Hydroscience, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1977

227 N.L.R.B. 1002 (N.L.R.B. 1977)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hydroscience, Inc. and Seafarers' International Union
of North America , Atlantic, Gulf, Lakes and Inland
Waters District, AFL-CIO, and Marine Engineers
Beneficial Association District Number 1-Pacific
Coast District , AFL-CIO,' Joint Petitioners. Case
21-RC-14316
January 13, 1977
DECISION AND DIRECTION OF
ELECTION
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Michael A. De
Grace on October 2, 1975. Following the hearing and
pursuant to Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, and by direction of the Regional Director
for Region 21, this proceeding was transferred to the
Board for decision. Thereafter, the Employer and the
Joint Petitioners filed briefs. The Joint Petitioners
also filed a motion to remand to the Regional
Director for further hearings on the day-to-day
operations on board the Employer's vessel, M/V
Seismic Explorer. On February 13, 1976, the Board
issued an order granting the motion and remanding
the proceeding to the Regional Director. Pursuant
thereto, the Regional Director, on March 9, 1976,
issued an order reopening the representation hearing
and, on March 31, 1976, a further hearing was held
before Hearing Officer Michael A. De Grace. There-
after, the Employer and the Joint Petitioners filed
supplemental briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearings and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
1. The Joint Petitioners seek to represent a unit of
employees of the Employer, herein also called Hydro-
science , consisting of all licensed and unlicensed
seamen aboard the M/V Seismic Explorer, excluding
all technicians, guards, watchmen, and supervisors as
defined in the Act. The Employer contends that the
petition should be dismissed on the grounds that the
Board does not have jurisdiction in the instant case
because the Employer is not an employer of the
employees herein sought, within the meaning of
Section 2(2) of the Act.
Hydroscience, Inc., is a Texas corporation with its
principal place of business in Dallas, Texas. It is
generally engaged in the research and development of
sonar equipment. The Employer also owns and
operates a seagoing vessel, the Motor Vessel (M/V)
Seismic Explorer, which engages in acoustical re-
search and development, and which, during times
material herein, has been engaged in oceanographic
research for the Office of Naval Research, United
States Navy. During the past 12-month period, it
performed services for the United States Navy valued
in excess of $50,000. During the current 12-month
period, it will provide national defense services
valued at approximately $300,000 under a contract
with the Navy.
Hydroscience was formed in October 1974 at the
request of the Navy, for the sole purpose of engaging
in classified undersea sonar research for the Navy
Department and other Government Agencies. To this
end, the Employer operates the M/V Seismic Explor-
er under a trio of contracts with the Navy. One
contract provides that the Employer will furnish the
ship plus routine maintenance at a daily rate. A
second contract provides that the Employer will
furnish a crew composed of 2 to 14 members at a
daily rate dependent on the size of the crew. The third
contract provides that the Employer will furnish
consumable items such as food, petroleum, and parts,
for which the Employer is paid costs plus a 5-percent
handling fee. The vessel carries a great deal of
research equipment, at least 90 percent of which is
owned by the Navy.
The Employer has 14 employees 2 on board the
Seismic Explorer when it is at sea . These include a
captain, mate, chief engineer, engineer, system engi-
neer, cook, cook's helper, and two seamen, all of
whom are included in the unit sought, and five
technicians, who operate and maintain scientific
equipment on board the vessel and otherwise assist
the Navy personnel in their research activities, and
whom the Joint Petitioners would exclude from the
unit. In addition, there are 16 persons on board the
vessel who are employed by the Navy and/or other
Federal agencies and who perform various classified
acoustical research functions for the Navy. These
employees are under the direct control and supervi-
sion of the chief scientific officer at the Naval
Undersea Center and are not involved in this
proceeding.
' The name of the Joint Petitioners appears as amended at the initial depending upon the Navy's needs and the length and nature of the voyage.
hearing Fourteen , however, appears to be the maximum both under the contract and,
2 The size of the Employer's complement can vary from voyage to voyage as a practical matter , that the vessel can accommodate
227 NLRB No. 150
HYDROSCIENCE, INC. 1003
The record reveals that the day-to-day operations
of the ship are divided between those who operate the
ship and those who engage in scientific experiments.
Employees comprising the ship's company, that is,
those-manning it, are assigned tasks by, and are under
the supervision of, the captain. They operate the
vessel, provide general maintenance and repair to the
vessel and its operating equipment, provide food
services, and the like.. The Employer's technicians
and the Navy personnel, on the other hand, are
assigned tasks by, and are under the supervision of,
the Navy's project manager on board the vessel. They
perform work related to the Navy's research missions,
including repair and maintenance of the scientific
equipment on board the vessel. The ship's company,
the technicians, and the- Navy personnel eat their
meals together and share acommon recreation room
and other limited leisure facilities aboard the vessel.
They assist each other only in unusual situations but
otherwise have regularly-assigned-duties which keep
them separated during normal working times. The
ship's company normally stands watch only in the
wheelhouse -or in the engineroom while the Navy
personnel and the technicians normally stand watch
only in the laboratories.
The record further discloses that the Seismic
Explorer operates under the direction and control of
the Employer. The Employer recruits, interviews,
hires, fires, and disciplines its employees and sets
their wage rates and,, fringe benefits -without any
consultation with the Navy.3 The Employer also
determines how, much leave an employee earns for
days spent at sea. And, while at sea, the vessel's
operation is subject to the control and supervision of
the captain. .
The Navy, on the other hand, as charterer of the
vessel and contractor for the Employer's services,
determines when the ship sails, where it goes, how fast
it travels, what routes it takes, how long it will be at
sea, what ports-it will stop in, when and for how long
it-will.be in port, the hours the ship operates, and thus
the employees' hours of work. The Navy also
determines the size and composition of the Employ-
er's employee complement required for the desired
naval operation. -
Although amount of leave earned by employees is
based on employer policy, actual length of shore
leave is necessarily determined by the length of stay
in port which, as stated, is determined by the Navy.
Similarly, although decisions with respect to layoff
and recall of its employees rest exclusively with the
3 Charles Morningstar, the former Navy program manager for the
Seismic Explorer, testified that he had no knowledge of how much the
Employer paid its employees and, while he knew of one employee who
wanted a higher salary, he had no idea how much the employee wanted, how
much he was currently receiving, or how the salary dispute was resolved. He
also testified that he was not involved in direct day-to-day supervision of the
crew.
Employer, those decisions are necessarily influenced
by the Navy's-needs.
The Navy may request that a particular employee
on board be fired for any reason or for no reason,- and
the Employer, in the interest of maintaining harmoni-
ous relations, will comply with such request. This has
occurred only once, when the Navy project manager
aboard the vessel requested that the. ship's cook be
replaced because, according- to the testimony, he was
not a good cook.
- Based on -the foregoing evidence, the Employer
contends that the United States Navy exercises sucha
substantial degree of control- over the working
conditions of the Employer's' employees as to render
it a joint employer of the-employees. Additionally, the
Employer contends that it shares the Navy's exemp-
tion from the. Board's jurisdiction because its opera-
tions of the M/V Seismic Explorer are "intimately
connected" with the Navy's sonar, research ' endeav-
ors. We disagree with both contentions.
The question of whether a nonexempt contractor,
such as the Employer here, is a joint employer with
the exempt institution for which it performs services
under a contract is essentially a factual one which
must be decided on the basis of thefacts in each case.
Thus, we have held that "where the exempt employer
exercises substantial control over the services and
labor relations of the nonexempt contractor, so that
the latter is left without sufficient autonomy over
working conditions to enable it to bargain effica-
ciously with the union, that in itself is reason enough
for declining jurisdiction, for the contractor is not
required `to do the impossible' or to engage in a mere
`exercise in futility' ...." 4
In the instant case, the facts reveal that the Navy, as
the charterer of the M/V Seismic Explorer and the
contractor for the Employer's services, determines
when the ship sails, where it goes, what routes it takes,
how long it remains at sea, where and how long it will
be in port, and what the size and composition of the
crew will-be. All of these decisions, although made by
the Navy to carry out its research missions , necessari-
ly have an effect on the crew's working conditions
and govern the length of time employees are at sea
and the duration and timing of their shore leave.
These factors, however, do not establish that the
Employer "is left without sufficient autonomy over
working conditions to enable it to bargain effic?.-
ciously with the union." 5 To the contrary, the
Employer has complete control over the essentials of
the employment relationship. Thus, the Employer
4 Rural Fire Protection Company, 216 NLRB 584, 585-586 (1975).
Member Fanning agrees with the result here. See his dissenting opinion in
Rural Fire Protection.
5 Mid
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recruits, hires, fires, establishes and/or negotiates
wage rates, and disciplines its employees. Further-
more, when the vessel is at sea, the employees whom
the Joint Petitioners seek to represent are under the
complete control and authority of the captain, a
representative of the Employer. And, although the
scheduling of shore leave is dependent on when and
for what length the ship is import, the amount of such
leave which the -employees accrue is determined
exclusively by the Employer. In these circumstances,
we find -that the Navy does not exercise such
substantial control over the labor relations of the
Employer as to render the latter impotent to bargain
meaningfully with the Union.6
We also disagree with the Employer's contention
that the operation of the ship is so "intimately
connected" with the Navy's function of engaging in
oceanographic research as to render the two joint
employers. The employees in the unit sought operate
and maintain the vessel, prepare meals, keep the mess
hall, lavatories, and sleeping quarters clean, maintain
the engines, etc. They provide needed support servic-
es to the Navy, but they have no role, except in the
unusual emergency situation, in the Navy's scientific
mission. Accordingly, based on the foregoing, and the
entire record herein, we fmd that the Employer is an
employer within the meaning of Section 2(2) of the
Act and that it will effectuate the purposes of the Act
to assert jurisdiction herein.
2. The Employer stipulated that each of the
Unions comprising the Joint Petitioners is a labor
organization within the meaning of Section 2(5) of the
Act, but declined to stipulate that the Joint Petition-
ers, as a single entity, is a labor organization within
the meaning of the Act. Representatives of each of
the Joint Petitioners testified that the Joint Petitioners
intend to bargain jointly with -the employer for a
single contract on behalf of all the employees in the
requested unit. These facts clearly distinguish this
case from Automatic Heating & Service Co., Inc., 194
NLRB 1065 (1972), on which the Employer relies in
urging that the petition be dismissed. Unlike the facts
in that case, there is no evidence here that the two
Unions are merely masquerading as joint petitioners
without any intention of bargaining jointly on behalf
of all employees in the unit. The fact that the two
labor organizations have not heretofore bargained
jointly is insufficient to contradict the testimony that
they intend to do so if certified.7
Accordingly, we find that the Joint Petitioners are
labor organizations within the meaning of Section
2(5) of the Act and that they claim to represent
certain employees of the Employer.
3. 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.
4. The Joint Petitioners seek to represent a unit of
employees of the Employer consisting of all licensed
and unlicensed seamen aboard the M/V Seismic
Explorer, excluding all technicians, guards, watch-
men, and supervisors as defined in the Act. The
Employer contends that the technicians should be
included in the unit. We disagree. The record
establishes that the technicians, unlike the, other
employees sought, work closely with the Navy
personnel in connection with the Navy's research
projects. They are assigned tasks by, and are under
the supervision of, the Navy's project manager on
board the vessel rather than the captain. They possess
certain skills and knowledge which the ship's compa-
ny does not have. And, except for the fact that they
eat in the same area and use the same limited
recreation facilities as do the employees who man the
ship, they have little day-to-day contact in their work
with them. Accordingly, we fmd that the technicians
do not share a sufficient community of interest with
the employees sought and we shall, therefore, exclude
them from the unit.
We find, therefore, that the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All licensed and unlicensed seamen employed by
the Employer aboard the M/V Seismic Explorer,
excluding all technicians, guards, watchmen, and
supervisors as defined in the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]
6 See Marianas Stevedoring & Development Co., Inc., 182 NLRB 1043 7 Utility Services, Inc., 158 NLRB 592, 593 ( 1966).
(1970).