Int'l Organization of Masters, Mates, Etc.

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . All our employees are free to become or remain members of the above-named or any other labor organization. EMPLE KNITTING MILLS, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele- phone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47, International Organization of Masters, Mates and Pilots of America,, Inc., AFL-CIO and Chicago Calumet Stevedoring Co., Inc., Charging Party International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47, International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO and P & V Maritime Corporation, Charging Party 'International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO; Great Lakes District, Local No. 47, International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO and North Pier Terminal Company, Charging Party International Organization of Masters , Mates and Pilots of America, Inc., AFL-CIO, and International Vice-President Captain Rolla R. Johnson and Cleveland Stevedore Company, Lederer Terminal Warehouse Company, National Terminals Corporation and Shipping Federation of Canada , Charging Parties. Cases Nos. 13-CC-168, 13-CC-169, 13-CC-170, and 13-CC-180 (formerly 8-CC-76). February 26, 1964 SECOND SUPPLEMENTAL DECISION • _ On October 23, .1963, the Board issued its Supplemental Decision in. this proceeding,' in which it dealt with the two questions posed by the Circuit Court of Appeals for the District of Columbia on an order of remand of December 20, 1960. Those questions concerned, (1) whether the International Organization of Masters, Mates and Pilots of America, Inc., AFL-CIO, herein called MMP, possessed a member- ship which included, in substantial. number or proportion, persons who are-employees. within the meaning of Section 2(5) of the Act, and 1144 NLRB 1172. The original decision is reported in 125 NLRB 113. 146 NLRB No. 19. INT'L ORGANIZATION OF MASTERS, MATES, ETC. 117 -,whether '.such employee members, if any, participated in MMP" in 'a substantial and meaningful manner; and (2) whether the membership of Local 47 of MMP included "employees" whose participation in the affairs of Local 47 and MMP was substantial and meaningful. In its Supplemental Decision, the Board concluded that MMP's membership included individuals in substantial number who were "em- ployees" and that their participation in MMP was substantial and meaningful? The Board also found that Local 47 was comprised of 430 members, of whom 12 were pilots. The Board concluded, without deciding whether the pilots in Local 47 were employees within the meaning of the Act,3 that their number was not substantial in relation to the total membership of MMP. However, the Board found that Local 47 was responsible for the secondary misconduct charged under -Section 8(b) (4) (A)4 as an agent of MMP.5 On January 31, 1964, the court of appeals entered a second order of remand in this proceeding in which it directed the Board to make additional findings of fact as to whether the pilot-members of Local -47 are "employees," and if so, whether their number in proportion to total membership of the Local is substantial and whether their par- ticipation in Local 47 is substantial and meaningful. Pursuant to this remand, we have carefully reviewed the record. On the basis of the facts hereinafter set forth, which we find are sup- ported by the record as a whole, we conclude, contrary to the dissent, that the pilot-members of Local 47 do not occupy the status of em- ployees within the purview of Section 2(5) of the Act for the follow- ing reasons. A substantial portion of the record in this proceeding is devoted to the duties of the pilot-members of Local 47, who operate on the Great Lakes. The facts concerning the duties of these pilots boil themselves down to these. The services of the pilots are utilized pri- marily by foreign shipping operators to navigate their vessels to the various ports on the Great Lakes, mainly due to the requirements of the maritime insurers. These pilots are specially trained in the navi- gational hazards which exist on the lakes through schooling, ex- perience, and their ability to read and understand the various charts and maps pertaining to the area, as well as through their understand- ing of the directional purpose of the various blinking lights dotting 2 This conclusion was predicated upon facts stipulated to by the parties which showed that, of the approximately 11,000 individuals who constituted the membership of MMP at the time of the events here involved , between 170 and 291 were concededly statutory employees who held membership in the AMW locals, and who, by virtue of the pertinent provisions of MIIP's constitution, shared in - MMP's affairs with meaning and substance. 3 The parties stipulated that, unless the Board found that the pilots of this Local were "employees," the Local was composed exclusively of supervisors . It appears , from the :stipulation that the remaining members of Local 47 are classified as masters or mates who the parties agree are supervisors within the meaning of the Act. 4A9 it existed prior to 'the enactment of the Labor-Management Reporting and Dis- closure Act of 1959. 5 ,See authorities cited in 144 NLRB 1172. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the lakes. They are licensed, seagoing personnel, who have their names placed on a "tour de role" for assignment. When a foreign vessel enters the St. Lawrence Seaway, the captain of the ship contacts the ship operator's domestic agent to arrange for the services of a pilot. Normally, the pilot who is retained for the particular voyage is unknown to the captain or his officers, his selection being determined by the position of his name on the availability list. When his name is reached for assignment, he is dispatched to the vessel with his various charts and maps. After reporting to the captain, and after the ship is brought under- way, the pilot stations himself in the wheelhouse and gives orders to the helmsman as to course, and also uses the ship's telegraph to give orders to the engineroom as to the requisite speed with which the vessel should proceed. When conditions require, a pilot may take over the wheel to insure the safe passage off the vessel. Moreover, pilots have been known to complain about the insobriety of helmsmen in the wheelhouse and have effectively recommended the discipline of such seamen to the captain. While the captain or a ship's officer may countermand an order given by the pilot to a helmsman or to the engineroom, this is done only in extraordinary circumstances, such as when a pilot appears to be unfit for duty. Because of the peculiarities of maritime law, all orders given aboard ship technically emanate from the captain although he may not per- sonally issue them. However, because of the special navigational skills of the pilots, the captain normally does little if anything with respect to the navigation of his vessel while the pilot is aboard, and it.does not appear that the captain in any way interferes with or supervises the means or methods by which pilots take the vessels to their ultimate destinations. When the lakes' voyage is concluded and the pilot is dropped, the captain certifies the amount of time spent aboard by the pilot and so informs the operator of the vessel who in turn compensates the pilot. So far as appears, no social security or other taxes are with- held from such compensation. ` In view of the foregoing and the record as a whole, we conclude and find that the pilots who were members of Local 47 at the times relevant to this proceeding were either independent contractors or supervisors within the meaning of the Act, and were not "employees." 6 'As we have found that the pilot-members of Local 47 are' not "employees " within the meaning of the Act, it would appear that a finding as to the second part of the court's question is unnecessary. However, should the court disagree with this finding and con- clude that the pilots are "employees," we are of the opinion and would find that their number in proportion to the total membership of Local 47 Is substantial and that they participate in the affairs of Local 47 in a substantial and meaningful manner. We predi- cate this conclusion upon the following : ( 1) The fact that 12 of the 430 members of Local No. 47 at the times relevant to this proceeding were pilots ; and•(2 ) the follow- ing statement in the stipulation of facts signed by the parties and made a part of the record herein : "Pilots who are members of Local 47 participate fully as members of Local No. 47 . . . and have participated and do participate in the proceedings of Local No. 47." INT'L ORGANIZATION OF MASTERS, MATES, ETC. 119 MEMBERS BROWN and JENKINS, dissenting in part : We agree with the majority that the pilots comprise a substantial part of Local 47 and participate in the affairs of the Local in a substan- tial and meaningful manner. However, we also would find that the pilots are "employees" within the meaning of the Act. The pilots are hired because of their special knowledge of local cur- rents, their familiarity with the intricacies of maneuvering the ships through canals, and their ability to dock the vessels at various Great Lakes ports. They cannothire or fire any crew member or relieve any seaman from his duty. The pilots are not permitted to discipline the crew members or to assign them to 'various jobs aboard ship. Any recommendation of discipline by the pilot, for example involving a helmsman who has refused an instruction, is thereafter independently evaluated by the captain. The pilot appears on the bridge only when his special knowledge may be utilized. Thus, in open waters, the captain gives all the directions concerning navigation, and the pilot at that time leaves the bridge. However, when the pilot himself is direct- ing the ship's movement, either the captain or watch officer is at all times on or near the bridge. Either may countermand any instruction given by the pilot if in his judgment it is not proper under the circum- stances. The record reveals that such countermand is not limited to "extraordinary circumstances" involving a pilot's fitness for duty, but may occur whenever the captain's independent judgment and knowl- edge indicates another procedure is more feasible. Furthermore, even the watch officer can accept or reject speed and course instructions given by the pilot. If a pilot is drunk while on the bridge, the watch officer has the authority to relieve him of his duties. All this is in line with the fact that the captain is in full command of the ship, and responsibly directs every aspect of the voyage? In the performance of their jobs many classes of employees are authorized to give directions, as the pilots here, but such authority without more does. not constitute the employee a supervisor. See, e.g., N.L.R.B. v. Esquire, Inc., 222 F. 2d 253, 258 (C.A. 7), holding that a sound mixer who signals the employee operating a boom microphone is not responsibly "directing" another; The Baltimore Transit Com- pany, et al., 92 NLRB 1260,1263-1264, holding that radio dispatchers, who issue directions to operating personnel "over the movement of the equipment," from which "the direction of personnel occurs only as an incidental result," are not supervisors; F. M. Reeves and Sons, Inc., 114 NLRB 1243, 1244-1245, holding that an operator of a crusher is not a supervisor over truckdrivers to whom he gives "routine" direc- 7 "We repeat, a pilot is employed because of his presumed knowledge of currents , hidden obstructions, and other local dangers to navigation. He is in charge so far as giving steering directions, and it is customary for him to dock the ship , but the master is always in command of. his vessel and has the right to displace the pilot at any time."' +'The Framlington Court, et al. v. United British Company, 69 F. 2d 300 , 306 (C.A; -5). 120 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD tions; Union Street Railway Company, 93 NLRB 782, 784, 785, hold- ing that inspectors who issue instructions to busdrivers and others con- cerning schedules, routes, speed, equipment, etc., are not supervisors; Capital Transit Company, 98 NLRB 141, 144, 145, holding the same; New England Transportation Company, 90 NLRB 539, 540, holding that dispatchers performing similar duties are not supervisors. In the transportation industry, of which shipping is part, the Board has held that employees whose "direction and control," like the pilots here, "is concerned primarily with equipment rather than personnel,, and any direction or-control of personnel is incidental thereto" do not "responsibly direct" employees within the meaning of the Act and arel not supervisors, absent other indicia of supervisory authority. Capi- tal Transit Company, supra, at 145; Union Street Railway Company, supra, at 785; Baltimore Transit Company, 92 NLRB 688, 692; Balti- more Transit Company, supra at 1264; New England Transportation Company, supra, at 540. On enforcement of an order to bargain in a unit including "inspec- tors" (see 105 NLRB 582), the Court of Appeals for the District of Columbia in N.L.R.B. v. Capital Transit Company, 221 F. 2d 864, at pp. 866-867, agreeing with the Board, stated : There is evidence in the record which indicates that the control exercised by inspectors relates primarily to equipment. It tends to show that the inspectors' primary function is to keep' traffic rolling, in the event of tie-ups, by making ad hoc alterations of routes and schedules. To the extent that their direction of the, operators is related to that function, (e.g., ordering operators to. drive new routes), it might reasonably be viewed as incidental to their control over the movement of the vehicles. The court, however, remanded the case to the Board to consider other alleged duties of the inspectors "not so closely related to traffic control as to be merely incidental thereto," including claims that "inspectors" could "relieve from duty any operator" violating rules or driving recklessly (ibid., at 867). On remand, the Board (114 NLRB 617), reaffirming that "mere title" or "sporadic" authority does not establish supervisory status and that the supervisory power must be "real,"' found that the "inspectors" possessed no "real supervisory authority" and reaffirmed its original conclusion that they were not supervisors (ibid., at 629). On return to the court of appeals, this decision was; affirmed per curiam (38 LRRM 2681). We accordingly conclude that the pilots in this case are more akin to technically skilled employees giving sporadic instructions inPi- dental to. their navigational function than they are to supervisors performing the, basic act of supervision. Cf. N.L.R.B. v. Southern Bleachery k Print-Works, Inc., 257 F. 2d 235, 239 (C.A., 4), cert. denied 359'U.S. 911. CLARK PRINTING COMPANY, INC. 121 Nor is the pilot an independent contractor.' Our guide in deter- mining such status is the application of the "right of control" test. If the person for whom the services are performed reserves the right to control not only the end to be achieved but also the means by which the result is to be attained, an employer-employee relationship exists. Put another way, as Judge Learned Hand stated, "The test lies in the degree to which the principal may intervene to control the details of the agent's performance; and that in the end is all that can be said . . . ." 9 The record, as indicated above, fully reveals that the pilot's temporary direction of the helmsman and other crew members is always subject to the captain's continuous independent evaluation of the circumstances surrounding the navigation of the ship. The pilot's functions are integrated into the shipowner's maritime opera- tions in a manner characteristic of an employer-employee relation- ship (see Restatement of the Law of Agency, 2d, sec. 220(2) (h), p. 489) and, in our opinion, these pilots are employees, "as a matter of economic reality." U.S. v. Silk, 331 U.S. 704, 713. Furthermore, it would appear that in the application of our super- visory and independent contractor standards to the peculiar nature of the maritime setting of this case, we should consider what appears to be the somewhat different and more rigid aspects of discipline and responsibility existing aboard ship. Thus, although certain testi- mony, standing alone, may point to some form of supervisory or independent contractor status, the record taken as a whole persua- sively indicates that the pilots are "employees" functioning under the strict authority and responsibility of the captain and should remain subject to the benefits and obligations of the Act. 8 Congress broadly viewed as employees persons who "work for wages or salaries under direct supervision," and as independent contractors persons who "undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods , materials and labor and what they receive for the end result, that is, upon profit." H. Rept 245 on H.R. 3020, 80th Cong., 1st sess., p. 18. 8 Radio City Music Hall Corp. v. U.S., 135 F. 2d 715, 717 (C.A. 2). Clark Printing Company, Inc. and Amalgamated Lithographers of America, Local No. 25, affiliated with Amalgamated Lithog- raphers of America Clark Printing Company, Inc. and Amalgamated Lithographers of America, Local No. 25, affiliated with Amalgamated Lithog- raphers of America. Cases Nos. 17-CA-2138 and 17-RC-4050. February 26, 1964 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION On September 4, 1963, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the 146 NLRB No. 10.