TWENTY-SIXTH ANNUAL REPORT - National Labor Relations Board

Representation Cases 63
assigned him to subjects which were to be photogiaphed, it did not
control the manner or means by which he was to perform his work
This photographer functioned substantially, and received the same
pay, as other photographers who were adnruttedly "free lancers"
In another case, "bosses" engaged by seafood processing companies
to do drag-boat fishing m company-owned and -equipped boats were
found to be independent contractors, and their fishei men clews to be
their employees rather than the employees of the companies on the
basis of oral agreements or at rangements between the "bosses" and the
companies which were bilateral in natui e, i e, an wed at by negotiation
23
(3) Supervisors
The supervisory status of an individual under the act depends on
whether he possesses authority to act in the interest of his employer
in the matters and the mannei specified in section 2(11), m Inch defines
the term "supervisor " 24 An employee mill be found to have
supervisory status if he has any of the authorities enumel ated in
section 2(11) 25
The fact that a rank-and-file employee exercises supervisoiy authority
irregulaily and sporadically is not alone sufficient to constitute
him a supervisor 26 Conversely, the meie fact that a supeivisor
fails to exercise his supeivisory authoi ity does not change his employment
status nom that of a supet %isor to that of a iank-and-file
employee He still has the powei egaidless of its nonexeicise 27
g Employees Excluded From Unit by Board Policy
It is the Board's policy to exclude from bargaining units employees
mho act in a confidential capacity to officials who immulate, deteimine,
and effectuate the employer's labor ielat ions pubcres, 25 as well
23 Prank Alsoto Fish Co and Boat Seawol thy, 129 NLRB 27 The Board found that the
bosses herr. °pm ate under conditions more akin to those in AlasLa Salmon Indust,y, Inc
110 NLRB 900 (1954), than in Southm n Shellfish (Jo, 95 NLRB 957 (1951)
" Sec 2(11) reads "The term 'supervisor' means any individual haiing authoriti, in
the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them, or to gdyust
theii grim ances, or effectixely to recommend such action, if in connection with the foie
going the exercise of such authority is not of a merely routine m clerical nature, but
requires the use of independent Judgment
See Twentx fifth Annual Report (1960), p 45
AI V I P Radio, Inc , 128 NLRB 113
27 Leonard Ntedenster , Co 130 NLRB 113
23 See, e g, Twenty third Annual Report (1058), pp 41-42, and Laundry, Dry Cleaning
LO Dye House WorLers' Intl &neon Local 26,129 NLRB 1446, which involved a local union
as an employer, and where an employee ho nes a membei of the employer's executive
committee which formulated labor relations policies was excluded from the unit as a confidential
employee Compare with Ceiling Bieunng (Jo, 131 NLRB No 64, where a personnel
assistant was held not a confidential employee because his status and duties had
not changed since he first assumed the duties of personnel clerk which were all of a
clerical nature, and at no time did he negotiate concerning labor relations policies or rep