Sea Food Producers Association of New Bedford, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1951

95 N.L.R.B. 1137 (N.L.R.B. 1951)

SEA FOOD PRODUCERS ASSOCIATION OF NEW BEDFORD, INC. 1137
and with the melters on each of the other two shifts are two laborers.
None of the melters has the authority to hire, discharge, or promote;
nor have they the authority effectively to recommend such actions.
Although the record indicates that the melters assign work to the ]a-
borers, this allotment of duties is routine and does not require the use
of independent judgment as these employees perform the same opera-
tions every day. Accordingly, we find that the melters are not super-
visors and therefore should be included in the unit.
The laboratory operations are performed by a metallurgist, one
chief chemist, two chemists, and one trainee chemist. The record re-
veals that the metallurgist's work requires a high degree of scientific
knowledge, and that the metallurgist must have a college education, or
the equivalent thereof. As the metallurgist lacks a community of
interest with the production and maintenance employees, we shall ex-
clude him from the Unit .4 The remaining laboratory employees are
not required to have any academic education. Nor does the routine
nature of their duties necessitate prior chemical experience or pro-
longed on-the-job training. Hence, although the employees here in
question are called chemists, their background and their duties lead
us to conclude that they are similar to laboratory testers such as the
Board has included in production and maintenance units.5 Accord-
ingly, we shall include the chief chemist, the chemists, and chemist-
trainee in the over-all unit.
We find that all production and maintenance employees at the Em-
ployer's Longview, Texas, plant, including the storeroom, billing, and
production clerks, the melters, the chief chemist, chemists, and chemist
trainee, but excluding the metallurgist, guards, clerical employees,
and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
4 National Cash Register Company, 95 NLRB 27.
5 See Wm. P. McDonald Corporation, 83 NLRB 427.
SEA FOOD PRODUCERS ASSOCIATION OF NEW BEDFORD, INC. and FISH
LUMPERS' UNION, LOCAL 1749, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL, PETITIONER. Case No .1-RC-3106. August 16,
1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Robert E. Green,
95 NLRB No. 145.
1138 DECISIONS OF NATIONAL; LABOR RELATIONS BOARD
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and, are hereby affirmed.
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. Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds:
1. The members of the Sea Food Producers Association of New
Bedford, Inc., hereinafter called the Association, are engaged in
commerce within the meaning of the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer?
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) .(1) and Section 2 (6) (7) of the Act.
4. The Petitioner seeks -a unit composed of individuals known as
fish lumpers whose duties, described below, are performed on or in
connection with vessels operated by the members of the Association.
The Association takes the position that, with minor exceptions, its
members are not the employers of the fish lumpers and that the unit
is therefore inappropriate.
The Association has about 170 members who own about 135 fishing
boats operating out of the harbor of New Bedford. It was formed
for the purpose of protecting the interests of its members and, among
the services performed, has been the negotiation of collective bargain-
ing agreements for its members. The fishermen employed on the
boats (including the engineer, cook, mate, and the crew members)
are paid on what is known as a lay' arrangement; that is, the "gross
stock" (money received from the sale of the catch) is distributed
among the boat owners and crew according to agreed upon percent-
ages after certain expenses are first deducted from the gross stock.
An integral part of the fisherman's work, compensated for in. his
share of the lay, has always been the unloading of the fish from the
boat. 'This work, is known in the trade as "fish lumping." In recent
years, as the economic condition of the fishermen improved, the fisher-
men, for personal reasons, frequently began to obtain others to do
their share of the lumping. In addition, as indicated below, the boat
owners, from time to time, find need for the services of additional
lumpers over and above what can be provided by the boat crews. As
a result there has developed in the New Bedford Harbor a pool of
Jumpers who, on a day-to-day basis, do lumping work as well as related
duties, such as loading ice and stores, in connection with.the boats of
1 Atlantic Fisherman's Union, affiliated with Seafarers International Union of North
America, AFL, was permitted to intervene at the hearing.
SEA x'OOD PRODUCERS ASSOCIATION OF NEW BEDFORD , INC. 1139
the members of the Association, among others. It is this group of fish
lumpers that isinvol'vedin the instant petition.
Although not clearly indicating which is the most common method,
the record indicates that Jumpers are hired in any one of the follow-
ing, four manners : (1) The larger boats, and some of the smaller ones
hire extra Jumpers to assist in the unloading of a particularly heavy
catch. The wages are regarded as a general expense and paid out
of gross stocks; (2) occasionally, while a boat is in port it requires
engine repairs. A Jumper who is paid out of the boat owner's' share
of the lay is hired to perform the lumping that would otherwise be
performed by the engineer; (3) a fisherman who does not wish to do
his share of the lumping may tell the mate to get a replacement for
him. When this is done; the boat owner deducts the Jumper's wages
from the fisherman's share of the lay; (4) as in the third instance, the
fisherman, for personal reasons, does not desire to do any fish lump-
ing. However, in this instance he hires and pays the Jumper obtained.
as his replacement. entirely on his own, merely reporting the fact to
the mate. Apparently such hiring is common practice and is sanc-
tioned by the boat owners, who keep no records of the hire and pay of
Jumpers personally obtained as replacements by the fishermen
themselves.
The Association contends that its members are not the employers
of the fish Jumpers, except perhaps in the first of the four situations
described above, where the Jumpers' wages come out of the gross stock.
We find no merit to this contention. In all of the first three categories
the Jumpers are hired directly by the boat owners, through their
mates or captains, and the boat owners withhold social security and
withholding taxes from the lumpers' salary. Although the Associa-
tion states that its members have "no right of control over the em-
ployees actions," the record is devoid of any evidence, and we have no
reason to believe, that the boat owners exercise any less control over
the manner in which the Jumpers perform their duties and over the
tenure of their employment than would be true of any case in which
individuals are hired to perform a purely routine physical job.
As to those lumpers described in category 4, above, who are hired
and paid by the fishermen out of their own remuneration, we note
that the practice has been in existence for many years with the express
or implied consent of the boat owners, and it is clear that here, no
less than in the other three situations, the Jumpers, when acting as
substitutes for the crew members are performing duties which con-
stitute an integral part of the boat owners' business. The hiring may
have been delegated to the fishermen, and the method and amount of
compensation may be a matter for private arrangement between the
961974-52-vol. 95-73
1140 - 'DECISION,S-,OF NATIONAL LABOR RELATIONS BOARD
lumper and the'fisherman, but we find nothing that suggests. that the
boat owners have thereby relinquished any essential control over the
manner in which the job is performed by the lumpers hired as replace-
ments for crew members. Under all these circumstances, we can
attach no controlling significance to the 'manner of hire and pay
utilized, and we find that the fish Jumpers involved herein are em-
ployees of the members of the Association, regardless of which of the
four hiring arrangements is involved.
We further find that the members of the Association have delegated
to the Association authority. to represent them in collective bargain-
ing, and by their past participation, through the Association in joint
bargaining have evidenced an intent to be bound by group rather than
by individual action in collective bargaining. Accordingly, we con-
clude that an association-wide unit as sought by the Petitioner is
appropriate.
We therefore find 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 fish lumpers, whose duties
'include loading fish from, and loading ice and stores aboard, the
fishing vessels of the members of the "Association, excluding guards 2
all other employees and supervisors as defined in the Act.
5. The record indicates that there are some fishermen who do occa-
sional lumping over and above their normal duties, and that
"strangers" will sometimes be hired as lumpers by the fishermen. We
do not believe that those employees who spend only a minor portion
of their working time in the industry as Jumpers may be said to have
a sufficiently substantial interest to entitle them to vote in the selec-
tion of a bargaining representative, although we believe they may be
represented in respect to that part of their employment in which they
act in such capacity. Accordingly, we shall direct that even if all
other voting requirements discussed below are met, only those employ-
ees who devote the major portion of their working time to, or derive
the major portion of their earnings from, the occupation of lumping
shall be eligible to vote in the election directed herein. During a
given period, a lumper may have worked most of the time for fishing
vessels that are not members of the Association and yet the lumper
may get enough work on boats of members of the Association through-
out the season to give him a vital interest in the selection of a bargain-
ing representative. In- the particular circumstances, we find that all
persons in the unit who have worked for any members of the Associ-
ation during the 90-day period immediately preceding the date of the
2 Although the record indicates that some of the lumpers spend a part of their time
.guarding the boats at night, it does not disclose the proportion of time so spent as to
any individuals. Any lumpers who in fact spend more than one -half their tinre in the
performance of guard duties shall be deemed to be excluded from the unit as guards.
S. H. Kress & Company, 93 NLRB 614.
STANDARD LIME..AND STONE COMPANY, ,..., 1144
issuance of the notice of election shall be eligible to oote.3 Where no
records of employment are available for persons .who meet these vot-
.ing requirements, these persons shall establish their eligibility by an
affidavit to be furnished to the Regional Director, in, which. they shall
certify that they have met all of the voting , requirements described
above.
Because of the seasonal nature of the industry, and iri.order to ex
tend the franchise to the greatest number of eligible voters, we direct
that the election be held at or near the peak of the 1951 season on a date
to be determined by the Regional Director.
[Text of Direction of Election omitted from publication in this.
volume.]
' See Norcat Packing Company, 76 NLRB 254.
of the Pacific Coast, et at., 72 NLRB 3tt6.
See Waterfront Employers Association
STANDARD LIME AND STONE COMPANY and UNITED CEMENT, LIME AND
GYPSUM WORKERS, INTERNATIONAL UNION9 AFL, PETITIONER . Case
No. 5-RC-844. August 16, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before John H. Garver, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed."
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-mem-
ber panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. The Employer and Local 337, urge a contract bar to a present
determination of representatives. The Petitioner and the C. I. ,0.
take a contrary view that the contract is not a bar.
On June 9, 1950, the Employer and the United Construction
Workers, UMWA, entered into their most recent contract 2 which waq
to be effective until July 1, 1951, and thereafter from year to year
'United Gas, Coke and Chemical Workers of America, CIO, was permitted to intervene
on the basis of interest shown. Local Union No. 337, United Construction Workers,
UMWA, was permitted to intervene on the basis of current contractual interest. Herein-
after the United Coke and Chemical Workers of America, CIO, ;will be referred to as
CIO and Local Union No. 337, United Construction Workers, UMWA, as Local 337.
2 The collective bargaining relationship of the parties commenced.4uing 1946.
95 NLRB No. 148.