The New York and Porto Rico Steamship Co.

In the Matter of THE NEW YORK AND PORTO RICO STEAMSHIP CO. AND SAN ANTONIO Co. and UNION DE EMPLEADOS DE MUELLES DE PUERTO Rico, LOCAL No. 74 J. L. W. U.-CIO-CGT) Case No. 224-R-1544.-Decided duly 17,1946 DECISION AND DIRECTION STATEMENT OF THE CASE On May 1, 1946, Local No. 74, Union de Empleados de Muelles de Puerto Rico J. L. W. U.-CIO-CGT), herein called the Union, filed with the Regional Director for the Twenty-fourth Region, a petition alleging that a question affecting commerce had arisen concerning the representation of employees of The New York and Porto Rico Steam- ship Co. and San Antonio Co., San Juan, Puerto Rico, herein called the Company, and requesting an investigation and certification of rep- resentatives, pursuant to Section 9 (c) of the National Labor Rela- tions Act. On May 6, 1946, the Company, the Union, and a represent- ative of the Board entered into a "Stipulation for Certification Upon Consent Election." Pursuant to the stipulation, an election by secret ballot was con- ducted on May 13, 1946, under the direction and supervision of the Regional Director, among all employees in the stipulated unit, to determine whether or not said employees desire to be represented by the Union. Upon the completion of the election, the Regional Directs: duly issued and served upon the parties a Tally of Ballots. The Tally indicates that there were approximately 26 eligible voters, and that 12 of these cast ballots for the Union, 11 cast ballots against the Union, and 3 ballots were challenged. On May 17, 1946, the Company filed with the Regional Director its objections to certain conduct alleged to have affected the results of the election. Thereafter, the Regional Director conducted an investi- gation and, on May 27, 1946, issued and duly served upon the parties his Consolidated Report on Objections to the Election and Challenged Ballots. In this report, the Regional Director recommended, inter alia, 69 N. L. R. B., No. 71. 563 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Company's objections to the conduct of the election be over- ruled. No exceptions to this recommendation were filed. On May 29, 1946, the Union filed exceptions to that part of the Re- gional Director's report which recommended that the Company's chal- lenge to the ballot of William Alvarez be sustained and that the Union's challenges to the ballots of Alfredo Marrero and Mario A. Soler be overruled. On the basis of the stipulation, the Tally of Ballots, the Company's Objections to the Conduct of the Election, the Regional Director's Consolidated Report on Objections to the Election and Challenged Ballots, the Union's exceptions, and the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The New York and Porto Rico Steamship Co. and San Antonio Co., San Juan, Puerto Rico, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees of the Company at its San Juan, Puerto Rico, main office who work in the claim, freight, accounting, traffic, or passenger departments, excluding production and maintenance em- ployees, officials, and 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 a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. The Company's objections to the conduct of the election do not raise material or substantial issues with respect to the election and they are hereby overruled. 4. As appears from the Tally of Ballots, the results of the election may be affected by the challenged ballots. Accordingly, we shall consider the challenges : William Alvarez: The Company challenged the ballot of William Alvarez, a storage clerk, on the ground that he is a production and maintenance employee and, therefore, should not be permitted to vote in the stipulated unit of main office employees. It appears, however, that Alvarez is employed in the same capacity as the storage clerk who was considered by the Board in a previous decision involving the Parties in the instant case 1 In that decision, the Board found that the storage clerk was an employee of the accounting department, working under the supervision of the company auditor, and excluded him from a unit of production and maintenance employees as a main office em- ' Matter of The New York and Porto Rico Steamship Company and San Antonio Com- pany, 58 N. L. It. B. 1301. THE NEW YORK AND PORTO RICO STEAMSHIP CO. 565 ployee. Notwithstanding the Board's decision, the Company and the Union, in their subsequent collective bargaining contracts covering production and maintenance employees, included the storage clerk in the bargaining unit. However, there does not appear to have been any change in the Company's operations or in the duties of this employee since the Board's previous decision. In view of these facts, we per- ceive no justification for altering our prior determination that the storage clerk is a main office employee. We shall, therefore, overrule the challenge of the Company and direct that the ballot of William Alvarez be opened and counted 2 Alfredo Marrero and Mario A. Soler: The ballots of Alfredo Mar- rero and Mario A. Soler were challenged by the Union on the ground that these individuals are "confidential" employees, and, therefore, are not eligible to vote. In its exceptions to the Regional Director's report, the Union asserts, in addition, that these employees should be excluded as officials and supervisors. The Regional Director in his report indicates that Marrero, an accounting clerk, is employed by the Company in its accounting de- partment to check ships' pay rolls and to aid in the maintenance of the Company's accounts. He is supervised in his work by the company auditor and has no authority to alter the employment status of any employee. With respect to Soler, the Regional Director reports that this employee works in the Company's claim department, where he is engaged in the investigation of merchandise claims. He is under the immediate supervision of the head claim agent and has no authority either to alter the employment status of any employee or effectively to recommend such action. While these employees may have access to confidential information concerning the Company's commercial operations, it does not appear that either of them has direct access to confidential information pertaining to labor relations or obtains any such information by reason of his position. Consequently, we find, contrary to the Union's position, that these individuals are not "con- fidential" employees. Furthermore, we are of the opinion that neither Marrero nor Soler exercises the authority of a supervisory employee, nor are their duties those normally performed by company officials. Accordingly, we shall overrule the challenges of the Union and direct that the ballots of Alfredo Marrero and Mario A. Soler be opened and counted. DIRECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Sections 9 and 10, of National 2 Matter of The Globe Oil and Refining Company, 63 N. L. R. B. 958. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with The New York and Porto Rico Steamship Co. and San Antonio Co., San Juan, Puerto Rico, the Regional Director for the Twenty-fourth Region shall, pursuant to the Rules and Regulations of the Board set forth above, within ten (10) days from the date of this Direction, open and count the ballots of William Alvarez, Alfredo Marrero, and Mario A. Soler, and thereafter prepare and cause to be served upon the parties in this proceeding a Supplemental Election Report, embodying therein his findings and his recommendations as to the results of the balloting.