Local 1575, ILA

LOCAL 1575, ILA 471 Local 1575, International Longshoremen's Association and Puerto Rico Marine Management, Inc. Local 1994, International Longshoremen's Association and Puerto Rico Marine Management , Inc. Cases 24-CP-52 and 24-CP-53 December 21, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On March 24, 1976, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party each filed 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 authority this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The consolidated complaint alleges that the Res- pondents violated Section 8(b)(7)(A) of the Act by threatening to picket Puerto Rico Marine Manage- ment, Inc. (herein PRMMI), with an object of forcing PRMMI to recognize and bargain with the Respon- dents at a time when the Office and Professional Employees International Union, Local 402, AFL- CIO (herein Local 402), was the' lawfully recognized representative of the employees involved. The basic issue in this case is whether PRMMI is an employer engaged in commerce within the meaning of the Act or whether it shares exemption from coverage of the Act with Puerto Rico Marine Shipping Authority, an instrumentality of the Com- monwealth of Puerto Rico. The parties stipulated that the jurisdictional question be resolved by Cases 24- CC-195 and 24-CP-51. That case, National Maritime Union of America, AFL-CIO (Puerto Rico Marine Management, Inc.), 227 NLRB 20 (1976), held that PRMMI was not exempt. For the 'reasons stated therein, we find that PRMMI is an employer,engaged in commerce within the meaning of the Act and shall assertjurisdiction herein. I The Charging -Party has requested oral argument. This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties The Charging. Party also has filed a motion to remand to the Admimstra- tive Law Judge to reopen the hearing for the purpose of conducting an evidentiary hearing. Although no witnesses testified at the hearing herein, the pleadings and stipulations of the parties form a sufficient basis for resolving the issues in this proceeding. Accordingly, the motion is dented. 227 NLRB No. 5 The parties stipulated that the factualallegations of the complaint are true, to receipt of relevant con- tracts, and to certain facts. The basic facts are set forth by the Administrative Law Judge. Briefly, PRMMI had a management contract to operate Sea Land Services, whose office clericals and dispatchers were represented by Local 402. Maritime Transporta- tion Management of Puerto Rico (herein MTM) had a management contract to operate Trans-American Trailer Transport, Inc., whose office clericals and dispatchers were represented by Respondents. MTM'S management"contract was terminated as of September 30, 1975, as were its bargaining agree- ments with Respondents. Respondents then demand- ed that PRMMI hire all- MTM office clericals and dispatchers and that Respondents continue to repre- sent these employees. In furtherance of their de- mands, Respondents threatened to picket PRMMI. Pursuant- to agreement with Local 402 and Respon- dents, PRMMI hired all former MTM office clerical employees and dispatchers. The Administrative Law Judge correctly states that to find a violation it- -Bust,-be established (1) that PRMMI at- all pertinent times has lawfully 'recog- nized Local 402 as exclusive bargaining representa- tive of employees in question; (2) that a question concerning representation could not properly be raised; and (3) that the threat to picket was for the purpose of securing recognition or bargaining. Para- grah 17 of the complaint states that an object of Respondents' actions was "to force and require PRMMI to recognize and bargain with [Respon- dents] as the collective bargaining representative of the office clerical employees and dispatchers of PRMMI." Paragraph 19 of the complaint states that "PRMMI has, in accordance with the Act, lawfully recognized [Local 402] as the representative of the office clerical employees and dispatchers of PRMMI for collective bargaining purposes" at pertinent times. The Administrative Law Judge concluded, how- ever, that a question concerning representation could be raised and dismissed the complaint. In doing so he relied on certain language in paragraph 16 of the complaint, which reads: Pursuant to agreement by PRMMI, OPEIU and Respondents, PRMMI has employed -since October 1, 1975, all of the former MTM office clerical employees and, dispatchers, without repre- Office and Professional Employees International Union, Local 402, AFL- CIO, is a Party in Interest herein. The International has filed a motion to remand to the Administrative Law Judge for receiving additional evidence. The International states that the hearing was defective because it did not receive notice thereof and did notparticipate therein. Local 402, the Party in Interest, however, was notified of the hearing and, through a representative, participated in the hearing. Accordingly, the motion is denied as the International has not shown that it was prejudiced. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentation by any labor organization, but Respon- dents continue to demand under threats described in paragraphs 14 and 15, above, the right to represent them, notwithstanding PRMMI's recog- nition of, and contract with, OPEIU covering such employee classifications. The Administrative Law Judge specifically relied on the words "without representation by any labor organization" to find that a question concerning representation could be raised. However unfortunate the choice of words in paragraph 16,2 the context, further statements in the complaint, and stipulations by the parties make clear that no question concerning representation can be raised. Paragraph 16 of the complaint describes PRMMI's actions in response to Respondents' threats and demands and that Respon- dents continued their threats. Paragraph 19 of the complaint states, as indicated above, that Local 402 is recognized as collective-bargaining representative. The paragraph also succinctly states that "a question concerning the representation of such employees under Section 9(c) of the Act could not appropriately be raised at the time of [Respondent's] conduct." At the hearing the parties stipulated as follows: Paragraph 3, that Maritime Transportation Man- agement of Puerto Rico dispatcher employees were and still are claimed to be represented by Respondent Local 1575, International Longshore- men's Association, and Respondent Local 1994, International Longshoremen's Association repre- sented Maritime Transportation Management of Puerto Rico office clerical employees and still claims to represent them. On the other hand, such employee classifications employed by the Charging Party, Puerto Rico Marine Management, Inc., were and are represented by the following labor organization, Office and Professional Employees International Union Local 402, AFL-CIO. When Puerto Rico Marine Management, Inc. took over the former Maritime Transportation Management of Puerto Rico employees in such classifications, Respondent's Locals 1575 and 1944, International Longshoremen's Association claimed and continued to claim such classifica- tions. [Emphasis supplied.] The parties have clearly stipulated that the employees in question were and are represented by Local 402. The parties have also stipulated to the facts in the complaint, including paragraph 19. Specifically, with the exception of the conclusionary allegations of the complaint (par. 20 and 21) and of the allegation that PRMMI is an employer within the meaning of the Act, Respondents withdrew their denials to the complaint, admitted the same, and stipulated that factual findings may be predicated upon the same. For these reasons, we find that no question concern- ing representation could properly be raised. Accordingly, we find that Respondent has violated Section 8(b)(7)(A) of the Act and shall order it to cease and desist therefrom and take certain affirma- tive action. CONCLUSIONS OF LAW 1. Puerto Rico Marine Management, Inc., is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 1575, International Longshoremen's As- sociation; Local 1994, International Longshoremen's Association; and Office and Professional Employees International Union, Local 402, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening to picket Puerto Rico Marine Management, Inc., with an object of forcing or requiring PRMMI to recognize and bargain with Respondents as the collective-bargaining representa- tive of PRMMI's office clerical employees and dispatchers at a time when PRMMI lawfully recog- nized Office and Professional Employees Internation- al Union, Local 402, AFL-CIO, as the collective- bargaining representative of such employees, and a question concerning representation could not be raised under Section 9(c) of the Act, the Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, Local 1575, International Longshoremen's Associa- tion, and Local 1994, International Longshoremen's Association, San Juan, Puerto Rico, their officers, agents, and representatives, shall: 1. Cease and desist from threatening to picket, picketing, or causing to be picketed Puerto Rico Marine Management, Inc., with an object of forcing or requiring Puerto Rico Marine Management, Inc., to recognize and bargain with Respondents as the 2 Counsel states that the words were meant to say that former MTM for what it purports to be-counsel's explanation . We do not, of course, base employees were not required to pay dues to Local 402 . We mention this only our findings on counsel's statement since it is not evidence LOCAL 1575, ILA 473 collective-bargaining representative of office clerical employees and dispatchers employed by Puerto Rico Marine Management, Inc., at a time. when Puerto Rico Marine Management, Inc., has lawfully recog- nized Office and Professional Employees Internation- al Union, Local 402, AFL-CIO, as the collective- bargaining representative of such employees, and a question of representation may not be raised under Section 9(c) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at their offices, meeting rooms, and hiring halls in Puerto Rico copies of the attached notice marked, "Appendix." 3 Copies, of said notice, in English and Spanish, on forms provided by the Regional Director, for Region 24, after being duly signed by the Respondents' representative, shall -be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Director for Region 24 signed copies of the Appendix for posting by Puerto Rico Maine Management, Inc., in places where notices to employees are customarily posted, if the Company is willing to do so. (c) Notify the Regional Director for Region 24, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. MEMBER PENELLO, dissenting: For the reasons stated in my dissent in National Maritime Union off America,AFL-ClO(PuertoRicoMa- rine Management, Inc.), 227 NLRB 20 (1976), I would find PRMMI to be exempt from the coverage of the Act. Accordingly, I would dismiss the complaint in its entirety. 3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the -United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to give evidence, the National Labor Relations Board found that we violated the National Labor Relations Act and ordered us to post this notice. WE WILL NOT threaten to picket, picket, or cause to be picketed Puerto Rico Marine Manage- ment, Inc., with an object of forcing or requiring Puerto Rico Marine Management, Inc., to recog- nize and bargain with us as the collective-bargain- ing representative of office clerical employees and dispatchers employed by that Company at a time when Puerto Rico Marine Management, Inc., lawfully recognizes Office and Professional Em- ployees International Union, Local 402, AFL- CIO, as the collective-bargaining representative of such employees, and a question of representation may not be raised under Section 9(c) of the Act. LOCAL 1575 - INTERNATIONAL LONGSHOREMEN'S ASSOCIATION LocAL 1994, INTERNATIONAL LONGSHOREMEN'S ASSOCIATION DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This case was heard at Hato Rey, Puerto Rico, on December 18, 1975. An order consolidating cases, complaint and notice of hearing issued on November 18, 1975, alleging that the Respondent, Local 1575, International - Longshoremen's Association (hereafter referred to as Local 1575), and Local 1994, International Longshoremen's Association (hereafter referred to as Local 1994), violated Section 8(b)(7)(A) of the Act by threatening to picket the Charging Party, Puerto Rico Marine Management, Inc. (hereafter referred to as PRMMI), an object of which was to force and require PRMMI to recognize and bargain with Respondents as the collective-bargaining representative of PRMMI's office clerical employees and dispatchers, at a time when PRMMI had lawfully recognized the Office and Professional Em- ployees International Union (hereafter referred to as OPEIU), as the representative for said employees, and at a time when a question concerning representation with respect to these employees could not be raised under Section 9(c) of the Act. The facts concerning the alleged violations of the Act are not in dispute, since at the hearing the parties entered into a stipulation in connection with which the Respondents withdrew their answer denying the factual allegations of the complaint. Respondents continue to deny the commission of any unfair labor practices alleged in the complaint and, in addition, continue to deny that PRMMI is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Additionally, with respect to the 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jurisdictional issue, it was stipulated that this precise question had been litigated in National Maritime Union of North America, AFL-CIO (Puerto Rico Marine Manage- ment, Inc.), Cases 24-CC-195 and 24-CP-51, currently pending before Administrative Law Judge Paul Bisgyer, and that the Board's decision concerning thejunsdictional question in that case by dispositive of that issue in this case. [227 NLRB 20 (1976).] All parties were afforded a full opportunity to participate at the hearing. Oral argument was waived. The briefs, filed by the General Counsel, the Charging Party, and the Respondents, have been carefully considered. Upon the entire record, I make the following: FINDINGS OF FACT 1. JURISDICTION As admitted by Respondents, PRMMI is, and has been at all times material herein, a corporation duly organized, and existing by virtue of the laws of the State of Delaware. PRMMI maintains its principal office and places of business at Puerto Nuevo , San Juan , Puerto Rico, where it is, and has been at all times material herein , continuously engaged in providing management services and related services for ocean, common-carrier freight transportation for Puerto Rico Maritime Shipping Authority, a public corporation established in June 1974 by the Common- wealth of Puerto Rico . During the past year , a representa- tive period, PRMMI , in the course and conduct of its business operations, performed services valued in excess of $500,000, of which services valued in excess of $50,000 were performed in, and for various enterprises located outside, Puerto Rico. I find that the Charging Party, PRMMI, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.' It. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and I find, that Local 1575 and Local 1994 each are and have been at all times material here in labor organizations within the meaning of Section 2(5) of the Act. It is also found, based upon the stipulated facts set forth below in section III of this Decision, that the OPEIU also is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts Puerto Rico Maritime Shipping Authority (herein called PRMSA), is and had been at all times material herein a public corporation established in June 1974 by the Com- monwealth of Puerto Rico for the purpose of providing ocean common-carrier freight transportation between Puerto Rico and the United States mainland, and for said purpose it acquired certain facilities of private commercial carriers engaged in such transportation, including Sea Land Services (herein called Sea Land), and Trans-American Trailer Transport, Inc. (herein called TTT). PRMSA, in i In the event that the Board finds, on the basis of the record in National Maritime Union of North America, AFL-CIO (Puerto Rico Marine Manage- ment, Inc), Cases 24-CC-195 and 24-CP-51, currently pending before Administrative Law Judge Paul Bisgyer, that PRMMI is not an employer turn, entered into management service contracts with PRMMI on July 1, 1974, and with Maritime Transporta- tion Management of Puerto Rico (herein called MTM), on September 26, 1974, for exclusive operation of the Sea Land and TTT acquisitions, respectively. PRMMI and MTM, in turn, took over the office clerical employees and dispatch- ers previously employed by Sea Land and TTT, respective- ly, at the facilities here involved. The Sea Land office clerical employees and dispatchers had been historically represented by Office and Profession- al Employees International Union, Local 402, AFL-CIO (herein called OPEIU), and PRMMI recognized OPEIU as their exclusive bargaining representative, entering into adoption of an existing lawful and valid OPEIU contract effective until November 9, 1975. The TTT employees in such classifications taken over by MTM, on the other hand, were represented by Local 1994 (office clericals) and Local 1575 (dispatchers), which were Locals recognized by MTM and are parties to bargaining contracts with MTM covering such employees, effective by the terms thereof until April 11, 1978. On August 21, 1975, MTM gave written notice to Locals 1994 and 1575 that PRMSA intended to cancel the MTM management contract as of September 30, 1975, and to consolidate all management under PRMMI, in which event the bargaining contracts between MTM and said Locals would terminate. On September 3, 1975, MTM further notified said Locals that its management contract had in fact been canceled by PRMSA, that MTM would cease operations as of September 30, 1975, and that bargaining contracts with said Locals were terminated as of the latter date. Commencing on or about August 21, 1975, and continu- ing on various dates thereafter, Locals 1994 and 1575 made demands upon PRMMI that it hire all of the office clerical employees and dispatchers employed by MTM, and that Locals 1994 and 1575 continue to represent such employ- ees, notwithstanding coverage of the office clerical employ- ee and dispatcher classifications by the PRMMI-OPEIU contract described above. In furtherance of these demands, meetings were held in Respondent's main office on August 21 and 28, September 3 and 4, and October 1, 1975, between PRMMI officials and Respondents. At these meetings Respondents' agents, Guillermo Ortiz, Sr. and Jr., president and vice president, respectively, of Local 1575 and advisors of Local 1994, threatened that unless PRMMI complied with their demands Local 1994 office clerical employee members would picket PRMMI at PRMMI premises in Puerto Nuevo, and Local 1575 stevedoring and other members would honor such picketing by refusing to perform services for PRMMI. Pursuant to agreement by PRMMI, OPEIU, and Re- spondents, PRMMI has employed since October 1,1975, all of the former MTM office clerical employees and dispatch- ers, without representation by any labor organization, but Respondents continue to demand the right to represent them, notwithstanding PRMMI's recognition of, and engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act, I would then find that PRMMI is not an employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act in this case. [227 NLRB 20 (1976)1 LOCAL 1575, ILA 475 contract with, OPEIU -covering such employee classifica- tions. Locals 1994 and 1575, at the time they engaged in the conduct described above, were, not, and are not now currently, certified as the representative of any office clerical employees or any dispatchers employed by PRMMI. B. Contentions of the Parties In his brief the General Counsel contends that on the basis of the Waterway Terminals case,2 Respondents' threat to picket PRMMI for a recognitional object violated Section 8(b)(7)(A) of the Act. Respondents contend that when PRMMI took over the operations formerly performed by MTM, it also inherited MTM's contractual obligation to Respondents. It is further contended that there is no evidence that OPEIU is now the majority representative of the employees in the classifica- tions in issue here. C. Discussion and Conclusions In urging that a violation of Section 8(b)(7)(A) of the Act be found, the General Counsel, in his brief, relies entirely on the Board's decision in Waterway Terminals. As suc- cinctly stated in Waterway, in order for the General Counsel to prevail in this proceeding it must be established that (1) PRMMI at all pertinent times has lawfully recognized OPEIU as the exclusive bargaining representa- tive of the office clerical employees and dispatchers in question; (2) that a question concerning representation could not properly be raised under Section 9 of the Act at the time Respondents threatened to engage in picketing PRMMI; and (3) that the threat to picket PRMMI was for the purpose of securing recognition for Respondents or requiring PRMMI to engage in collective bargaining with Respondents with respect to wages, hours, or terms or conditions of employment of PRMMI's office clerical employees and dispatchers. Respondents admit that OPEIU has been the lawfully recognized exclusive collec- tive-bargaining agent of the PRMMI office clerical employ- ees and dispatchers formerly employed by Sea Land at its facilities, but maintains that it should continue to represent the former MTM employees who worked at the facilities formerly owned by TTT. Respondents also admit that they threatened to picket PRMMI unless PRMMI hired all of the former MTM office clerical employees and dispatchers and unless Respondents continued to represent these employees. Despite considerable similarities between the Waterway case and the instant matter, I find that the facts involved herein render these two cases distinguishable. As analyzed by the Board in Teamsters Local Union No. 676 (Shell Chemical Company, a Division of Shell Oil Company), 199 NLRB 445,446 (1972): Thus, in Waterway Terminals, the respondent labor organization demanded as the price for withholding picket an arrangement whereby its members would effect a mass displacement of the employees at Water- way who were represented by another labor organiza- tion. As the Trial Examiner pointed out in that case: Viewed realistically, the immediate objective of Respondent's demands and the inevitable conse- quence of Waterway's acquiescence would have been the establishment of [Respondent] as the dominant voice in the representation of 60 or 70 employees affected by the change. In the instant case, however, Respondents were not seeking to substitute themselves as exclusive collective- bargaining representative for any of the employees of PRMMI represented by the OPEIU at the former Sea Land facilities. Rather, Respondents demanded that the former MTM office clerical employees and dispatchers who had worked at the former TTT facilities be employed by PRMMI and that Respondents, who had previously been the lawful representative of these employees, continue as their exclusive representative. Keeping in mind this distinc- tion, I note a further significant factual distinction here which I find to be dispositive of the instant proceeding. The stipulated facts here show that pursuant to an agreement between PRMMI, the OPEIU, and the Respondents PRMMI has employed, since October 1, 1975, all of the former MTM office clerical employees and dispatchers, without representation by any labor organization. Thus it is clear that since October 1, 1975, the office clerical employ- ees and dispatchers in question have been working without any of the benefits of any collective-bargaining agreement. Whether this October 1, 1975, arrangement entered into by all the parties in this matter was simply a convenient device to, in effect, obtain what amounts to an advisory opinion from the Board concerning the merits of this dispute, while at the same time maintaining industrial peace, is not revealed in the record. In any event, the Act provides other more appropriate means of resolving such questions short of denying the affected employees access to representa- tion.3 Nevertheless, it is clear that one of the prerequisites to a finding of an 8(b)(7)(A) violation is that a question concerning representation could not properly be raised. I find and conclude that, under the circumstances discussed above, a question concerning representation may be properly raised. Accordingly, I find and conclude that the General Counsel has not proven that the Respondents violated Section 8(b)(7)(A) of the Act. CONCLUSIONS OF LAW 1. Puerto Rico Marine Management, Inc., is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 4 2 International Longshoremen 's and Warehousemen 's Union Local No. 8 Service, Inc.), 185 NLRB 163 (1970), in which the Board talks of instability in (Waterway Terminal Company), 193 NLRB 477 (1971). the bargaining relationship as permitting a question concerning representa- 3 Cf. Sheet Metal Workers Local No. 2, AFL-CIO (Farmer & Sipes Inc tion to be raised. d/b/a Rain-Flow of Kansas City), 201 NLRB 568 (1973), and Local Union No 4 In the event the Board should find in National Maritime Union of North 42, Laborers International Union of North America, AFL-CIO (R & E Asphalt America, AFL-CIO (Puerto Rico Marine Management, Inc.), Cases 24-CC- (Continued) 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Local 1575, International Longshoremen's Associa- 3. Respondent did not violate Section 8(b)(7)(A) of the tion, Local 1994, International Longshoremen's Associa- Act, as alleged in the complaint. tion, and Office and Professional Employees International [Recommended Order for dismissal omitted from pubh- Union, Local 402, AFL-CIO, are labor organizations cation.] within the meaning of Section 2(5) of the Act. 195 and 24--CP-51, that PRMMI is not an employer engaged in commerce within the meaning of the Act, I would then conclude that PRMMI is not an employer engaged in commerce within the meaning of Sec. 2(2),(6), and (7) of the Act