Casebeer & Foland

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD does not indicate moral turpitude on the part of Brown or Welch , nor warrant departure from the Board's usual practice of requiring reinstatment with backpay for discriminatorily discharged employees. CONCLUSION OF LAW 1. Neither Brown nor Welch has engaged in any conduct which would warrant relieving Respondent of the duty to reinstate them with backpay. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusion of law, it is recommended that the Board reaffirm its order of December 19, 1963, in all respects, except that paragraph 2(a) thereof be amended to read as follows. Offer to John J . Welch and Paul Brown , and each of them immediate, full and unconditional reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make each of them whole in the manner set forth in the Intermediate Report of Trial Examiner Mullin, with interest on the backpay due at the rate of 6 percent per annum. Robert Casebeer & Herman Foland, d/b/a Casebeer & Foland, A Partnership and National Maritime Union of America, AFL-CIO, Petitioner. Case No. 20-RC-5887. November 16, 1964. DECISION ON REVIEW AND DIRECTION OF ELECTION On May 25, 1964, the Regional Director for Region 20 issued a Decision and Order in the above-entitled proceeding in which he dismissed the petition on the ground that the captains of the whaling boats involved are independent contractors and the crewmen are their employees rather than employees of the Employer.' Thereafter, pur- suant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, the Petitioner filed with the Board a timely request for review of such Decision and Order asserting that the Regional Director's decision was clearly erroneous. A statement in opposition was filed by the Employer. On August 3, 1964, the Board, by tele- graphic order, granted the request for review. Thereafter, the Em- ployer filed a brief in support of the Regional Director's Decision and Order. 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 McCulloch and- mem- bers Brown and Jenkins]. - - The Board has considered the Petitioner's request for review, the Employer's opposition thereto and supporting brief, and the entire i In support of this the Region a l Director relied upon •F Alaoto Co , d/b/a Frank Alioto, Fish Co , of al, 129 NLRB 27, and certain earlier cases to the same effect. 149 NLRB No. 62. . CASEBEER & FOLAND 743 record in the case with respect to the Regional Director's determination under review,2 and makes the following findings : The Employer is in the business of catching whales on the high seas. For this purpose it owns two whaling vessels; which it equips, main- tains, and insures. These vessels are operated under an arrangement with designated captains, which is apparently terminable at will. The captains have virtually complete control over the selection, discharge, and size of the crews sought herein. They exercise full discretion as to the actual catching of the whales and fix all time schedules and other working conditions. The captains and crewmembers furnish their own food, clothing, and foul-weather gear. The earnings of the captains and crewmembers are determined at the beginning of each season by negotiations, wherein the Employer agrees that each classification on the vessels will receive a specific amount for each foot of whale caught. When the vessels return with the catch, the Employer compensates directly each member of the crew and the cap- tains by separate check on the basis of the aforesaid prior agreement, making appropriate deductions for taxes and for food which is pur- chased on the Employer's account. The Employer keeps a personnel sheet on each crewmember and the captains on„which it records the amounts paid. If no whales are caught on a particular voyage, the Employer advances money to the captains and crewmembers subject to reimbursement. On occasion, during bad weather, the Employer will pay crewmen for repair work on the vessels. The Employer has the right to make trips on the vessels in situations it deems to be an emergency. The captains are required to turn over to the Employer the entire catch and may not otherwise dispose of it. . Although there are certain factors which indicate that the captains are independent contractors, and the crewmembers are employed by the captains, the record as a whole convinces us that the Employer exer-. cises, or has the right to exercise, sufficient control over the personnel and operation of the vessels to warrant a finding-and we so find-that the captains and crewmembers are employed by the Employer. In reaching this conclusion, we find that there are certain significant factual differences between the Alioto.case, supra, which the Employer and the Regional Director cite as their principal authority, and the instant one which warrant a different result. Thus, in the instant case, the Employer advances money to the captains and crew on occasion and permits food purchases for the crew to be charged to his. account; the Employer on occasion pays the crewmembers to work on the vessels 2 The Regional Director denied the Employer's motion to dismiss the petition on juris- dictional grounds. We affirm the -Regional Director's findings that Casebeer & Foland and Golden Gate Fishing Co constitute a single Employer whose combined operations satisfy the Board's jurisdictional standards, and that it will effectuate the policies of the Act to, assert jurisdiction over the Employer 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during bad weather; the Employer has the right to make trips on the vessels in the event of an emergency; the captains are required to de- liver all catches to the Employer; and in negotiations between the cap- tains and the Employer, the specific amounts of compensation for the various crewmembers as well as the captains are established .3 Accord- ingly, we find, contrary to the Regional Director, that the captains are not independent contractors and the crewmembers are not their em- ployees but are employees of the Employer, and shall direct an election in a unit composed of them. We therefore find that a question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, and that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(c) of the Act: All crewmen employed on the whaling ships Lynn Ann and Sioux City, excluding the captains and all supervisors. [Text of Direction of Election omitted from publication.] 8 We also find the other cases cited by the Employer and Regional Director distinguish- able on their facts. Cadillac Motor Division, General Motors Corporation and Charles Mullen. Case No. 7-CA-4414. November 17, 1964 DECISION AND ORDER On April 21, 1964, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Gen- eral Counsel filed exceptions to the Trial Examiner's Decision together with a supporting brief, and the Respondent filed an answering brief. 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 [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner as modified herein. 149 NLRB No. 79.