Olms interpretative Manual

EMPLOYEE

030.501LMRDA,SECTION3(f)

"EMPLOYEE" means any individual employed by an employer, and includes any individualwhose work has ceased as a consequence of, or in connection with, any current labor dispute orbecause of any unfair labor practice or because of exclusion or expulsion from a labororganizationin anymannerorforanyreason inconsistent with therequirements ofthis Act.

030.502See29 CFR401.6.

030.505PORTPILOTS ASSOCIATION

An association of port pilots, established by the State legislature and chartered by aninternationallabororganization,isnotalabororganizationforpurposesofthe LMRDAundertheconditionsindicated below.

None of the member companies of the steamship association, the putative employer, has anycontrol regarding the selection, remuneration, or supervision of the pilots, or any controlwhatsoeveroverthepilots. Thedutiesand responsibilitiesofthepilots aredefinedintheState

statutewhichregulatesgrievances,labordisputes,wages,ratesofpay,hours,andotherconditionsof employment. Any disciplinary action against the pilots must be taken in accordance withstatutory procedure which provides that the ultimate action must be taken by the State Governor.Neither a withholding tax nor social security tax is paid by the steamship association or itsmember companies on the pilots. The pilots are considered independent businessmen underInternal Revenue laws and pay their own estimated income and self-employment taxes. Thestatute establishing the pilots' association allows it to make its own membership rules, subject toregulations of the United States Coast Guard, applicable State statutes, and the Board of PortCommissioners. Because of the exclusive right awarded to the pilots by the statute to pilot vesselsbetween two specific points, the U.S. Supreme Court has deemed the pilots "state officers" whoseworkis controlled bytheState.

There is no evidence that the pilots' association exists for the purpose, in whole or in part, "ofdealingwithemployersconcerninggrievances,"etc.Sincethestatutesothoroughlyregulatestheduties and responsibilities of the pilots, there is little or no contact between the pilots' associationand the shippers, who are under a statutory duty to pay the fees which are established in thestatute.

The above conclusion applies so long as the pilots' association does not negotiate agreementswith shippers calling for services outside the pilots' statutory duties. If the pilots' association doesso negotiate, which is permitted under amendments to the statute, the question of whether thepilots' association is a labor organization, for purposes of the LMRDA, would depend uponwhether the pilots could be considered "employees," rather than "independent contractors," whenengagedintheperformanceofspecialservices pursuantto suchagreementswith shippers.

Significant to whether an individual is an independent contractor is the degree of controlexercised by the person hiring the contractors, i.e. whether he has the right to control the workwhileitisinprogressasdistinguishedfromdeterminingtheendproduct,whetherthe contractorfurnishes materials or equipment, and whether the contractor performs a specified service for aspecifiedfee.

(TechnicalRevisions:Dec.2016)

030.510RETIREESNOTEMPLOYEES

A local all of whose members are retirees and which continues in existence for the sole purposeof receiving a pension from the union is not a labor organization within the meaning of the Actsince these members are not employees within the meaning of section 3(f) and the group does notexistforthepurpose, in wholeorinpart, ofdealingwith employers.

*030.520EMPLOYEESWHOMUNIONDOESNOTREPRESENT

AunionofFederal,State,ormunicipalemployeeswhichisnotalabororganizationasdefinedin the Act will not lose its exempt status if its membership includes employees of nonexemptemployers, provided that the union does not represent these members in collective bargaining,grievances, etc. For example, if retired members of a government employees' union retain theirmembership for welfare, pension, and social reasons while taking employment with employerswho are not exempt from the Act, the union will not become subject to the Act since it does notrepresenttheretired employeesin theirnew employment relationship.

Similarly, a union of public employees which admits employees of a private, charitablecorporation,suchas ahospital, forthesolepurposeofenablingthemto participatein insurance
and other benefit programs, will retain its exempt status because it does not exist for the purposeofdealingwith (private)“employers.”

030.530:LMRAEXCEPTIONSTOEMPLOYEESTATUS

The Taft-Hartley Act’s definition of “employee” has exceptions that the LMRDA’s definition ofemployee does not have. “The term ‘employee’. . . shall not include any individual employed asan agricultural laborer, or in the domestic service of any family or person at his home, or anyindividual employed by his parent or spouse, or any individual having the status of anindependent contractor, or any individual employed as a supervisor, or any individual employedby an employer subject to the Railway Labor Act, as amended from time to time, or by any otherperson who is not an employer as herein defined.” 29 U.S.C. § 152(3). See Nat’l Marine Eng’rsBeneficialAss’n v.NLRB, 274F.2d 167, 173 n.3(2d Cir. 1960).

(Jan. 2021)

DEFINITIONSRELATINGTOJURISDICTION: