F. H. Snow Canning Co., Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1957

118 N.L.R.B. 284 (N.L.R.B. 1957)

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Petitioner and later withdrawn .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.