A. A. Fagen, et al.

National Labor Relations Board - Board Decisions

Apr 29, 1947

73 N.L.R.B. 680 (N.L.R.B. 1947)

In the Matter of A. A. FAGEN, ET AL., EMPLOYERS and EAST COAST
FISHERMEN'S ASSOCIATION, INC., PETITIONER
Cases Nos. 10-R-2410,-10-R-3411; 10-R -413; 10-R-(2416-2419);
10-R-2421,, 10-R-94422; ` 10-R=(YO4`-'O. 8).-Decided April -29;
1947
Mr. Amedeo A. Meitin, of St. Augustine, Fla., for the Employers.
Dunham & Dunham, by Mr. Donald Dw ham, of St. Augustine,
Fla., for the Petitioner.
Miss Irene R. ,S'hriber, of counsel to the Board.
DECISION -
AND
CERTIFICATION OF REPRESENTATIVES
Upon separate petitions 1 duly filed, the National Labor Relations
Board on January 29, 1947, conducted separate prehearing elections
among employees of the Employers in the units alleged to be appro-
priate to determine whether or not they desired to be represented by
the Petitioner for the purposes of collective bargaining...
At the close of the elections, Tallies of Ballots were furnished the
parties. The election results as revealed in the Tallies are listed in,
Appendix A, herein.
Thereafter, a hearing was held at St. Augustine, Florida, on Febru-
ary 26, 1947, before Alba B. Martin, hearing officer. The hearing
officer's rulings made at the hearing are free from prejudicial error11 1
and are hereby affirmed. ,
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS
Each of the Employers 2 does business in St. Augustine, Florida, as
an individual owner or a partnership and is engaged in catching shrimp
and other seafood in the Atlantic Ocean and the Gulf of Mexico.
1 These cases were ordered consolidated by the Board on February 17, 1947.
2 The names of the individual Employers are listed in Appendix A.
73 N. L. R. B., No. 129.
680
A. A. FAGEN,` ET AL. _681
Annually, each Employer sells more than $15,000 worth of seafood, 75
percent, of which is shipped to points outside the State of Florida.
All the Employers herein admit , and we find , that each of them is
,engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATION INVOLVED
'East Coast Fishermen's Association, Inc., is an unaffiliated labor
,organization, claiming to represent employees , of .. each of the
Employers 3
III. THE QUESTION CONCERNING REPRESENTATION
Each of the Employers refuses to recognize the Petitioner as the
exclusive bargaining representative of its employees until the Peti-
tioner ,has been certified 'by the Board in an appropriate unit.
We find that a question affecting commerce has arisen concerning
the representation of the employees of each of the Employers herein,
within the meaning of `Section 9 (c) and Section 2 (6) and (7) of
the Act.
IV. THE APPROPRIATE UNITS
We find, in accordance with a stipulation of the parties, that all the
fishermen who operate and work on the boats of each of the Employers,
excluding all supervisory employees with authority to hire, promote,
'discharge, discipline, or otherwise effect changes in the status of
employees or effectively. recommend such action, constitute separate
units appropriate for the purposes of collective-bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The following issues were raised at the hearing relative to-the
afore-mention'ed elections :
Employers Sam Ursino in Case No. 10-R-2418 and T. 0. Taylor
in, Case No. 10-R.-2413 contend that a majority, of their respective
employees did,not vote for the Petitioner and that the election results
are inconclusive. The record shows that at the time of the elections
there were five eligible voters in Ursino's employ, two Of whom cast
ballots, both of ..which were for the Petitioner;-and that there 'were
four eligible, voters inTaylor's employ ,'two of whom'cast ballots; both'
s At the hearing , the Employers contended that the Petitioner, a Florida corporation, 'is
not a labor'organization within the meaning of the Act because it has no authority .under its
.charter'to negotiate ' and enter into contracts with employers on behalf of its members. 'This
contention is lacking in merit . The Petitioner is`glven "full power ''to contract, sue and be
sued" under its charter and has been designated by employees to represent them for the
purposes of collective bargaining . It is, therefore , a labor organization ,within the meaning
of Section 2 (5) of the Act.
'682 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD
of.which were for the Petitioner. The Board and.the courts have con-
sistently held that "majority" means a .majority of the valid votes cast
in the election, subject to, the. qualification that the,-results of the
balloting be representative.4 We find-that a representative vote was
had among the employees of I Employers Sam Ursino. and- of T: 0.
Taylor and that the Petitioner was selected by a majority of the
employees in the appropriate units.
In-Case-No. 10=R-2416, the Employer Salvadore-Fazio claims that
he had no-eligible voters in his employ at the time of the election.
The record shows that Fazio has one boat operated by two of his sons,
aged 16 and 18, respectively. The father pays the sons no regular
wages, but furnishes them with pocket money. Neither of these two
sons voted in the election. Fazio, however, has a third son, Frankie,
who is the 'owner of a boat. Since April 1,946, Frankie has been serv-
ing with the Army in-the Pacific area. - ,Before his departure, Frankie
instructed his father to put Harry,Brown -in charge- of his boat.
.Brown has-been operating Frankie's boat since that time with the
assistance of a helper, Joe, whom Brown hired. Fazio pays Brown
and Joe for their work. Brown' and Joe turn over their catch to
Fazio - who , in turn sells the' fish. Fazio does not keep records to
distinguish between the fish caught in Frankie's boat and that cauglit
in- his own boat. Instead, he commingles the fish from both boats,
sells 'them, and deposits the `proceeds therefrom in his own baink
account, without any accounting to Frankie. We agree with Fazio's
contention that his two Sons' who operate his boat are not his ein-
ployees within the meaning of the Act.5 We do find, however, that
• Fazio controls the employment of Brown and, Joe and that both
these fishermen are Fazio's employees. • It thus appears, and we find,
that Fazio had two eligible voters in his employ at the tithe of the
election. ' - '
In Case No. 10-R-2424, involving the Lopes Shrimp Company-, the
record showsthat seven of the Employer's eight employees cast ballots
in the election, three of which were for the Petitioner, three, against
the Petitioner, and one ballot was challenged. The challenged ballot
was that of Michael Johnson and the reason for the challenge was that
his name did,not appear on th'e eligible voting list. All parties agreed
at the hearing that this omission "was inadvertent and that Johnson
.was, in fact, in eligible voter. The'parties further agreed to open
and count the ballot of Johnson at the heaiing. The record shows,
the ballot was for the Petitioner, thereby `giving the-Petitioner
!,Matter of - Steifel Construction 'Corp ., 65 N. L . R. B. 925 ; Matter of The Central Dis-
pensary and Emergency Hospital, 48 N. L . R. B. 437 ; enforced 145 F . ( 2d) 852 ; N. L. R. B.
V. Standard Lime and , Stone Company, 149 F. ( 2d) 435, enforcing 56 N. L . R. B.;522.
Section 2 ( 3) of the Act.
A. A. FAGEN, ET AL. -683
a majority of the votes cast by the employees of Lopes Shrimp
Company.
The results of the elections held -before the hearing among the
employees of the Employers show that the Petitioner has secured a
-majority :of =the --valid votes cast in each- case. We shall, therefore;
certify the Petitioner.as the collective- bargaining representative of
the employees in the appropriate units.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that the East Coast Fisherman's Association,
Inc., has been designated and selected by a majority of the employees
in the units described in Section IV, above, as their representative-
for the purposes of collective bargaining, and that, pursuant to Section
9 (a), of the Act, the aforesaid organization is the exclusive repre-
sentative of all such employees for the purposes of collective bar-
gaining with respect to rates of, pay, wages, ,hours of employment,
and other conditions of employment.
APPENDIX A
Name of employers
Approxi-
mate
matenu ber of
eligible
voters
umber of
votes cast
Number of
votes cast
for
petitioner
dumber of
votes cast
against
petitioner
Number of
challenged
ballots
A. A Fagen--------------- -------------- 10 - 8 - 6 2 0
A. J Costello , Jr__________________________ 7 7 4 0 3
T. 0 Taylor -------------- --------------- ---------- 2 2 0 0
Salvadore Fazio _________________________ ____________ 2 2 0 0
John Fazio________________________________ 6 5 5 0 0
Sam Ursino------------------------------- --_______- 2 2 0 0
Sam Jordan_______________________________ 4 4 4 0 0
'Frank Recupero and Charles DeShosha
dfb/a Quality Sea Food Co ______________ 13 10 10 0 0
Angelo Milrtello--------------------------- 5 5 5 0 0
Jack Lopes d/b/a Lopes Shrimp Co ________ 8 - 7 3 3 1
C TIingall _________________________ ______ 3 2 2 0 ,0
S. Damele, F Damele , and C. Damele- .
d/b/a St Augustine Fisheries 3 3 0 0
Felix Salvadore and John R . Salvadore
d/b/a S. Salvadore Sons_ _________________ 10 7- 6 0 - 1
N. Po l1---------------------------------- 5 3 3 0 0
I The business of all the Employers is located in St. Augustine, Florida.