Bull Insular Line, Inc.

In the Matter of BULL INSULAR LINE, INC., NEW YORK AND PORTO RICO STEAMSHIP CO., INC., WATERMAN DOCK CO., AND LYKES BROS. STEAMSHIP CO., INC., EMPLOYERS and UNION DE TRABAJADORES DE LA INDUSTRIA MARITIMA DE PUNTA SANTIAGO (CIO-CGT), PETITIONER Case No. 24-R-130.-Decided September 07, 1946 Mr. Vincent M. Rotolo, for the Board. Mr. Charles R. Hartzell, by Jose L. Novas, of San Juan, P. R., for Bull Insular Line, Inc., New York and Porto Rico Steamship Co., and San Juan Mercantile Corporation. Mr. E. Larroca, of San Juan, P. R., for Lykes Bros. Steamship Co. Messrs. J. A. Cintron Rivera, Salustiano Maldonado , and R. Car- raras Valle , of Santurce, P. R., for the Petitioner. Messrs. Hipalito Mareano, E. G. Moreno, Nicolas Colon, Jose Pre- cups, and Victor Carrillo , of San Juan, P. R., for the I. L. A. Mr. Julius Topol, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at San Juan, Puerto Rico, on January 28, 1946, before Arthur Leff, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' All oral argument requests made in this case are hereby denied inasmuch as the record, in our opinion , adequately presents the issues and positions of the parties. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF TILE EMPLOYERS Bull Insular Line, Inc., a New York corporation; New York and Porto Rico Steamship Co., a New York corporation; Waterman Dock i At the hearing, the hearing officer granted a motion of the Waterman Steamship Cor- poration to delete its name from the petition on the ground that it was erroneously listed as an Employer of the employees in issue. A similar motion was made on behalf of the McCormick Steamship Co , Inc, and the San Juan Mercantile Corporation on the ground that neither has ever engaged in shipping at the port involved The hearing officer referred this matter to the Board for determination. The motion is hereby granted and the petition is so amended. 71 N. L. R. B., No. 11. 38 BULL INSULAR LINE, INC. 39 Co., a Puerto Rico corporation ; and Lykes Bros. Steamship Co., a Louisiana corporation ; each had, before the war, operated a general steamship business between Puerto Rico and various ports of the United States, transporting passengers and freight. At the time of the hearing herein, the Employers were acting as berth subagents of the United States War Shipping Administration in the United States and Puerto Rico, in which capacity they were engaged in the loading and discharging of vessels and in the receipt and delivery of cargo. The Employers admit and we find that each is engaged in commerce within the meaning of the National Labor Relations Act. IT. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with Union de Empleados de Muelles de Puerto Rico ( CIO-CGT ), claiming to repre- sent employees of the Employers. International Longshoremen's Association, herein called the I. L. A., is a labor organization affiliated with Federation Libre de los Traba- jadores de Puerto Rico, State Branch of the American Federation of Labor, claiming to represent employees of the Employers. III. THE QUESTION CONCERNING REPRESENTATION The Employers refuse to recognize the Petitioner as the exclusive bargaining representative of certain employees of the Employers at the port of Punta Santiago, Humacao,' Puerto Rico, until the Petitioner has been certified by the Board in an appropriate unit. The Employers and the I. L. A., relying on the same bargaining history which the Board considered in Matter of Bull Insular Line, Inc., et al.,3 reassert their position in that case, viz, that an existing "In- sular-wide" contract with the I. L. A. for the years 1945 and 1946 affecting these employees is a bar to this proceeding . However, as Indicated in that case, the I. L. A. contract is one of two separate contracts of similar duration, one with the I. L. A. and the other with Union de Trabajadores de Muelles y Ramas Anexas de Puerto Rico, herein called the U. T. Al., which when taken together include all the ports on the Island, but which, when viewed separately, embrace only those ports at which the I. L. A. or the U. T. M., as the case may be, has affiliated locals. We there rejected the Employers' and the I. L. A.'s contentions and held, as we do now, that "since it is obvious that the same employee unit cannot be represented exclusively by each of two separate labor organizations at the same time, clearly the con- Herein called Humacao s 63 N. L R B. 154. The case cited involved stevedores at the port of Guanica , Puerto Itico , and is herein called the Guanica case. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tracts alleged to be a bar can no more be effective for that purpose than a membership-only contract." 4 Accordingly, we shall proceed to a present determination of representatives of the employees in the unit hereinafter found to be appropriate. We find that a question affecting commerce has arisen concerning the representation of employees of the Employers, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. TI-IE APPROPRIATE UNIT The Petitioner seeks a unit of all stevedores, water boys, and bag sewers, in the port of Humacao, excluding executives, officers, and supervisors. There is no dispute as to the classification of employees sought to be included in the unit. The Employers and the I. L. A. contend, however, that the proposed unit, limited to a single port, is inappropriate, and that •the appropriate unit is an Island-wide unit consisting of all stevedores employed by all the shipping companies in all ports on the Island. We had occasion, in the Guanica case, to review in considerable de- tail the nniltiple-employer bargaining on the Island with respect to such employees. In the face of a similar contention by the Employers and the I. L. A. made therein, we said that : It is obvious, therefore, that since 1938 the collective bargain- ing of the Companies with the UTM and the ILA with respect to the stevedores in Puerto Rico has not been conducted on a true Island-wide basis, but rather on a shifting multi-port basis of considerably narrower scope. Moreover, these variable divi- sions in the ranks of the Island-wide group of stevedores are re- flected in the history of the employer group personified by the Steamship Committee. Thus, in 1939, one of the Companies and, in 1941, two of the Companies, negotiated and executed separate contracts with labor organizations without the assistance of the Steamship Committee. In view of the foregoing, and upon the entire record in the case, we are of the opinion that the history of collective bargain- ing among the stevedores in Puerto Rico does not establish the appropriateness of an Island-wide unit. To the contrary,` the fact that stevedore groups at the several Island ports since 1937 have shifted affiliation from one union to another, particularly *A schism occurred in 1944 at Humacao in the ranks of the I L. A.'s Local 1584 as then constituted, which resulted ultimately in the formation of the Petitioner by one faction, and the reconstitution of the I. L. A. local under the same name by the other faction. However, in view of our holding above that the I. L A contract is not a bar, we find it unnecessary to determine whether the reconstituted Local 1584 was the legal successor to the first group and competent to act as signatory to the above-mentioned contract and to bind the employees in issue herein. BULL INSULAR LINE, INC. 41 between the UTINI and the ILA, is indicative of the appropriate- ness at this time of units confined to separate ports. We there concluded that the stevedores, water boys, and bag sewers employed by the Employers at the port of Guanica constituted a unit appropriate for collective bargaining. The record in the instant case incorporates by reference the record in the Guanica case with respect to the past bargaining history for all such employees on the Island. The additional bargaining history in the instant record, which relates in the main to Humacao, reemphasizes our previous finding as to the nature of the bargaining pattern on the Island' and establishes that the same bargaining pattern still exists. It also reflects that, as in Guanica, those involved herein depend for most of their employment as stevedores on the shipping of sugar during the grinding season, perform identical work, are subject to a separate common supervision, live in the vicinity of the port, and possess substantially common interests separate and apart from those of the stevedores in other ports. Although, unlike the situation at Guanica, the stevedores at Humacao work at other ports and on occa- sion stevedores from other ports find temporary employment at Humacao, it is, nevertheless, clear that the employees comprising the unit at Humacao remain at all times a clearly identifiable group. In view of the foregoing, we are of the opinion that the bargaining pattern among the stevedores in Puerto Rico fails to establish the appropriateness of an Island-wide unit at this time; but, instead, indicates the present appropriateness of units limited to individual ports. Accordingly, we find that all stevedores, water boys, and bag sewers employed by the Employers at the port of Punta Santiago, Humacao, Puerto Rico, excluding executives, officers, and supervisors, and all or any other 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. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot. "The instant record implements further our finding in the Guanica case that there has been a shifting pattern of multi -port bargaining on the Island. It reveals that, during the prewar years, the stevedores at Humacao effected the following changes in affiliation 1938-from the U. T M. to the I. L A. 1939-from the I. L A. to the U. T M. 1941-from the U. T. M. to the I. L A. These changes obviously caused an alteration in the combination of ports bargained for by both the I L. A and the U. T. M. 42 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD The Petitioner contends that employees who worked during the last two pay-roll periods before the closing in February 1942 of the port of I-Jumacao because of the war, as well as employees who were employed during two pay-roll periods immediately subsequent to the opening of the port in April 1945, should be eligible to vote for a bargaining representative. The I. L. A. contends, on the other hand, that a pay- roll period following the opening of the port in April 1945 should be used to determine eligibility to vote. As indicated above, the port of Humacao remained closed from February 1942 to April 1945. Pre- p^iratory to the reopening of the port, the Employers, disregarding the factional split in affiliation which occurred among the stevedores at Humacao in December 1944, included the employees in Humacao in its closed-shop contract with the I. L. A. for the years 1945 and 1946. Because of the closed-shop provision in that contract, a direction to use pay-roll periods postdating the opening of the port in 1945, exclusively, would have the effect of excluding from voting those employees who, after the schism in the I. L. A. Local 1584 at Humacao in 1944, refused to become members of Local 1584 as reconstituted , and thereby preju- diced their chances of employment. On the other hand, the exclusive use of pay-roll periods antedating the signing of the contract would, because of the long period the port was closed, involve sole reliance on eligibility lists that are now 4 years old. Under all the circumstances, we shall direct the combined use of (1) the two pay-roll periods imme- diately preceding the closing of the port in February 1942, and (2) the two pay-roll periods immediately preceding the Direction of Elec- tion herein, for purposes of determining eligibility to vote. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Bull Insular Line, Inc., New York and Porto Rico Steamship Co., Inc., Waterman Dock Co., and Lykes Bros. Steamship Co., Inc., an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Agent for the National Labor Relations Board for the Twenty-fourth Region, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the em- ployees in the unit found appropriate in Section IV, above, who were employed either during (1) any one of the last two pay-roll periods immediately preceding the closing of the port of Humacao in Febru- ary 1942, or (2) any one of the two pay-roll periods immediately pre- ceding the date of this Direction, including employees who did not work during any one of these four pay-roll periods because they were ill or on vacation or temporarily laid off, and including employees in BULL INSULAR LINE, INC. 43 the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, to determine whether or not they desire to be represented by Union de Trabaj adores de la Industria Maritima de Punta Santiago (CIO-CGT), or by International Long- shoremen's Association, for the purposes of collective bargaining, or by neither. MR. JAMES J. Rj;vNor,ns, JR., took no part in the consideration of the above Decision and Direction of Election. CIIAIRM AN PAUL M. HERZOG, concurring specially : Inasmuch as the Board, in its 1945 decision involving stevedores at the port of Guamca,e evaluated the history of bargaining in Puerto Rico and found that collective bargaining for such employees had not proceeded on a true Island-wide basis, I feel constrained to follow that decision, although I might not reach the sauce result if this were a matter of first impression. It follows that an election should be directed at Humacao, as requested by the petitioner herein. ° _ifattei of Bull Insnlai Line, Inc , et at, 63 N L R B 154, in which I did not participate