Puerto Rico Steamship Association, etc.

PUERTO RICO STEAMSHIP ASSOCIATION, ETC 563 The Petitioner seeks to sever a unit of engineers and firemen from a hotelwide unit which has been bargained for by the Intervenor, Culinary and Beverage Workers Union, Local 529, AFL-CIO, for the past 25 years The Employer and the Intervenor oppose sever- ance on the ground 'enter alia, that the two employees who constitute the requested unit are general maintenance workers who do not pos- sess the training or skills of traditional powerhouse employees They inspect and maintain the hotel's automatic heating plant, perform minor repairs on electrical equipment, elevators, furniture, and plumbing, do cleaning and janitorial work, operate the elevators, deliver linens and other supplies, and assist in setting up banquet facilities In view of the variety of duties they perform, and the lack of any requirement of training or experience in operating boilers or powerplant equipment, we find that the requested unit does not con- stitute a powerhouse department, but is a general maintenance group which may not be severed from an existing unit 3 [The Board dismissed the petition ] 3 Mountain States Telephone & Telegraph. Company 110 NLRB 1076 Seville Sea Isle Hotel Corporataan Operating the Seville Hotel 125 NLRB 299, see also, Ftorsda Enter proses Inc of Georgia, d/b/a Cadillac Hotel, 125 NLRB 258 Puerto Rico Steamship Association and its member companies, Bull Insular Line, Inc, Waterman Steamship Corporation of P.R., Alcoa Steamship Co., Inc., and Lykes Lines Agency, Inc and Leopold Ramos Ducos, Miguel Angel Salas Negron, Juan A. Davila Pena, and Fernando Almeida Vidal and Union de Empleados de M_uelles de Puerto Rico, Local 1901, IBL-AFL-, CIO; Union de Empleados de Muelles de Ponce, Sub-Local 1901, IBL-AFI^-CIO, Union de Empleados de Muelles de Mayaguez, Sub-Local 1901, IBL-AFL-CIO, and F. Benitez Rexach, Inc., Pier 3, Inc., Insular Dock Company, Pyramid Dock Co, Inc., and San Antonio Company, Parties to the Contract Cases Nos 24-CA-1017, 24-CA-1018, 24-CA-1019, and 24-CA-10241 December 3, 1959 DECISION AND ORDER On May 1, 1959, Trial Examiner John C Fischer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- 125 NLRB No 70 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report attached hereto. Thereafter, the Respondents and the Union, Parties to the Contract, filed exceptions and supporting briefs.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations with the modifications and additions hereinafter indicated. In agreement with the Trial Examiner, we find that both the 1956 and 1958 contracts contained illegal preferential hiring clauses and that the Respondents accordingly violated Section 8(a) (1), (2), and (3) of the Act by executing and maintaining such contracts. However, we find, contrary to the Trial Examiner, that on a date material herein, namely, December 5, 1958, the Respondents effec- tively discontinued their 8(a) (3) conduct by entering into a stipula- tion with the Union to expunge the illegal clause from the then .current contract. Nevertheless their failure to communicate this stipulation to the employees resulted in continuing the Section .8.(a) (1) and (2) violations.' Because of the unabated coercive effect .of the clause upon the employees, we shall not cut off the Brown-Olds remedy as of December 5,3 but shall issue the customary reimburse- ment order recommended by the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) .of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents Puerto Rico Steam- ship Association and its member companies, Bull Insular Line, Inc., Waterman Steamship Corporation of P.R., Alcoa Steamship Co., Inc., and Lykes Lines Agency, Inc., their officers, agents, successors, .and assigns, shall : 1. Cease and desist from : (a) Maintaining in their collective-bargaining contract with the Union de Empleados de Muelles de Puerto Rico, Local 1901, IBL- AFL-CIO, or any extension, renewal, modification, or supplement thereof, any provision which requires that preference in employment be given to the members of said Union or any of its affiliated sublocals. 'As the record , exceptions, and briefs adequately present the issues and positions of the parties , the Respondents' request for oral argument is hereby denied. 2 Port Chester Electrical Products Corporation, 97 NLRB 354, 355 ; Nassau and Suffolk Contractors' A ssociationn, Inc., and its members, 118 NLRB 174. 3 In General Molds and Plastics Corporation , 122 NLRB 182, Brown -Olds was followed -to remedy violations of 8(a )(1) and ( 2) only. PUERTO RICO STEAMSHIP ASSOCIATION, ETC . 565 (b) Encouraging membership in the above-named labor organiza- tion, or any of its affiliated sublocals, or any other labor organization, by performing, maintaining, enforcing, or giving effect to any con- tract, agreement, understanding, or arrangement whereby preference in employment is given to members of such organizations, or in any other manner discriminating against employees or applicants for employment in regard to their hire or tenure of employment, except as authorized in Section 8(a) (3) of the Act. (c) Recognizing the above-named labor organization, or any of its affiliated sublocals, or any successor thereto, as the representative of any of their employees for the purpose of negotiating concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, unless and until such labor organization shall have demonstrated its exclusive majority repre- sentative status pursuant to a Board-conducted election among the employees of the Respondent Companies. (d) Performing, maintaining, or giving effect to any contract or agreement, modification, extension, supplement, or renewal thereof, with the above-named labor organization, or any successor thereto, unless and until such labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board- conducted election among their employees. (e) In any other manner, interfering with, restraining, or coercing employees or applicants for employment in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold all recognition from the Union de Empleados de Muelles de Puerto Rico, Local 1901, IBL-AFL-CIO, or any of its affiliated sublocals, or any successor thereto, as repre- sentative of any of their employees for the purpose of negotiating concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment unless and until such labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among their employees. (b) Reimburse, in the full amount, their present and former em- ployees for any initiation fees, dues, and other moneys collected from them under the September 1956 and October 1958 contracts. The liability for reimbursement shall include the period beginning 6 months prior to the filing and service of the second amended charges 535S28-60-vol. 125-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein and shall extend to all moneys thereafter collected and not heretofore refunded. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records and reports necessary to analyze and compute the amount of money they are to reimburse to their employees for initiation fees, dues, and other moneys unlawfully deducted from their wages. (d) Post at their respective offices on the Island of Puerto Rico, and at all docks and piers where they operate on said island, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty- fourth Region, shall, after being duly signed by the Respondents' representative's, be posted by each of them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondents to insure that these notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for the Twenty-fourth Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. MEMBERS RODGERS and FANNING took no part in the consideration of the above Decision and Order. + In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT maintain in our collective-bargaining contract with the Union de Empleados de Muelles de Puerto Rico, Local 1901, IBL-AFL-CIO, or any extension, renewal, modification, or supplement thereof, any provision which requires that pref- erence in employment be given to the members of said Union, or any of its affiliated sublocals. WE WILL NOT encourage membership in the above-named labor organization, or any of its affiliated sublocals, or any other labor organization, by performing, maintaining, enforcing, or giving effect to any contract, agreement, understanding, or arrangement PUERTO RICO STEAMSHIP ASSOCIATION, ETC. 567 whereby preference in employment is given to members of such organizations, or in any other manner discriminating against em- ployees or applicants for employment in regard to their hire or tenure of employment, except as authorized in Section 8(a) (3) of the Act. WE WILL NOT recognize the above-named labor organization, or any of its affiliated sublocals, or any successor thereto, as the representative of any of our employees for the purpose of nego- tiating concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board conducted election among our employees. WE WILL NOT perform, maintain, or give effect to any contract or agreement, modification, extension, supplement, or renewal thereof, with the above-named labor organization, or any suc- cessor thereto, unless and until such labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-conducted election among our employees. WE WILL NOT, in any other manner, interfere with, restrain, or coerce employees or applicants for employment in the exercise: of the rights guaranteed in Section 7 of the Act, except to the- extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act. WE WILL withhold and withdraw all recognition from the Union de Empleados de Muelles de Puerto Rico, Local 1901, IBL-AFL-CIO, or any of its affiliated sublocals, or any suc- cessor thereto, as representative of any of our employees for the purpose of negotiating concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until such labor organization shall have demonstrated its exclusive majority representative status to a Board-conducted election among our employees. WE WILL reimburse, in the full amount, our present and former employees for any initiation fees, dues, and other moneys collected from them under the September 1956 and the October 1958 con- tracts. The liability for reimbursement shall include the period beginning 6 months prior to the filing and service of the second amended charges herein and shall extend to all moneys thereafter collected and not heretofore refunded. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the extent that this right may be affected by an agreement conform- ing to the applicable provisions of Section 8(a) (3) of the National Labor Relations Act. PUERTO RICO STEAMSHIP ASSOCIATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) BULL INSULAR LINE, INC. Employer. Dated---------------- By------------------------------------- (Representative ) (Title) WATERMAN STEAMSHIP CORPORATION OF P.R., Employer. Dated---------------- BY------------------------------------- (Representative ) (Title) AI,COA STEAMSHIP CO., INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) LYRES LINES AGENCY, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard at San Juan, Puerto Rico, by the duly designated Trial Examiner on Match 3 through 5, 1959, pursuant to due notice, with all parties represented and participating in the hearing. The consolidated complaint, which was issued on November 28, 1958, by the General Counsel of the National Labor Relations Board and was based on charges duly filed and served, alleged that Respondents have since September 30, 1956, interfered with, restrained and coerced employees in the exercise of rights guaranteed by Section 8(a)(1) of the Act; that Respondents gave and are giving unlawful financial and other assistance and support to the Union, herein referred to as UDEM, Local 1901, and its sublocals, thereby violating Section 8(a) (1) and (2) and have and are discriminating against employees in regard to their hire, tenure, and other terms and conditions of employment to encourage membership in UDEM, Local 1901, and its sublocals, thereby violating Section 8(a)(1) and (3) of the Act. Respondent answered on December 12, 1958, denying that it had engaged in unfair labor practices as alleged.' 1 The original and first amended charges alleged individual discriminations in employ- ment by the Waterman Steamship Corporation against the four Charging Parties. These allegations were eliminated in the second amended charges filed on November 26, 1958, and general charges were filed against the Puerto Rico Steamship Association and all its members for executing and maintaining in effect an unlawful preferential hiring agreement with IIDEM, Local 1901. PUERTO RICO STEAMSHIP ASSOCIATION, ETC. 569 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE RESPONDENTS' BUSINESS The complaint alleges, the answer admits, and the evidence establishes that Respondents are engaged in commerce within the meaning of the Act. The com- bined annual revenue of the member companies of the Respondent Association, which is a nonprofit association of employers engaged in shipping business in Puerto Rico, existing in part for the purpose of bargaining collectively with labor organizations representing employees of member companies, received from their collective opera- tions in interstate and foreign commerce, was in excess of $10,000,000, and said companies furnished transportation and stevedoring services to various persons and firms engaged in interstate commerce which were valued in excess of $1,000,000. Respondents Puerto Rico Steamship Association, Bull Insular Line, Inc., Waterman Steamship Corporation of P. R., Alcoa Steamship Co., Inc., Lykes Lines Agency, Inc., each are, and at all times material herein have been engaged in commerce within the meaning of Section 2(7) of the Act. II. THE UNION AS A LABOR ORGANIZATION Union de Empleados de Muelles de Puerto Rico, Local 1901, IBL-AFL-CIO (herein referred to as UDEM, Local 1901), and its affiliates Union de Empleados de Muelles de Ponce, Sub-Local 1901, IBL-AFL-CIO; and Union de Empleados de Muelles de Mayaguez, Sub-Local 1901, IBL-AFL-CIO, hereinafter referred to as UDEM sublocals, are each labor organizations within the meaning of Section 2(5) of the Act. The Unions represent the employees of the Association's member com- panies under a collective-bargaining contract. III. THE UNFAIR LABOR PRACTICES A. Background Respondent Puerto Rico Steamship Association has during the past several years executed collective-bargaining contracts on behalf of its member companies with the UDEM, Local 1901, covering the cargo checkers and dock maintenance and repair employees employed by members of the Association at the ports of San Juan, Mayaguez, and Ponce. On September 30, 1956, it executed such a contract with the UDEM, Local 1901, for a period of 2 years to expire on September 30, 1958. On October 3, 1958, it executed a renewal contract with UDEM, Local 1901, for a period of 3 years to expire on September 30, 1961. In addition to representing its member companies, namely Bull Insular Line, Inc., Waterman Dock Company (now known as Waterman Steamship Corporation of P.R.), Alcoa Steamship Co., Inc., and Lykes Lines Agency, Inc., it also executed the above-named contracts on behalf of five other companies which are subsidiaries or affiliates of the Bull Insular Line, Inc., namely F. Benitez Rexach, Inc., Pier 3, Inc., Insular Dock Company, Pyramid Dock Co., Inc., and San Antonio Company. UDEM, Local 1901, on its part executed the above-named contracts on behalf of itself and its two sublocals at the ports of Mayaguez and Ponce, respectively. The parent local represents the employees covered by the contract who work at the port of San Juan. The two sublocals affiliated with it each represent the classification of employees covered by the contract who work for the member companies or the affiliates at the ports of Mayaguez and Ponce, respectively. B. The unlawful preferential hiring clauses The contract executed by the Association on September 30, 1956, contained the following clause: article II, subsection E, "the companies will give preference in employment to members of the Union, but will reserve the right to selection without discrimination for reasons of membership or nonmembership." The renewal con- tract, executed on October 3, 1958, contained the following clause: article II, subsection D, "the companies will give preference in employment to members of the Union when available and qualified, but will reserve the right of selection without discrimination for reasons of membership or nonmembership in the Union." The contract of September 30, 1956, was in effect when the original charges were filed in these proceedings. While the original charges were being investigated the Association executed the renewal contract on October 3, 1958. However, only the Waterman Steamship Corporation was mentioned in the original and first 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended charges and no mention was made of the unlawful contract clauses in said charges. The second amended charges filed on November 26, 1958, however, named the Association and all its members and directly attacked the unlawful hiring clauses. I find that in the period between May 26 and September 30, 1958, the Association and its member companies maintained in effect the illegal union-security clause contained in the contract of September 30, 1956 (article II, subsection E). I also find that the Association and its members made a new illegal union-security arrange- ment with the Union on October 3, 1958 (article II, subsection D), of the renewal contract and has, since that time, maintained said illegal arrangement with the Union. The Respondent Association submitted at the hearing an amendment to the contract of October 3, 1958, executed with UDEM, Local 1901, which purported to eliminate article II, subsection D, from that contract. However, I further find and conclude that the purported amendment is of no effect and that the illegal arrangement continues to exist, insofar as the employees covered by the contract are concerned, since it does not appear that notice of the amendment was in any manner communicated to said employees by either the companies or the Union. The General Counsel attempted to show that the companies were actually engaged in the practices of giving preference to the union members in the selection of employees. However, the evidence submitted by the General Counsel was inadequate to prove that the Respondent companies had selected union employees as against nonunion employees during the period material herein. Examination of representa- tives of both the companies and the Union, a§ adverse party witnesses, by the General Counsel failed to extract any admissions or other evidence that the unlawful contract clauses have been followed in practice. However, this failure of proof on the part of the General Counsel does not require a dismissal of the complaint since the mere continued existence of the unlawful preferential hiring clauses in the old and the new contract constitutes a violation of Section 8(a)(1), (2), and (3) of the Act. See New York State Employers Association, Inc., et al., 93 NLRB 127, enfd. 196 F. 2d 78 (C.A. 2); also, N.L.R.B. v. Gottfried Baking Co., Inc., et al., 210 F. 2d 772 (C.A. 2). Respondent's contention that since the General Counsel failed to show that the unlawful hiring clauses were in fact enforced or applied and there has been no vio- lation of the Act, is without merit. Where the contracting parties agreed not to enforce and in fact do not enforce an unlawful union-security clause, the Board has held that there is a violation of Section 8(a) (1) only on the part of the company, and a violation of Section 8(b) (1) (A) only on the part of the union. In such a situa- tion, the mere continued inclusion of the offending clause in the contract will not be held to be a violation of Section 8 (a) (3) on the part of the company, or of Section 8(b) (2) on the part of the union. If the parties, however, go further and inform the employees of their intention not to continue the unlawful clause in effect, no viola- tion at all will be found. In the instant case, however, no evidence was submitted by the Respondents' counsel indicating that there was either an agreement between the Respondents and the Union during the period material herein that the unlawful hiring provisions would not be enforced, or that the employees had been notified that notwithstanding the presence of the clause in the contract, they were not to consider it as having any force or effect. See Nassau and Suffolk Contractors Asso- ciation, Inc., and its members, 118 NLRB 174. Accordingly, I find that by continuing the unlawful hiring clause in the contract of September 30, 1956, until said contract expired on September 30, 1958, by in- cluding the unlawful clause in the renewal contract executed on October 3, 1958, and by continuing it in effect thereafter, the Respondent Association and all its members violated Section 8(a)(1), (2), and (3) of the Act. See N.L.R.B. v. Gott- fried Baking Co., supra. Upon the basis of the above findings of fact, and upon the entire record in thisti case, I make the following: CONCLUSIONS OF LAW 1. Respondent Association and its member companies, Bull Insular Line, Inc., Waterman Steamship Corporation of P.R., Alcoa Steamship Co., Inc., and Lykes Lines Agency, Inc., are, and at all times material herein were, employers engaged in commerce within the meaning of Section 2(7) of the Act. 2. Union de Empleados de Muelles de Puerto Rico, Local 1901, IBL-AFL-CIO, and its sublocals at the ports of Mayaguez and Ponce, are each labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining in effect and renewing an agreement with the above-named labor organizations, which gave preference in employment to members of said labor organizations, the Respondent Association and all its members named above LOCAL UNION NO. 789, INT'L HOD CARRIERS', ETC. 571 rendered unlawful assistance and support to said labor organizations and by said conduct they engaged in and are engaging in unfair labor practices within the mean- ing of Section 8(a) (2) of the Act. 4. By maintaining in effect and renewing an agreement with the above-named labor organizations, which gave preference in employment to members of said labor organizations, the Respondent Association and all its members named above discriminated and is discriminating in regard to the hire and tenure of employees, thereby encouraging membership in said labor organizations and thereby they engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By such conduct, thereby interfering with, restraining, and coercing their employees and applicants for employment in the exercise of rights guaranteed in Section 7 of the Act, Respondent Association and all its members named above have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(i) of the Act. 6. The above-described unfair labor practices tend to lead to labor disputes burden- ing commerce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local Union No. 789, International Hod Carriers', Building and Common Laborers' Union of America, AFL-CIO; Local No. 147, International Union of Operating Engineers, AFL-CIO; Local Union No. 28, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO; Local Union No. 388, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and H. E. Doyle and Jno. W. Russell, doing business as Doyle and Russell. Case No. 5-CC-82. December 4, 1959 DECISION AND ORDER On August 26, 1957, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel and Charging Party filed exceptions to the Intermediate Report and supporting briefs, Respondent Local 789 filed a memorandum in support of the Inter- mediate Report, the Charging Party filed a motion to reopen the record, and the General Counsel filed an opposition thereto. Sub- sequently, the Board having granted the Charging. Party's motion and remanded the proceeding for further hearing, the Trial Examiner, on March 18, 1959, issued his Supplemental Intermediate Report, re- newing his recommendation that the complaint be dismissed, as set forth in the copy of the Supplemental Intermediate Report attached hereto. Thereafter, the General Counsel and the Charging Party filed exceptions to the Supplemental Intermediate Report and sup- 125 NLRB No. 67.