Int'l Longshoremen's Association, Local 1575

382 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD and that we request the Company to offer Havill reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed by him. LOCAL UNION No. 38 UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify Phillip Havill, in writing, if presently serving in the Armed Forces of the United States that we have no objection to his employment on the ground that he is not a member of our labor organization, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any questions concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335. International Longshoremen 's Association, Local 1575, District Council of the Ports of Puerto Rico, ILA, AFL-CIO and Sea- Land Service, Inc. Cases 24-CP-18 and 244-CB-541. June 15, 1966 DECISION AND ORDER On November 26, 1965, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions. The record shows, as the Trial Examiner found, that when the four classifications in question were included in Office Employees International Union's contract on January 25, 1963, the Respondent Union voiced no objection. Indeed, it signed a contract with the Company on March 22, 1963, 2 months later, without contending that those employees should be included in the contract unit or asserting that its certification covered them. Not until October 1964, when 159 NLRB No. 35. INT'L LONGSHOREMEN'S ASSOCIATION, LOCAL 1575 383 Respondent was negotiating for a second contract, did it seek to add those classifications. These facts show not only 'that OEIU's con- tract, which includes the disputed categories, is lawful on its face, so that no question concerning representation could appropriately be raised under Section 9 (c) - of the Act, but make plain that the Respondent had, at the very least, relinquished any claim to those employees. Even assuming, therefore, that the April 27, 1962, cer- tification could be said to have covered them, that would not make unlawful the subsequent contract with OEIU. Furthermore, the elements of a Section 8(b) (7) (A) violation having been prima facie established, the Trial Examiner correctly concluded that proving a vital certification covering these employees was a matter of defense, and that Respondent Union failed to meet its burden of proving that defense. In any event, contrary to our dissenting colleagues, we are of the opinion that the record in this case contains sufficient evidence, prima facie, to warrant the conclusion that Respondent's certificate does not cover the disputed employees. The record indi- cates that the Employer's attempt to settle this dispute by means of a petition for clarification was rejected by Respondent in favor of a strike to force a decision in its favor. [The Board adopted the Trial Examiner's Recommended Order.] MEMBERS BROWN AND JENKINS, dissenting : Briefly, the facts show that the Office Employees International Union was certified on April 27, 1962, for Sea-Land' s office employ- ees, and that on July 23, 1962, ILA, the Respondent Union, was cer- tified for a group of Sea-Land's employees, including, inter alia, plant clericals . Sometime in August 1962, Sea-Land established' new job titles-namely, OS & D clerks, junior dispatch clerks, junior pay- roll clerks, and inbound clerks. The job functions performed by the four new classifications were previously accomplished by a general clerk. On January 25, 1963, OEIU and Sea-Land negotiated a collective-bargaining agreement for the office employees' unit and included the new job titles. On March 22, 1963, the Respondent and Sea-Land executed their first contract. In October 1964, during negotiations leading to their second contract, the Respondent de- manded the inclusion of the job titles in its contract, asserting that its certificate covered such employees. Sea-Land refused, arguing that the employees were already covered by OEIU's contract. The question remained unresolved and Respondent struck and picketed Sea-Land on May 17, 1965. The strike ended on May 20, 1965. The complaint alleges that by such strikes and picketing Respondent has violated Section 8(b) (7) (A) and (3 ) of the Act. The Trial 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner concluded that it was the Respondent's burden to establish that its certificate covered the disputed employees, and that such burden had not been carried. The record, in our judgment, does not contain adequate evidence .with respect to a crucial issue in this case, i.e., whether or not the Respondent's certificate covers the disputed employees. Certain comments made by the Trial Examiner during the hearing would appear to have foreclosed development of such evidence. Thus, dur- ing the course of the hearing he stated : I do not see that it is my job to decide a unit question in this case .... I do not see within the scope of the complaint that I can decide whether or not the Board certification covers a group of employees .... In our view, disposing of the case on the technical basis of the burden of proof, as the Trial Examiner has done, is inappropriate for resolving the underlying question involved, namely, the certifi- cation coverage of the disputed classifications of employees, and thus does not adequately consider the nature of Respondent's defense. An effective procedure for resolving that problem would have been via a unit clarification petition. Indeed, the Employer had filed such a petition, but the Regional Director permitted the petition to be with- drawn. Considering Respondent's contention in the present posture of the case, we are of the opinion that a decision on the merits should await development of a complete record on the disputed coverage of Respondent's certification. To this end we would remand the pro- ceeding for further hearing and afford Respondent, as well as Sea- Land and OEIU, an opportunity to adduce relevant evidence on such matter so that we may determine the basic issues presented by the complaint. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on May 18, 1965, by Sea-Land Service, Inc. (herein called Sea-Land or the Company), the General Counsel issued a complaint on June 7, 1965, which as amended on June 11 , 1965, alleges that International Longshore- men's Association , Local 1575, District Council of the Ports of Puerto Rico, ILA, AFL-CIO (herein called ILA or the Respondent), engaged in unfair labor prac- tices within the meaning of Section 8(b)(7)(A) and (3 ) affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent filed an answer denying the commission of unfair labor practices . A hearing was held before Trial Examiner Samuel Ross in Santurce , Puerto Rico, on July 12 , 13, and -14, 1965. Upon the entire record in the case and from my observation of the witnesses and their demeanor, and after due consideration of the briefs filed on behalf of the General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. COMMERCE Sea-Land is a Delaware corporation which is engaged in the business of trans- porting cargo by ship between the States of the United States and the Common- INT'L LONGSHOREMEN'S ASSOCIATION, LOCAL 1575 385 wealth of Puerto Rico. Its annual revenue from said operations exceeds $1 million. Upon these admitted facts, it is found that Sea-Land is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent admittedly is a labor organization within the meaning of Section 2(5) of the Act, as is also Office Employees International Union, AFL-CIO (here- in called OEIU), and Local 392, Office Employees International Union, AFL- CIO (herein called Local 392). The uncontraverted record also discloses, and it is found, that since December 12, 1962, when it was granted a charter by OEIU, Office Employees International Union, Local No. 402 (herein called Local 402), has been-and is a labor organization within the meaning of Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES A. Background 1. The history of collective-bargaining for Sea-Land's office and clerical employees in San Juan Prior to April 1962, the office and clerical employees of Sea-Land at San Juan, Puerto Rico "had never been represented by any labor organization." i On April 27, 1962, Local 392, which then represented the office clerical employees of other steamship companies in Puerto Rico, was certified by the Board as the collective- bargaining representative of Sea-Land's employees in the following unit: All office clerical employees working for the Employer [Sea-Land] on the Island of Puerto Rico, including the office janitors, office chauffeurs, mail clerks, telephone opera- tors, and secretaries to the operations manager, traffic manager, and the filing secre- tary. Excluded: The secretaries to the acting manager and assistant manager, all other employees, and supervisors as defined in the Act. Following the certification, in October 1962, Local 392 complained to its Inter- national OEIU because Sea-Land's employees refused to pay initiation fees to it. As a consequence of said complaint, with the consent of Local 392, a new Local No. 402 was chartered by OEIU on December 12, 1962, to separately represent Sea-Land's employees in the certified unit. Simultaneously therewith, Local 392 disclaimed further interest in representing Sea-Land's office clerical employees, and Local 402 undertook such representation? On January 25, 1963, a master collective-bargaining agreement was negotiated by OEIU and its "affiliated Local Unions," including Local 402, with Sea-Land, effective until November 9, 1965, covering the' terms and conditions of employment of all of Sea-Land's "office and clerical employees working at [various] locations," including Puerto Rico. The said master agreement was signed, inter alia, by the president and secretary-treasurer of Local 402.3 Among the classifications of employees covered by the 'said master contract are over, short and damage (OS & D) clerks, junior dispatch clerks, junior payroll clerks, and jumor inbound clerks, whom the Respondent later claimed the right-to represent. 2. ILA's certification and bargaining history with Sea-Land On July 23, 1962, the Respondent was certified by the Board (Case 24-RC- 1971) as the collective-bargaining representative of Sea-Land's employees in the following unit: "all employees employed by the Employer [Sea-Land] at the port of San Juan, P. R., who are engaged in the handling, loading and unloading of cargo, including delivery clerks, stamping clerks, receiving clerks, tally clerks, mechanics, carpenters and helpers, electricians and helpers, dock sailors, refrigera- tion mechanics and helpers, tinsmiths and welders, painters, oilers, janitors, gasoline expenders, maintenance helpers, gatemen, switchmen, tow-motor and tractor drivers on ^ unloading and loading ships, yard clerks, water boys, hatch tenders, stevedores, i See Decision and Direction of Election in Case 24 -RC-1866, footnote 4. Local 402's new charter was not officially delivered until a formal ceremony was held for that purpose on March 26, 1963. However, Local 402 commenced functioning as a separate labor organization on the date of the issuance of'its charter in December 1962. See General Counsel's Exhibit 5. 243-084-67-vol. 159-26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crane operators, signal men, portable crane operators and coopers. Excluded: All office clerical employees, timekeepers, stevedore foremen and port captains, guards and supervisors as defined in the Act." On March 22, 1963, following its certification, Respondent entered, into a collective-bargaining agreement with Sea-Land, effective until September 30, 1964, covering the terms and conditions of employment of the employees in the unit cov- ered by its certificate. The recognition clause of said agreement 4 specifically excluded from the contract's coverage, "all office personnel including those work- ing at the pier." B. The negotiations between ILA and Sea-Land for a renewal of their contract In October 1964, after the expiration of their prior collective-bargaining agree- ment, Respondent and Sea-Land commenced negotiations of a renewal contract. These negotiations continued for about 8 months until May 18, 1965, when Respondent commenced the strike and picketing which are alleged as violations of Section 8(b)(7) (A) and (3) of the Act in the complaint in this case. According to the credited testimony of Jose Prado, Sea-Land's operations man- ager, during the course of the negotiations, Respondent's President Guillermo Ortiz Gonzalez demanded, inter alia, and continued thereafter to maintain that certain of Sea-Land's employees "belong in the ILA contract." The employees whom Respondent claimed the right, to, represent pursuant to its certification by the Board included, over, short, and damage (OS & D) clerks, junior dispatch clerks, junior payroll clerks, and junior inbound clerks. Throughout the negotiations, Sea-Land's representatives maintained that these employees "were covered by the OEIU con- tract," and were within the unit for which the Board certified Local 392 as collective-bargaining representative. ' Sea-Land offered to submit this issue jointly with Respondent to the Board for clarification but Respondent ILA declined the invitation to do so.5 According to Prado's uncontroverted and credited testimony, on March 28, 1965,6 the parties agreed to refer the issue of the proper unit placement of, the employees in the disputed classifications to the International representatives of ILA and OEIU in New York for resolution, and subject to the approval of the Board, Sea-Land agreed to abide by whatever determination the International Tepresenta- tives made.? The record does not disclose, what, if any, efforts were made there- after by the International representatives of OEIU and ILA to reach accord on this issue. On May 17, representatives and counsel for Sea-Land met with Respondent's representatives and counsel at the office of the Insular Conciliation Service. At this meeting, Respondent's President Ortiz again demanded, inter alia, that OS & D clerks, junior dispatch clerks, junior payroll clerks, and junior inbound clerks be included in the unit coverage of the new agreement which the parties were negoti- ating.8 Sea-Land's Manager John R. Bowman replied that the Company "could not arbitrarily give them [Respondent] these people, as they were covered by a contract of another union." Sea-Land's counsel Hall then stated that the Company had filed a petition requesting clarification of the unit for which Respondent was certified,9 and would abide by the Board's determination retroactive to October 1, 1964. Respondent's representatives replied that they "did not wish to submit it 4 General Counsel's Exhibit 8. e On one occasion, an appointment was made by the parties to meet at the Regional Di- rector's office "to resolve this problem," but on advice of counsel, Respondent's President Ortiz failed to appear. 6 All dates hereafter refer to 1965 unless otherwise specified. 7 According to Prado 's testimony, disputed by the Respondent, on March 28 the parties to the negotiations also arrived at a verbal agreement on all the terms of a contract. The resolution of this conflict is deemed unnecessary in the light of subsequent developments which disclose without question that the issue of the inclusion in the contract of the dis- buted employee categories remained unresolved. 8 Another issue which then still remained unsettled was whether Sea-Land had paid proper wages to gatemen and janitors according to the terms of the expired contract. At this meeting Sea-Land offered to submit this issue to arbitration and, if decided against it, to pay the correct wages retroactive to October 1, 1964, but not to 1958 as demanded by ILA. 0 Case 24-UC-6, Charging Party's Exhibit 1. INT'L LONGSHOREMEN'S ASSOCIATION, LOCAL 1575 387 [this dispute] to the National Labor Relations Board," and threatened to strike the next day unless Sea-Land agreed to include the disputed classifications of employ- ees within the unit coverage of the new agreement. The meeting then terminated without agreement. On the next day, Respondent commenced a strike against Sea-Land and picketed its three terminals, trailer control building, and office building. The Respondent's strike and picketing ended on May 20, when "the Company started filing a petition for [an] injunction." After the strike ended, the Company, on June 1, withdrew its petition for clarifi- cation of the unit for which Respondent was certified. Also after the conclusion of the strike, further negotiations between Respondent and Sea-Land resulted in an agreement between them on June 8, on all contract terms.'° In respect to the employees whose working conditions are covered by the new agreement, the unit description is identical with the old contract which expired on September 30, 1964, and specifically excludes from coverage, "all office personnel including those work- ing at the pier." However, the parties orally have agreed that after the new con- tract is signed, either party may "submit any classifications in dispute . . . to the National Labor Relations Board." C. Concluding findings in respect to the alleged Section 8(b) (7) (A) violation As previously noted, the complaint herein alleges that the Respondent, by picket- ing Sea-Land's facilities between May 18 to 20, engaged, inter alia, in unfair labor practices within the meaning of Section 8(b)(7) (A) of the Act." The Respondent admits picketing Sea-Land but denies that its object was recog- nition as the representative of the disputed categories of employees. It contends moreover that Sea-Land's recognition of OEIU and its Local 402 as the rrepresenta- tive of the employees in the disputed classifications was unlawful, that a question concerning the representation of these employees may appropriately be raised because the contract between Sea-Land and OEIU is not a bar, and that Respond- ent is currently certified as the representative of the employees in dispute. These contentions will be considered hereinafter. 1. The object of Respondent's picketing The contention of Respondent that. an object of its picketing of Sea-Land was not recognition is based on the testimony of Respondent's President Ortiz that the unresolved issue in the contract negotiations was Sea-Land's refusal to pay proper wages to gatemen and janitors according to the terms of the expired contract. However, as found above, another issue which remained unresolved and which pre- cipitated the Respondent's strike and picketing was the Respondent's insistence that the disputed classifications of employees be included in the unit coverage of the new agreement which the parties were negotiating. By that demand, the Respondent, in effect, was seeking recognition of Sea-Land as the representative of the employees in the disputed classifications. Picketing for such an object is precisely that which is proscribed by Section 8(b) (7) (A) of the Act. Moreover, to establish a violation of Section 8(b) (7) (A), it is not required that the sole object of the picketing be recognition, but only that an object be such.12 Accordingly, it is found that an object of the Respondent's picketing was to force or require Sea-Land to recognize 10 At the time of the hearing herein , this agreement had been drafted but not yet signed by the parties. See Respondent's Exhibit 6. 11 Section 8 (b) (7) (A) of the Act provides, as follows : 8(b) It shall be an unfair labor practice for a labor organization or its agents- - * w + s r (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees , or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is cur- rently certified as the representative of such employees : (A) where the employer has lawfully recognized in accordance with this Act any other labor ;organization and a question concerning representation may not appro- priately be raised under section 9 (c) of the Act. 12 Locai 345, Retail Store Employees Union ( Gem of Syracuse), 145 NLRB 1168, 1172. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent as the representative of said employees within the meaning of Section 8(b)(7)(A) of the Act. 2. The legality of Sea-Land's recognition of OEIU and Local 402 for the disputed categories As found above, on January 25, 1963, Sea-Land entered into a collective- bargaining contract with OEIU its Local 402 as the representative of its "office and clerical employees" working, inter alia, in Puerto Rico. The said contract by its express terms covered the wages and other terms and conditions of employment of Sea-Land's OS & D clerks, junior dispatch clerks, junior payroll clerks, and junior inbound clerks. At the time of and since the execution of the said contract, the employees covered thereby, including those in the disputed classifications set forth above, "accepted representation by OEIU Local 402," paid dues to that Union and attended its meetings. There is no evidence in the record that when Sea-Land executed its contract with OEIU and its Local 402, or at any time thereafter, that that Union did not represent an uncoerced majority of Sea-Land's employees in the unit described therein, or that any of the employees in the said unit were members of or represented by Respondent. In Shamrock Dairy, Inc.,13 the Board held that the extension by an employer of recognition to a union as the exclusive representative of his employees, and the execution of a collective-bargaining agreement acknowledging that status of the Union, gives rise to two rebuttable presumptions: (1) That the union was the majority representative at the time it was recognized as bargaining agent; for other- wise the parties would have been guilty of unfair labor practices; and (2) that the majority status continued; i.e., that the union continued to be the majority repre- sentative after the execution of the contract. Since its Shamrock decision, the Board has consistently followed the principles enunciated therein.14 The Respondent has offered no evidence to rebut these presumptions. Never- theless, its brief contends that Sea-Land's recognition of OEIU and its Local 302 as the representative of its office and clerical employees on January 25, 1963, was unlawful because: (1) Local 392 and not Local 402 was certified by the Board as their representative; and (2) "Local 402 could not have been the collective bargaining representative of [these] employees as it didn't come into existence until it received its charter on March 26, 1963 [after the contract was executed]." Neither of these contentions has any merit. In respect to the first of these contentions, the record discloses without contra- diction that in respect to the office clerical employees of Sea-Land in Puerto Rico, Local 392 voluntarily relinquished its representation rights to its sister Local 402, and thereafter disclaimed further interest in their representation. There is no evidence that this transfer of affiliation by the employees of Sea-Land was contrary to the desires of any of the employees involved, or was accompanied by any irregu- larity. Moreover, the violation of Section 8(b)(7)(A) with which Respondent is charged is not bottomed on the certification of OEIU or its Local 402, but on their lawful recognition by the contract with Sea-Land dated January 25, 1963. Accordingly, whether or not Local 402 succeeded Local 392 as the beneficiary of the latter's certification is immaterial to the issues herein. Contrary to the further contention of Respondent, the record shows that Local 402 was chartered by OEIU and commenced functioning on December 12, 1962, before the contract with Sea- Land was executed, and not on March 26, 1963, when the formal charter delivery ceremony took place. Accordingly, in accordance with the holding in Shamrock Dairy, supra, and in the absence of any testimony that OEIU or its Local 402 was not the majority representative of Sea-Land's office and clerical employees at any time material herein, it is concluded that Sea-Land "lawfully recognized . another labor organization" within the meaning of Section 8(b)(7)(A) of the Act.15 18119 NLRB 998, 1001-02. 14 Oilfield Maintenance Co., Inc., 142 NLRB 1384, 1386; Bud'8 Cooling Corporation, 138 NLRB 596, 601; Lori-Ann of Miami, Inc., 137 NLRB 1099, 1111, footnote 36; Crown Drug Company, 136 NLRB 865, 869. 15 It should be noted in this connection that on May 25, 1965, Respondent charged Sea- Land with unfair labor practices within the meaning of Section 8(a) (1), (2), and (5) of the Act (Case 24-CA-2106) thereby "challenging the representative status of Local 402 and the International (OEIU)," that by letter dated June 17, the Regional Director refused to issue a complaint thereon, and that Respondent's appeal from such refusal to issue a complaint was denied by the General Counsel on September 29, 1965. INT'L LONGSHOREMEN'S ASSOCIATION, LOCAL 1575 389 3. The issue of whether a question concerning the representation of the employees in dispute might appropriately be raised By statutory language, a finding that "a question concerning representation may not appropriately be raised under Section 9(c) of the Act," is a necessary element for the establishment of a violation of Section 8(b)(7)(A) of the Act. The Respondent contends that the contract executed on January 23, 1963, between Sea- Land and OEIU and its Local 402 is not a bar to the raising of a question con- cerning the representation of the employees in dispute, because of the "transfer of bargaining authority from OEIU Local 392 to . Local 402," because the unit covered by the contract is different from that for which the Board certified Local 392, and because the "disputed categories [of employees] are not now embraced in an appropriate unit " These contentions will be considered seriatim. As already noted, the complaint in this case is not based on the Board's certifi- cation of Local 392 as the representative of Sea-Land's "office clerical employees" in Puerto Rico, but on the Company's recognition by master contract, of OEIU and its Local 402 as the representative of all its "office and clerical employees" in a number of ports, including Puerto Rico. Accordingly, in respect to the issues presented by the complaint, it is immaterial whether Local 402 is the successor to Local 392's certification for Sea-Land's office clerical employees in Puerto Rico, or whether the contract unit is different or includes employees other than those for which Local 392 was certified.16 What is material is whether the master contract between Sea-Land and OEIU and its Local 402 covers an appropriate unit for collective-bargaining purposes, and therefore is a bar to the raising of a question concerning representation, or whether the said contract covers a unit which is repugnant to the Board's policies or its certification, or is otherwise inappropriate for collective-bargaining purposes, and therefore not a bar. In respect to this issue, the record discloses that the job descriptions and classifi- cations of OS & D clerks, junior dispatch clerks, and junior payroll clerks were either adopted or modified by Sea-Land in August 1962.17 According to the job descriptions in evidence,ls these positions are clearly clerical in nature. The employees who occupy these positions, and the junior inbound clerks, perform a substantial portion of their duties in Sea-Land's office, and therefore enjoy a com- munity of interest with office employees. Even assuming that the employees in these disputed categories are regarded as plant clericals, there has been no showing that their interests are different from those of the office clericals. The Board has held units of office and plant clericals. to be appropriate for collective-bargaining where, as here, the parties have agreed to such a unit.19 Moreover, the Board has held that it: is reluctant to disturb existing contract units established by collective bargaining, unless they are repugnant to Board policy or do not assure employ- ees the fullest freedom in exercising the rights guaranteed by the Act 20 No, such repugnancy or lack of freedom has been shown in respect to the unit of employees covered by Sea-Land's master contract with OEIU and its Local 402, nor has any evidence been adduced to show that such unit is inappropriate for purposes of collective bargaining. Moreover the inclusion of Sea-Land's office and clerical employees who work in Puerto Rico in a master contract covering like employees who work for Sea-Land at-other ports does not impair the effective- ness of the contract as a bar to the raising of a question concerning representa- tion. Such a master "multiplant" contract is not regarded by the Board as in derogation of the certified unit, but merely as a merger of the unit with a larger group of employees with a strong community of interest 21 The collective-bargaining agreement entered into on January 25, 1963, between Sea-Land and OEIU and its Local 402 specifically covers the wage rates and other terms and conditions of employment for, inter alia, the Company's employees in la There is no evidence that the contract unit of "office and clerical employees" embraces any employees of Sea-Land in Puerto Rico who are not also "office clerical employees " 17 The record does not disclose whether these job titles were or were not used by Sea-Land prior to August 1962. "Respondent's Exhibit 4A-4C. 11 Eastern Corporation, 116 NLRB 392, 330; Eller Co., 108 NLRB 1417, 1418. 20 The Murray Company of Texas, Inc., 107 NLRB 1571, 1573. 21 Lever Brothers Company, 96 NLRB 443, 450; Owens-Illinois Glass Company, 108 NLRB 947, 950. .. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Puerto Rico who are classified as OS & D clerks, junior payroll clerks, junior dis- patch clerks, and junior inbound clerks 22 The said agreement (article II) contains a union security clause apparently lawful on its face whose legality has not been questioned in this proceeding. The purpose of the Board's contract bar rule "is based on policy considerations. It aims to stabilize an existing contractual rela- tionship for a reasonable term." 23 Accordingly, since it has not been shown that the inclusion of the disputed categories of employees in a master "office and cler- ical" contract unit was in derogation or repugnant to Board policy, or that the resulting unit was inappropriate for collective-bargaining purposes, it is concluded that the master contract between Sea-Land and OEIU and its Local 402 is a bar to the raising of a question concerning the representation of the employees in dispute. - 4. The contention that Respondent is the certified representative of the dispute employees The statutory language of Section 8(b) (7) expressly exempts from its proscrip- tions labor organizations which are certified as the representative of the employees for whom they seek recognition. The Respondent contends that it is entitled to represent Sea-Land's OS & D clerks, junior dispatch clerks, junior payroll clerks, and junior inbound clerks. To the extent that the Respondent's claim to represent these employees can be gained from the testimony of Respondent's only witness, its President Ortiz, it appears to be- based on the contention (a) that Respondent was certified by the Board as the collective-bargaining representative of "stamping clerks" and "yard clerks," and (b) that Sea-Land's employees who are classified as OS & D clerks, junior dispatch clerks, junior payroll clerks, and junior inbound clerks perform the same duties as persons who- under Respondent's certification, are designated as stamping clerks and yard clerks.24 The burden of proving that its certification entitled it to represent OS & D clerks and the other disputed classifica- tion-and thereby establishing itself within the scope of the permissive proviso- necessarily rests upon the Respondent Union. According to the uncontroverted testimony of Rafael Reyes, president of OEIU Local 402, since January 25, 1963, all of the employees in the disputed classifica- tions which Respondent claims the right to represent, have been members of, paid dues to, and attended meetings of OEIU Local 402, and that Union has repre- sented the employees in those classifications. Although these disputed classifica- tions and job descriptions were in existence for at least 7 months when on March 22, 1963, Respondent executed its collective-bargaining agreement with Sea-Land, no claim was then made by Respondent that its certification covered these employ- ees, or that it was otherwise entitled to represent them because of the nature of their work. Sea-Land does not employ persons under the job titles of stamping clerks or yard clerks. These job designations, according to the credited testimony of Sea- Land's Operations Manager Prado, are utilized by steamship companies who oper- ate break-bulk cargo vessels, but not by Sea-Land which operates trailerships. Sea-Land's OS & D clerks and its employees in the other categories in dispute perform substantial portions of their duties in Sea-Land's office. The Respondent specifically excluded from the coverage of its March 22, 1963, contract with Sea- Land "All office personnel including those working at the pier." 25 Respondent's agreement to that exclusion, its failure to then protest the inclusion by Sea-Land of the disputed categories in the unit covered by the OEIU contract, and the absence of any explanation for such failure to protest, clearly require the inference, which is made, that Respondent did not then regard the disputed employees as covered by its certification. - No showing has been made that the duties of these disputed employees have changed since the Respondent so contracted with Sea-Land. Neither has any evidence been presented by Respondent (and there is none in the record) that any of Sea-Land's employees in the disputed classifications ever were members of or 23 General Counsel's Exhibit 5, schedule E. - za C. G. WiZZ4a, Inc., 119 NLRB 1677 ; Airborne Freight Corporation, 142 NLRB 873, 875. 24 Ortiz first testified that Sea-Land changed the job name of stamping clerks to OS & D clerks. However,'he later admitted in cross-examination that he had no recollection that Sea-Land at any time employed persons designated as stamping 'clerks. 25 A like exclusion also appears in the contract which Respondent and Sea-Land nego- tiated after the May 18 to 20 strike which gave rise to the instant case. INT'L LONGSHOREMEN'S ASSOCIATION, LOCAL 1575 391 represented by Respondent. The only evidence offered by Respondent to support the belated contention that its certification covers these employees is the conclu- sionary testimony of its President Ortiz that stamping clerks and yard clerks employed by other employers perform similar functions . In these circumstances, it cannot be said that the Respondent has come forth with sufficient probative evi- dence to establish that it is the certified representative of Sea-Land 's employees in the disputed categories and therefore exempt from the proscriptions of Section 8(b)(7)(A). 5. Conclusion For all the reasons stated above, it is found that the Respondent, by threatening to picket and picketing Sea-Land from May 18 to 20 with an object of forcing or requiring Sea-Land to recognize and bargain with it as the collective-bargaining rep- resentative of Sea-Land's employees classified as OS & D clerks, junior dispatch clerks, junior payroll clerks, and junior inbound clerks, at a time when Respondent was not currently certified as their representative, Sea-Land lawfully recognized OEIU and its Local 402 as the representative of said employees, and a question concerning their representation could not appropriately be raised under Section 9(c) of the Act, thereby engaged in unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act. D. Concluding findings in respect to the alleged Section 8(b) (3) violation The complaint in this case also alleges that by adamanty demanding and insist- ing upon the inclusion of OS & D clerks and the employees in the other disputed categories in the coverage of the new agreement with Sea-Land, and by threatening to strike and striking to compel the acceptance of that demand, Respondent thereby refused to bargain in good faith for the employees for whom it is the certified rep- resentative, and violated Section 8(b)(3) of the Act. _ As previously found, Respondent was certified for a specific unit of Sea-Land's employees, and thereafter executed a collective-bargaining agreement with Sea-Land for the employees for whom it is the certified representative. After the expiration of that contract, when Sea-Land and Respondent engaged in negotiations for a renewal of that contract, the Respondent demanded and insisted that the new agreement, should also include coverage for OS &'D clerks, junior dispatch clerks, junior pay- roll clerks, and junior inbound clerks. Sea-Land refused to bargain with Respond- ent for its employees in these categories on the ground that they were represented by OEIU and its Local 402, and that a valid existing collective-bargaining agree- ment with said unions precluded it from complying with Respondent's demand. Respondent nevertheless persisted in its demand for the inclusion of said employees in the new contract, and refused Sea-Land's offer to jointly petition the Board for clarification of the unit for which Respondent was certified. Thereafter, on May 17, 1965, Respondent threatened to strike and from May 18 to 20 struck Sea-Land, inter alia, to compel the Company to include the disputed employees in the cover- age of the new contract being negotiated. As the certified representative of employees in an appropriate unit, the Respond- ent was obligated under Section 8(b)(3) and (d) of the Act, to bargain collectively with Sea-Land regarding the terms and conditions of employment for the employees for whom it is the certified representative. Absent agreement by Sea-Land, Respond- ent could not lawfully condition bargaining for employees for whom it was the certified representative by demanding and insisting upon bargaining for employees not included in its certified unit 26 As the Court of Appeals said in International Longshoremen's Association v. N.L.R.B., supra, 683: As a matter of law the union cannot resort to economic pressure, including strike action, to force the employer to deal with representatives of a unit dif- ferent from the unit certified by the Board The unit for which Respondent was certified, and the unit description in Respond- ent's first contract with Sea-Land, enumerates many classifications of employees, but 2BInternational Longshoremen's A88ocaation (New York Shipping A88ociatson), 118 NLRB 1481, enforcement denied for reasons not mates Ia1 herein, International Longshore- men'8 A88ootation (N.Y. Shipping Aasoolat{on) v. N .L.R.B., 277 F.2d 681 (C.A.D.C.) ; Doad8 v. International Long8horemen'8 A88ociation, 147 F. Supp. 103 (D.C.S.D.N.Y.), affirmed 241 F.2d 278, 282-283 (C.A. 2) ; Cf. National Maritime Union of America, 78 NLRB 971, 980-982. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it does not include -OS & D clerks , junior payroll clerks, junior dispatch clerks, or junior inbound clerks. Accordingly, since the General Counsel established by com- petent evidence that Respondent struck• Sea-Land, inter alia, to force the Company to bargain with it for employees who were not specified in Respondent's certifica- tion, the burden shifted to the Respondent to come forward with probative evidence that its certification in fact covered said employees. However, as found above, no such probative evidence was adduced by the Respondent. It is therefore found that by adamantly insisting, and by threatening to strike and striking from May 18 to 20, 1965, inter alia, to force Sea-Land to include in the unit coverage of the contract being negotiated, OS & D clerks, junior dispatch clerk, junior payroll clerks, and junior inbound clerks, the Respondent failed and refused to bargain in good faith for the employees for whom it is the certified representative , and thereby engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Sea-Land described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Sea-Land Service, Inc., is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent, International Longshoremen's Association, Local 1575, Dis- trict Council of the Ports of Puerto Rico, ILA, AFL-CIO, Office Employees Inter- national Union, AFL-CIO, Local 392, Office Employees International Union, AFL- CIO, and Office Employees International Union, Local No. 402, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening to picket and, picketing the facilities of Sea-Land Service, Inc., with an object of forcing or requiring Sea-Land to recognize and bargain with Respondent as the collective-bargaining representative of Sea-Land's employees who are classified as OS & D clerks, junior dispatch clerks, junior payroll clerks, and junior inbound clerks, at a time when Respondent was not currently certified as such representative, Sea-Land had lawfully recognized another labor organization as the collective-bargaining representative of said employees, and a question con- cerning their representation could not appropriately be raised under Section 9(c) of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act. 4. On and since July 23, 1962, the Respondent has been the certified collective- bargaining representative in the following unit appropriate for purposes of collective bargaining: all employees employed by the Employer [Sea-Land] at the port of San Juan, P. R., who are engaged in the handling, loading, and unloading of cargo, including delivery clerks, stamping clerks, receiving clerks, tally clerks, mechanics, carpenters, and helpers, electricians and helpers, dock sailors, refrigeration mechan- ics and helpers, tinsmiths and welders , painters, oilers, , janitors, gasoline expenders, maintenance helpers, gatemen , switchmen, tow-motor and tractor drivers on unload- ing and loading ships, yard clerks, water boys, hatch tenders, stevedores, crane operators, signal men, portable crane operators, and coopers. Excluded: All office clerical employees, timekeepers, stevedore foremen and port captains, guards and supervisors as defined in the Act. 5. By adamantly insisting that Sea-Land agree to the inclusion in the coverage of the new agreement being negotiated with Respondent , employees who are not within the appropriate unit for which it was certified , and by resorting to economic pres- sure including , threats to strike and strike action to force or require ' Sea-Land to agree to such inclusion of nonunit employees, the Respondent has failed and refused to bargain collectively in good faith for the employees in the appropriate unit for INT'L LONGSHOREMEN 'S ASSOCIATION, LOCAL 1575 393 which it is the certified representative, and thereby has engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case I recommend that the Respondent, International Longshoremen's Association, Local 1575, District Council of the Ports of Puerto Rico, ILA, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Picketing or threatening to picket the premises of Sea-Land Service, Inc., where an object thereof is forcing or requiring Sea-Land to recognize or bargain with the Respondent as the collective bargaining representative of Sea-Land's employees who are classified as OS & D clerks, junior dispatch clerks, junior pay- roll clerks, junior inbound clerks, or any other classification, where Sea-Land has lawfully recognized, in accordance with the National Labor Relations Act, as amended, Office Employees International Union, AFL-CIO, Local No. 402, Office Employees International Union, AFL-CIO, or any other labor organization other than the Respondent, and a question concerning the representation of said employees may not appropriately be raised under Section 9(c) of the Act, unless the Respondent is currently certified as the collective-bargaining representative of such employees. (b) Adamantly demanding or insisting that any agreement reached with Sea- Land Service, Inc., include employees who are not within the unit found appropriate for collective-bargaining purposes in Case 24-RC-1971, or resorting to economic pressure, including strike action or threat of such action, to force Sea-Land Service, Inc., to include in a contract with Respondent, employees who are,not within the said appropriate unit, so long as the certification issued to Respondent in that case remains outstanding and Sea-Land Service, Inc., insists on confining the negotiations to the employees in said unit. - 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post in conspicuous places-at its business office, meeting halls, and all places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 27 Copies of the said notice, to be furnished by the Regional Director for Region 24, shall after being signed by a duly authorized representative of the Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in such conspicuous places. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (b) Forthwith mail to the aforesaid Regional Director for Region 24, signed copies of the said notice for posting by Sea-Land Services, Inc., if it so chooses, in places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 24, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.28 ' In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." se In the event that this Recommended Order Is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps 'the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, LOCAL 1575, DISTRICT COUNCIL OF THE PORTS OF PUERTO Rico, ILA, AFL-CIO AND EMPLOYEES OF SEA-LAND SERVICE, INC. Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT picket, or cause to be picketed , or threaten to picket Sea-Land Service, Inc., where an object thereof is to force or require Sea-Land to recog- 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nize or bargain with us as the representative of its employees who are classi- fied as OS & D clerks, junior dispatch clerks, junior payroll clerks, junior inbound clerks, or in any other classification , where Sea-Land has lawfully recognized, in accordance with the National Labor Relations Act, as amended, Office Employees International Union, AFL-CIO, Local No. 402, Office Employees International Union, AFL-CIO, or any other labor organization other than us, and a question concerning the representation of said employees may not appropriately be raised under Section 9(c) of the Act, unless we are then currently certified by the National Labor Relations Board as the repre- sentative of such employees. WE WILL NOT adamantly demand or insist that any agreement reached with Sea-Land Service, Inc., include employees who are not within the unit found appropriate in Case 24-RC-1971, and WE WILL NOT resort to economic pres- sure, including strike action or threat of such action , to force Sea-Land to include in a contract with us employees who are not in said appropriate unit, so long as the certification issued to us remains outstanding and Sea-Land insists on confining the negotiations to the employees in said unit. INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION, LOCAL 1575, DISTRICT COUNCIL OF THE PORTS OF PUERTO Rico, ILA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, P.O. Box 11007, Fernandez Juncos Station, Santurce , Puerto Rico 00910, Telephone 724- 7171. Southwire Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case 10-CA-6007. June 15, 1966 DECISION AND ORDER On February 11, 1966, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. The Charging Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 Trial Examiner's Decision, the exceptions, cross-exceptions, and 159 NLRB No. 32.