General Foods Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1954

110 N.L.R.B. 1088 (N.L.R.B. 1954)

1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the employees of the Ishpeming district, who have had sepa-
rate representation and are sought as a separate unit, I would treat
them no differently than the Iron River employees, because it is my
belief that when there is a bargaining representative prepared to rep-
resent the optimum unit, prior bargaining history and geographical
considerations serve only to becloud the issue of the appropriate unit
for a utility. See The Laclede Gas Light Company, 77 NLRB 354;
see also Southern Bell Telephone Company, 108 NLRB 1106.
GENERAL FOODS CORPORATION, BIRDS EYE DIVISION and MAINE FISH-
ERMEN'S ASSOCIATION OF ROCKLAND, MAINE, PETITIONER. Case No.
1-RC-367. November 30,1954
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 S. Fuchs,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
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 Petitioner and the Intervenor, Atlantic Fishermen's Union,
Seafarers' International Union of North America, A. F. L., are labor
organizations 2 claiming to represent certain employees 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) and (7) of the Act.
4. The appropriate unit :
The Petitioner originally sought a unit of fishermen employed on
the Employer's nine fishing boats, excluding captains, mates, and
engineers. At the hearing, the petition was amended to include the
second engineer and to exclude lumpers. The Intervenor urges a
'The Intervenor 's request for oral argument is denied because the record and the
briefs, in our opinion, adequately present the issues and the positions of the parties.
2 The Petitioner urges that the Intervenor is not a labor organization within the
meaning of the Act because it has bargained and is bargaining for supervisory personnel,
such as captains and mates We find no merit in this contention as Section 2 (5) of the
Act defines a labor organization as a group which exists for the purpose of dealing with
employers concerning grievances , wages, conditions of work, etc . The Intervenor urges
that the Petitioner is not a labor organization within the meaning of the Act on the
ground that it is primarily a strike-breaking group and is employer dominated. We find
that the hearing officer correctly ruled in excluding evidence pertaining to this conten-
tion of the Intervenor on the ground that these allegations raised issued involving unfair
labor practice charges filed by the Intervenor ( in Case No. 1-CA-1742 ), and may not be
considered in a representation proceeding . Tames Square Stores Corporation, 79 NLRB
361 ; Everett Plywood & Door Corporation, 105 NLRB 17, 18.
110 NLRB No. 178.
GENERAL FOODS CORPORATION 1089
unit of fishermen including mates, engineers, and lumpers. However,
both parties are willing to accept any unit found appropriate by the
Board. The Employer agrees generally with the Petitioner.
Bargaining History
The Intervenor, an affiliate of Seafarers' International Union of
North America, A. F. L., has bargained for the employees, herein
involved since 1937. The last contract was signed in May 1946 and
included fishermen, mates, engineers, and lumpers. The contract was
not renewed in 1947, but the Employer and the Intervenor carried
on negotiations and arrived at agreements based on that contract
until 1953. In that year there occurred a strike, following which
the parties executed a contract which expired on April 17, 1954.
Thereafter, upon the parties failing to agree on a new contract, a
strike was called in May 1954. The following month, upon the organ-
ization of the Petitioner, the Intervenor filed unfair labor practice
charges alleging that the Petitioner -was employer inspired and organ-
ized for the sole purpose of breaking the strike.' On July 1, 1954,
the Petitioner filed the instant petition.
As indicated above, the Petitioner originally called for a unit of
fishermen excluding captains, mates,4 and engineers. At the hearing,
the Petitioner conceded that the second engineer was not a supervisor
but continued to urge that captains, the mate, and the chief engineer
should be excluded as supervisors and also that lumpers should be
excluded on the ground that they have no community of interest with
fishermen. The Employer takes the position that lumpers should be
excluded on the ground that they are not employees but independent
contractors . The Intervenor, although apparently abandoning its
position that captains 5 should be included, takes issue with respect
to the requested exclusion of the mate, the chief engineer, and the
lumpers.
The mate: The boats herein involved normally carry a crew of 10
men, including the mate and the chief engineer. The mate, who is
licensed by the U. S. Steamship Inspection Service, regularly substi-
tutes for the captain, which substitution, according to the evidence,
accounts for about 50 percent of the mate's time. The captain stands
watch 6 hours and is off duty for 6 hours. During the latter period,
the mate performs all the captain's duties and functions. While he
is on watch, the mate orders all necessary repairs and replacements
and calls upon the captain only in cases of emergency. Although the
8 Case No. 1-CA-1742, supra.
4It appears there Is only one individual presently employed in the classification of
mate.
5 The supervisory status of the captain is amply demonstrated in the record.
338207-55-vol . 110-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mate has no authority to hire, discharge, or discipline, he may recom-
mend such action to the captain. When the captain is on duty, the
mate works with the men, during which time the mate is responsible
for seeing that certain work is properly done.
The Intervenor, contending that the mate is nonsupervisory, urges
that the mate is no better qualified than any other member of the crew
except for the fact he has sufficient knowledge of navigation to assume
control of the boat, if the captain becomes disabled. The Intervenor
also maintains there is no need for the mate to make recommendations
as all work is performed in the full view of the captain who has every
opportunity to judge for himself the work of the crewmen.r Notwith-
standing the foregoing limitations on the mate's powers of effective
recommendations, we find, in view of the mate's responsibility for the
direction of the crew and his frequent substitution for the captain at
regular intervals, that the mate is a supervisor within the meaning
of the Act; accordingly, we shall exclude him from the unit herein-
after found appropriate.'
The chief engineer: This engineer is licensed, and he is in charge
of the engine room. He has working with him a second engineer,
whom he instructs and who is responsible and reports to the chief
engineer. The chief engineer may effectively recommend the promo-
tion and discharge of the second engineer to the Employer's marine
superintendent. The Intervenor contends that as the second engineer
keeps watch at certain periods and substitutes for the chief engineer,
both men should be in the same category. We find no merit in this
analogy. It is clear from the record that the second engineer performs
no supervisory duties when substituting for the chief engineer as there
are no other engineering employees to supervise. We find that the
chief engineer is a supervisor and shall exclude him from the unit.
Luinpers: As noted above, the Petitioner supported by the Em-
ployer contends that lumpers should be excluded from the unit. The
Intervenor would include the lumpers. These men, some eight in
number, are hired by the Employer for the sole purpose of unloading
fish from the hold of the ship and placing them into baskets, which
are then hoisted into the plant for processing. Although lumpers are
not precluded from working for other employers, the evidence shows
that in recent months they have worked primarily for the Employer.
As regards hiring, the practice is for the Employer to notify one
of the group of lumpers when a ship is expected to dock and for that
person to notify the others to come to work. The lumpers are paid
e The Intervenor's request to reopen the hearing for the purpose of adducing evidence by
a certain captain concerning the duties of mates and engineers is denied on the ground
that ample opportunity to litigate the issue was given at the hearing and no adequate
reason has been shown that the evidence could not have been made available at the
hearing. See Westinghouse Electric Corporation . 108 NLRB 556.
7 See Hutchinson ck Co., et als., 101 NLRB 90, 94.
SAN ANGELO STANDARD, INC. 1091
by the Employer at the rate of $1.10 per thousand pounds of fish
unloaded. Supervision of the lumpers is conducted by the foreman
of the Employer's processing plant. The Employer pays social-
security and withholding taxes, and injuries are reported to the plant
foreman. The lumpers have been members of the Intervenor for
many years and were specifically included in the 1946 contract. Since
then, they have been bargained for in negotiations between the Em-
ployer and the Intervenor, and grievances have been processed by the
Intervenor on their behalf.
In view of the foregoing, we do not agree with the Employer that
lumpers are independent contractors, as it is clear they are hired by
and work under the direction and control of the Employer.8 The
fact that they are paid on a different basis is not controlling s
Although it appears that the lumpers do not work directly with the
fishermen, the status of lumpers as shore employees is not so far
removed from that of the boat employees as to preclude being included
in the same unit.Y° Furthermore, to exclude lumpers now would mean
denying them any representation, as they have been excluded from
the units of plant employees and of coast workers, respectively.
We find, in view of the above evidence indicating control by the
Employer, that the lumpers are regular part-time employees of the
Employer, rather than independent contractors. We further find,
particularly because of the history of collective bargaining, that they
are appropriately a part of the fishermen's unit.
We find that all fishermen employed by the Employer on its fishing
boats working out of Rockland, Maine, including the second engineer
and lumpers, but excluding the captain, the mate, the chief engineer,
guards, and all supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
8 Plainfield Courier-News Co., 95 NLRB 532, 534-7.
9 Plainfield Courier-News Co ., supra.
so The Board has held that boat and shore employees may appropriately be part of
a single appropriate unit. O. F. Shearer & Sons, 93 NLRB 1228; Hatfield Campbell
Creek Coal Company, 93 NLRB 999.
SAN ANGELO STANDARD, INC. and INTERNATIONAL STEREO=FRS &
ELECTROTYPERS UNION OF NORTH AMERICA, AFL. Case No.
l6-CA-674. December 2,1951
Decision and Order
On April 13, 1954, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
110 NLRB No.181.