaska Salmon rather than in Southern Shellfish. We find that like Southern Shellfish, the agree- ments here are oral rather than written as in Alaska Salmon; how- ever, it is the nature of the agreement or the arrangement which is controlling. These arrangements are basically bilateral in nature, that is, the basic arrangements are arrived by negotiation. For this reason we believe that the bosses have substantial independence and control over the fishing operations, and therefore that they are inde- pendent contractors and the fishermen are their employees and not employees of the Companies. 4. As indicated above, the Companies involved conceded that the net repairmen are their employees and are hired and supervised by the Companies. The record shows, however, that only J. Paladini, Inc., in Case No. 20-RC-4061, has two such repairmen. The other Companies have only one such employee or none at the present time.12 We shall direct an election in Case No. 20-RC-4061 including such workers and dismiss the petitions requesting representation of fishermen." The following employees of the Employer, A. Paladini, Inc., of 540 Clay Street, San Francisco, California, constitute a unit appro- n 110 NLRB 900, supra. 12 Loans F. Dow Co., 111 NLRB 609, 610 Is The Companies contended contrary to the Petitioner that shrimp fishing is so different from that of dragboat fishing that the two types of fishermen should not be included in the same unit. As we are dismissing the petitions concerning all fishermen , we find no necessity for considering this question. JAY KAY METAL SPECIALTIES CORPORATION 31 priate for purposes of collective bargaining within Section 9(b) of theAct: All net repairmen excluding all other employees, office cler- ical employees, professional employees, guards, and all supervisors as defined in the Act. As we find that no question concerning commerce exists in Cases Nos. 20-RC-4060, 20-RC-4062, and 20-RC-4063, within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, we shall dismiss the petitions in those cases. We shall also dismiss the peti- tion in Case No. 20-RC-4061 insofar as it seeks to represent fishermen. [The Board dismissed the petitions in Cases Nos. 20-RC-4060, 20-RC-4062, and 20-RC-4063 and dismissed Case No. 20-RC-4061 insofar as the petition requests representation for fishermen.] -Jay Kay Metal Specialties Corporation and Seafarers Inter- national Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO and Local 16, Metal and Miscellaneous, District 65, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioners. Cases Nos. 2-RC-10362 and 2-RC-10367. September 12, 1960 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before William G. Haemmel, hearing officer. The hearing officer'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 Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner in Case No. 2-RC-10362, referred to herein as SIU; the Petitioner in Case No. 2-RC-10367, referred to herein as District 65; and the Intervenor, Amalgamated Local Union 355, In- dependent, referred to herein as Local 355, which intervened on the basis of a contractual interest, are labor organizations which claim to represent certain employees of the Employer. 3. The Employer and Local 355 contend that their existing agree- ment is a bar to both petitions. The Employer has recognized and bargained with Local 355 as the exclusive representative for a unit of production, maintenance, and shipping employees since 1954, and 129 NLRB No. 7.