Borden Co.

F. H. SNOW CANNING COMPANY 1075 by the Chemical Workers, but not to that Union or its members. Our determination is limited to the particular controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in this proceeding, the Board makes the following Determination of Dispute pursuant to Section 10 (k) of the Act : 1. Employees of Northwest Natural Gas Company, who are repre- sented by International Chemical Workers Union, Local 133, are enti- tled to perform the work of new construction of gas mains and lines in Astoria, Oregon, including service lines to customers. 2. United Association of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and Canada, Local No. 573, AFL-CIO, and Clatsop and Tillamook Counties Building and Construction Trades Council, AFL-CIO, are not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require the Company to assign the above work to employees who are represented by them. 3. Within 10 days from the date of this Decision and Determination, the Plumbers and the Council shall notify the Regional Director for Region 36, in writing, whether they will refrain from forcing or requir- ing the Company, by means proscribed by Section 8(b) (4) (D) of the Act, to assign the work in dispute in a manner inconsistent with the above determination. F. H. Snow Canning Company, a Division of the Borden Company and National Maritime Union of America , AFL-CIO, Petitioner. Case No. 4-RC-6489. January 19,1966 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Alexander T. Graham, Jr. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Fol- lowing the hearing and, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Pro- cedure, Series 8, as amended, by direction of the Regional Director for Region 4, this case was transferred to the National Labor Relations Board for decision. Briefs have been filed by the Employer and the Petitioner. 156 NLRB No. 95. 217-919-66-vol. 156-69 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire record in this case, including the briefs filed by the parties, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 2. The labor organization involved claims to represent certain employees of the Employer. 3. The Petitioner seeks to represent a unit of all crew members employed aboard clamming vessels owned by the Employer, excluding, however, the captains as supervisors. The Employer contends that the captains are independent contractors, who lease their boats from the Employer and then engage a crew to perform the work and that, there- fore, the crewmen are employees of the captains and not of the Employer. The Company is engaged in the business of processing and canning sea clams at plants located in Point Pleasant Beach, Cape May, and Wildwood, New Jersey, and Pine Point, Maine. Its principal raw material is sea clams which are caught offshore by clam dredging ves- sels. The Company owns 14 vessels, l of which is used for experimental purposes. The other 13 are equipped for clam dredging and are oper- ated for that purpose by individuals who captain the ships. The relationship between the captains and the Company was out- lined by a series of agreements which were entered into between the captains and the Company. From January 14, 1957, through June 1964, both under written and oral agreements, the captains and their crews were paid pursuant to what was known as the "broken-forty system." 1 The gross price per bushel of clams was established and the captains received a weekly check from the Company for the gross amount based on the amount of clams caught. The captains would then deduct expenses for fuel, oil, chart paper, propane gas, and book- keeping and remit to the Company 40 percent of the net amount as rental for the boat. The remainder would be divided by the captains between themselves and their crews. From January 14, 1957, when the captains received 1.75 gross per bushel, the rate decreased until it reached 1.15 per bushel sometime prior to June 1964. During this period the captains were also paid an additional 10 cents per bushel by the Company. 'There were written concurrent charters and clam purchase agreements in effect only from January 14 to June 14, 1957, covering the authority , obligations, rights, and financial arrangements of the Company and the captain for each boat . Thereafter, the captains and the Company operated on a verbal basis. F. H. SNOW CANNING COMPANY 1077 In June 1964 the Company changed the method by which the cap- tain's share was computed. Under this method the captains received a straight 57 cents per bushel which was then later raised to 62 cents per bushel. The captains then paid a portion of that amount to their crew members. As these sums were net amount, no bookkeeping deductions such as the vessel's rental and costs for fuel, oil, and pro- pane were made by the Company. On September 8, 1965, after the petition herein was filed, the Company introduced another arrange- ment which presently governs the compensation of captains and crew. Under what is called a clam boat lease agreement, the captains are designated as the lessees of the vessels for which they pay the Company $1,500 per month. The Company retains 60 cents out of a $1.40 price per bushel of clams bought in by the boat until the $1,500 per month rental is satisfied. The term of this agreement is 1 year except that either party may terminate after 2 days under certain circumstances. Under all these agreements, the Company carried insurance, main- tained the boats in good repair, and supplied the special equipment for clam dredging, including suitable replacement parts when neces- sary. The Company determined when such repairs were required and when they would be made. The captains were permitted to use the boats for the sole purpose of clamming. When so operating they had complete management and navigational control of their vessels as well as the right to choose the location for dredging. They also determine under what weather and sea conditions to sail. Management of the boat includes hiring, terminating, and disciplining the crew members as well as determining their hours of work and rates of pay. The Company contends that its captains are independent contrac- tors and, therefore, not employees within the meaning of the Act. It relies upon a previous Board decision to that effect,2 asserting that the relationship between the captains and the Company has remained substantially the same. When the Board previously considered this issue, the 1957 written agreements as described above had just been placed into effect. In concluding that the captains were independent contractors in that deci- sion, the Board examined the existing contractual arrangement and although it viewed many elements in the then-existing practice as tending to establish an employment relationship, it regarded certain factors encompassed by the agreements,3 including the fixed term thereof, as rebutting the inference that the Company retained control and that the captains were supervisors. Thus, despite a past practice supporting a contrary conclusion, the Board accorded controlling 2 F. H. Snow Canning Company, Inc., 118 NLRB 284. 8 The Board relied upon the fact that the captains thereby received an agreed-upon price for the clams they sold to the Company, that they were free to hire, terminate, and determine the working conditions of the crew, and that they kept records of their boats' operations including the withholding of taxes and the payment of social security. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weight to the apparent intent of the new agreements. While the pres- ent agreement like the 1957 predecessor indicates that similar incidents of control reside in the captains, there is ample evidence in the record of the experience that has evolved under the previous agreements and the subsequent arrangements which sheds additional light on the nature of the relationship between the Company and its captains. In view of the record herein, we find that the previous decision warrants recon- sideration. The determination of whether an individual is an independent con- tractor or an employee under the Act is dependent upon the nature and the amount of control reserved by the person for whom the work is performed. When such person reserves the right to control the result and direct the manner and means of accomplishing the work, an employer-employee relation exists. This nature of the relationship must be resolved upon consideration of all the facts of each case, and no one factor is determinative 4 The record shows that under all of the agreements and arrange- ments, the methods of payment as well as the fluctuating amount per bushel paid the captains were unilaterally established by the Company. Instead of contract negotiations occurring between the Company and the captain involved and culminating in a mutual understanding and agreement, a company official would call the captains together, advise them of the terms of the agreements, and then ask them for their approval on a take-it-or-leave-it basis. In this regard, there was evi- dence that when one of the captains refused to agree to the different method of payment unilaterally established by the Company in June 1964, his employment was terminated. Thus, the Company, in formu- lating the agreements that purported to define the basic relationship between itself and the captains, exercised the type of control that is generally found to exist between an employer and his employees rather than between a principal and an independent contractor. The Company, however, urges that the captains are independent contractors because, like entrepreneurs, they can by exercise of their own judgment increase their profits from operation of the boats. While the incentive arrangements contained within the above-mentioned agreements seem to allow the captains an opportunity to increase their profits through the sound operation of their boats, the record shows that as a practical matter the captains have little opportunity to make deci- sions which will affect their profit and loss. Thus, there is evidence that the Company did not change the methods of payment and the amounts paid per bushel of clams on a haphazard basis. These changes were the result of mathematical calculations based upon the Company's records as to the average number of bushels of clams a captain can catch in a day, the average number of days the captains could generally work 4 Farmers Insurance Group, et al., 143 NLRB 240. F. H. SNOW CANNING COMPANY 1079 in a year, and the average cost of operating a boat over the year. By altering the methods of payment as well as amounts paid per bushel the Company was thereby able to establish within narrow limits a ceil- ing on the maximum earnings the captains could receive in a year. At the same time, because the captains were paid a flat sum per bushel of clams, and the Company absorbed the major expenses (those attributed to owning, maintaining, and equipping the vessels) the captains did not risk any capital loss which might have come from inefficient man- agement on their part. The record indicates that the risk of loss is further minimized under the present agreement since the Company will "carry" the captains in the event they cannot meet their rent because of poor weather or the faulty operation of their boats. Although it might appear that under the written agreements the captains were able to increase their income by the efficient and economi- cal management of their boats on a day-by-day basis, this in fact did not occur. Thus, while the 1957 and the present agreement required that the captains furnish supplies for the boats, and theoretically pre- sented the opportunity to profit by selective purchasing, the record shows that they made all such purchases from the Company at the lat- ter's facilities with the charges therefor offset against the payments due the captains and the crew. And, under the arrangement in exist- ence between June 1964 and September 1965, there was not even the appearance of an opportunity to profit through purchases of supplies since the Company at that time assumed the responsibility for such cost. In addition, the Company has at times limited the number of clams it will buy and while the captains do have the right to sell clams in excess of this quota to other buyers, there was evidence that such a market was not readily available in the area. Further, the Company has the right to inspect the clams for size and conditions and make a final determination on whether or not to purchase clams. Nor does the record otherwise establish that the captains are inde- pendent contractors. Although the captain is the complete master aboard his boat, such control is in accord with maritime tradition and would obtain regardless of whether he is an independent contractor or an employee. Furthermore, the Board has held in similar circum- stances that "[t]he existence of an area in which judgment may be exercised by a skilled worker is not inconsistent, or incompatible, with the existence of an employment relationship." 5 In any event, the Com- pany here has retained substantial control over the overall business operation. Thus, the boats are owned by the Company; the contracts while providing for a fixed term may be terminated on short notice upon numerous grounds, thereby ending the entire arrangement between the Company and the captain; the captain must turn over the entire catch to the Company at a predetermined fixed price if the Com- a Southern Shellfish Co., Inc, 95 NLRB 957, 962. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany wants it; the Company pays all costs of keeping the boat in repair and makes all decisions concerning when and where major repairs are to be made; the Company carries indemnity insurance which protects the captain as well as his crew ; and the captain is prohibited from using the boats for any purpose other than clamming. In view of the foregoing and the record as a whole, we find that the captains are not independent contractors but are supervisors and the crew members are employees of the Employer.(' We therefore find that a question affecting commerce exists concerning 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. 4. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All crew members employed aboard clamming vessels owned by the Employer, excluding captains. [Text of Direction of Election omitted from publication.] e East Coast Trawling 4 Dock Company, Inc., 153 NLRB 1354; William P. Riggin Son, Inc., 153 NLRB 135 '8. To the extent that the Snow case, footnote 2, supra, is in- consistent with this finding, it is hereby overruled. Westinghouse Electric Corporation and Salaried Employees As- sociation of the Baltimore Division, Federation of Westing- house Independent Salaried Unions. Case No. 5-CA-3033. January 21, 1966 DECISION AND ORDER On August 11, 1965, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a support- ing brief. The National Labor Relations 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 con- sidered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the following modifications. 156 NLRB No. 96.