National Maritime Union

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Maritime Union of America, AFL-CIO and Puerto Rico Marine Management, Inc. National Maritime Union of America, AFL-CIO and Puerto Rico Marine Management, Inc. and Seafar- ers International Union, AFL-CIO, Party to the Contract National Maritime Union of America, AFL-CIO and Puerto Rico Marine Management, Inc. Cases 24- CC-195, 24-CP-51, 22-CP-243, 5-CC-811, and 5-CP-107 December 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On May 15, 1976, Administrative Law Judge Paul Bisgyer issued the attached Decision in this proceed- ing. Thereafter, Counsel for the General Counsel in Region 5 and in Region 24 filed exceptions and supporting briefs, the Respondent filed exceptions and a supporting brief," the Charging Party filed an answering brief to the Respondent's exceptions, and the Party to the Contract filed cross-exceptions and a brief in support thereof and in answer to the Respondent's exceptions. 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 in 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 and to adopt his recommended Order as herein modified.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, National Maritime Union of America, AFL- CIO, New York, New York, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): I Respondent also filed a request for oral argument As the record, exceptions, and briefs adequately present the positions of the parties, we deny the request 2 We find merit in the exception taken by the counsel for the General Counsel (Cases 24-CC-195, 24-CP-51) with regard to the inadvertent failure of the Administrative Law Judge to require the posting of appropriate 227 NLRB No. 6 "(a) Post at its offices, meeting rooms, and hiring halls in Puerto Rico, Baltimore, Maryland, and Elizabeth, New Jersey, copies of the attached notice marked "Appendix."68 Copies of said notice, in English and in Spanish, on forms provided by the Regional Directors for Regions 24, 22, and 5, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER PENELLO, dissenting in part: Contrary to the position taken by my colleagues in the majority, I would find Puerto Rico Marine Management, Inc. (PRMMI), the Employer herein, to be exempt from the coverage of the Act. Accord- ingly, I would, unlike my colleagues, dismiss all of the 8(b)(7)(A) allegations. In agreement with my col- leagues, however, I would also dismiss the 8(b)(4)(B) allegations on the merits since they are unaffected by my conclusion herein with regard to the employer status of PRMMI. In June 1974, the legislature of the Commonwealth of Puerto Rico created the Puerto Rico Marine Shipping Authority (PRMSA)3 as a public corpora- tion for the purpose of providing ocean common carrier freight transportation between Puerto Rico and the United States. As clearly stated in the preamble to the act establishing PRMSA,4 "(t)his act, being necessary for the welfare of the Commonwealth and its inhabitants, shall be liberally construed to fulfill the purposes thereof." The legislation specifi- cally authorized PRMSA to "acquire and operate shipping lines and terminal facilities as a `public service.' " In order "to carry out and fulfill the purposes and provisions of this act," the statute provided, inter alia, that PRMSA have the power "to enter into contracts or other arrangements with any natural or legal person, who is a citizen of the United States, for the management of the operations of any or all the undertakings subject to the control of .. . [PRMSA] or for consulting or advisory services related with the operation of such undertakings." 5 Pursuant to its statutory authority, PRMSA first entered into a management services contract with notices in both the English and Spanish languages Accordingly, we shall modify the Administrative Law Judge's recommended Order to so provide 3 Act No 62, 23 L.P R A sec. 3051, et seq 4 Sec. 26 of Act No. 62. 5 Sec 5(i) of Act No. 62. NATIONAL MARITIME UNION 21 PRMMI for the management and operation of PRMSA's eight Lo-Lo vessels. In addition to entering into the management service contract with PRMMI, PRMSA also designated the president of PRMMI as attorney-in-fact "to manage designated vessels, equipment, terminals, and other assets, facilities and systems owned, leased . or chartered by" PRMSA. During the same time period, PRMSA also entered into a similar contractual arrangement with Maritime Transportation Management, Inc. (MTM) covering the Ro-Ro vessels involved in the instant dispute. In my view, it is perfectly clear that PRMSA has acted within its statutory authority in delegating to PRMMI and MTM the very exempt function that it, PRMSA, was mandated to perform by the Puerto Rican legislature. Under- these circumstances, I would find that PRMMI shares PRMSA's exemption from the Act as a political entity under the Board's "intimately connected" test .6 My reading of the case law in this area convinces me that, where the services provided by an employer are intimately connected with the- exempt operations of an exempt entity, the employer shares the latter's exemption. This is especially true when the employer is"performing the very exempt function of the exempt entity as mandated by the legislature.? It is also true when the services provided are commonly recognized as an -essential municipal or governmental function.8 In Rural Fire Protection Company, supra, the Board found that -where a private corporation performs an essential municipal function under contract for a city, the employer shares the exemption of the city from the Act as an adjunct of the municipality. The holding therein that the employer was exempt be- cause its services were intimately related to the city's municipal purposes was based on the Board's conclu- sion that firefighting service "is itself an essential municipal function which [the city], instead of performing directly with its own employees, dele- gated to the [e]mployer to perform on its behalf, making available its facilities and equipment for that purpose." In Transit Systems, Inc., the Board declined to assert jurisdiction over, a bus company which provided bus service to three cities pursuant to a contract with a transit commission created by act of the Minnesota state legislature. The holding therein that the employer's services were intimately con- nected with- the exempted operations of the govern- mental entity was based on the fact that the employer performed the exempt function of the transit commis- sion as mandated by the legislature, i.e., public transportation by bus, and not on the ground that a mass urban transit system is a commonly recognized essential municipal or governmental function.9 Likewise, in the instant case, it is not necessary for us to determine whether or not ocean common carrier freight transportation is a commonly recognized essential municipal or governmental function, but only whether or not the Employer herein is perform- ing the exempt functions of PRMSA as mandated by the Puerto Rican legislature. Since it is clear that PRMMI is performing the exempt functions of PRMSA, I would find the Employer to be exempt by the Act from the Board's jurisdiction. Since a violation of Section 8(b)(7)(A) of the Act requires that the object of the picketing be a statutory "employer," I would, as stated above, dismiss all of the 8(b)(7)(A) allegations. 6 Herbert Harvey, Inc v. NLRB., 424 F.2d 770, 774-775 (C.A.D.C., 1969), enfg.171 NLRB 238 (1968). s Transit Systems, Inc, 221 NLRB 299 (1975) s Rural Fire Protection Company, 216 NLRB 584 (1975). 9 My colleagues infer that the Board, in reaching its conclusion in Transit Systems, viewed mass urban transit as a commonly recognized essential municipal or governmental function. While I do not necessarily disagree with the conclusion that mass urban transportation is a commonly recognized essential municipal or governmental function, the Board's decision in Transit Systems and its decisions in subsequent cases are not based on such an inference. See MTL, Inc, 223 NLRB 1071 (1976)and Mississippi City Dines, Division ofAmerican Transit Corp., 223 NLRB 11(1976) APPENDIX NOTICE To EMPLOYEES AND MEMBERS 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 picket or cause to be picketed, or threaten to picket or cause to be picketed, the vessels, port, and other facilities of Puerto Rico Marine Management, Inc., in Puerto Rico, Balti- more, Maryland, Elizabeth, New Jersey, and at any other locations where Puerto Rico Marine Management, Inc., conducts its shipping opera- tions, with an object of forcing or requiring Puerto Rico Marine Management, Inc., to recognize and bargain with us as the collective-bargaining repre- sentative of unlicensed seamen employed by that Company aboard its Roll-On/Roll-Off vessels at a time when Puerto Rico Marine Management, Inc., lawfully recognizes Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, as the collec- tive-bargaining representative of such employees, 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and a question of representation may not be raised under Section 9(c) of the Act. NATIONAL MARITIME UNION OF AMERICA, AFL-CIO DECISION STATEMENT OF THE CASES PAUL BISGYER, Administrative Law Judge: Cases 24- CC-195 and 24-CP-51, with all the parties represented, were heard on November 18, 19, and 20, 1975, in Hato Rey, Puerto Rico, on the consolidated complaint of the General Counsel issued on October 22, 1975,1 as amended at the hearing, and the answer of National Maritime Union of America, AFL-CIO,2 herein Respondent or NMU. In issue are Respondent's picketing activities engaged in from October 3-12, 1975, at the port facilities occupied by Puerto Rico Marine Management, Inc., herein PRMMI, in San Juan, Puerto Rico, which are alleged to have violated Section 8(b)(4)(i) and (ii)(B) and Section 8(b)(7)(A) of the National Labor Relations Act, as amended.3 At the close of the hearing, the parties waived oral argument but subse- quently filed very illuminating and helpful briefs in support of their respective positions. On November 28, 1975, the General Counsel issued a complaint in Case 22-CP-243,4 alleging that Respondent from October 3 to about October 10, 1975, picketed at the piers used by PRMMI in Port Elizabeth, New Jersey, and thereby violated Section 8(b)(7)(A) of the Act. In its answer, Respondent denies the commission of any unfair labor practices. Thereafter, the parties, in lieu of a hearing and oral argument on the issues in this case, executed a stipulation which provides that the charge, complaint and notice of hearing, and answer in this case together with the certified record of the proceedings in Cases 24-CC-195 and 24 CP-51 and the agreed-upon facts embodied in the stipulation shall constitute the entire record in Case 22-CP- I The consolidated complaint is based on separate charges filed in the indicated cases on October 3, 1975, copies of which were duly served on Respondent by registered mail on October 6, 1975 Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, was permitted to intervene in these proceedings Another charge in Case 24-CD-12 was also filed on October 3, 1975, and a hearing pursuant to Sec. 10(k) of the National Labor Relations Act, as amended, involving the work dispute underlying the alleged violations in the present consolidated proceedings, was separately held before me on November 20, 1975 2 The name of the Respondent appears as corrected in the parties' stipulation in Cases 5-CC-81 I and 5-CP-107. 3 Sec. 8(b)(4), among other things, makes it an unfair labor practice for a labor organization or its agents, (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to . transport . or to perform any services , or (u) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce , where in either case an object thereof is- (B) forcing or requiring any person to cease . . handling, transporting . or to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor orgainzation as the representative of his employees unless such labor organisation has been certified as 243. In addition, the stipulation provides for the Adminis- trative Law Judge to render a decision containing findings of fact and conclusions of law and an appropriate recom- mended order and notice, if necessary. The stipulation is approved and all the described documents are received in evidence as exhibits in the case. A brief was subsequently submitted by PRMMI, while Respondent and the Seafarers International Union of North America, Atlantic, Gulf, Lakes and Inland Waters District, AFL-CIO, herein the SIU, rely on their respective briefs filed in Cases 24-CC- 195 and 24-CP-51. On December 3, 1975, the General Counsel issued a consolidated complaint in Cases 5-CC-811 and 5-CP-1075 in which it is alleged that Respondent violated Section 8(b)(4)(i) and (ii)(B) and Section 8(b)(7)(A) of the Act by picketing the entrance to the Dundalk Marine Terminal, in the port of Baltimore, Maryland, from October 3-12, 1975, and the entrance to the Canton Marine Terminal in the same port from October 10-12, 1975. Respondent also denies in its answer that it committed any unfair labor practices on these occasions. On December 12, 1975, the parties entered into a stipulation which similarly provides that the charges, the order consolidating cases, the com- plaint and notice of hearing, and the answer together with the certified record of proceedings in Cases 24-CC-195 and 24-CP-51 and the agreed-upon facts contained in the stipulation shall constitute the entire record in Cases 5-CC- 811 and 5-CP-107 and that no oral testimony or oral argument is necessary or desired by the parties. The stipulation also provides for the issuance by the Adminis- trative Law Judge of a decision setting forth his findings of fact and conclusions of law and prescribing an appropriate order and notice if required. This stipulation is also approved and the described documents are received in evidence as exhibits in those cases. All the parties elected not to file additional briefs but to rely on the briefs submitted by them in the Puerto Rico cases. the representative of such employees under the provisions of section 9. Provided That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing Insofar as relevant, Sec 8(bX7) makes it an unfair labor practice for a labor organization or its agents- ... 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 currently certified as the representative of such employees' (A) where the employer has lawfully recognized in accor- dance with this Act any other labor organization and a question concerning representation may not appropriately be raised under section 9(c) of this Act 4 The charge in this case was filed on October 3, 1975, and a copy was served on Respondent by registered mail on the same day. It appears that another charge, Case 22-CD-278, was also filed to resolve the underlying jurisdictional dispute. S The charge in Case 5-CC-811 was filed on October 2, 1975, a copy of which was served on Respondent by registered mail on October 6, 1975 The charge in Case 5-CP-107 was filed on October 6, 1975, a copy of which was similarly served on Respondent on the next day. Moreover, it appears that a charge in Case 5-CD-216 was also filed to resolve the underlymgjunsdic- tional dispute in the above cases NATIONAL MARITIME UNION On April 1, 1976, I issued an order consolidating the foregoing cases for all purposes. Upon the entire consoli- dated and stipulated records, and from my observation of the demeanor of the witnesses at the hearing in Cases 24- CC-195 and 24-CP-51, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF COMPANIES INVOLVED PRMMI, a Delaware corporation, is engaged in provid- ing marine transportation and related services between Puerto Rico and the mainland of the United States and in interstate and foreign commerce. It has its principal office and place of business at the marine dock in Puerto Nuevo, Puerto Rico, and maintains other places of business and port facilities in Elizabeth, New Jersey; Baltimore, Mary- land; and at other locations in the United States. During the past year, PRMMI derived gross revenues in excess of $500,000 from the handling and transportation of cargo in interstate and foreign commerce in connection with its services as manager and operator of vessels and related facilities owned by Puerto Rico Marine Shipping Authori- ty, herein PRMSA, a public corporation. During the same period, PRMMI provided and performed services valued in excess of $50,000 for companies located outside the State of New Jersey. Francisco Vega Otero, Inc., with offices at Isla Grande, Puerto Rico, and Daniel Marrero Ternon of Bayamon, Puerto Rico, are independent trucking companies engaged in the transportation of vans to and from PRMMI premises for various firms. Each company derives income in excess of $50,000 annually for such services. John T. Clark and Sons, Inc., a Maryland corporation, is engaged in Baltimore, Maryland, in the business of loading and unloading vessels owned by companies engaged in the transportation of cargo in interstate and foreign commerce. It is conceded that PRMMI, PRMSA, Francisco Vega Otero, Inc., John T. Clark and Sons, Inc., and Daniel Marrero Temon are and have been at all times material herein persons engaged in commerce and in industries affecting commerce within the meaning of Section 2(1), (6), and (7) and Section 8(b)(4) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED 23 Ing ocean common carrier freight transportation between Puerto Rico and the mainland of the United States. Acting pursuant to its statutory authority, PRMSA acquired vessels, trailer vans, cargo containers, shore installations, and other facilities from private commercial carriers which had previously engaged in such transportation service. Included in its acquisitions were four roll-on/roll-off vessels, the subject of the labor dispute later discussed, and eight lift-on/lift-off vessels.6 Rather than operate the vessels itself, PRMSA on July 1, 1974, entered into a management services contract with PRMMI, an independent private enterprise, whereby PRMMI undertook to operate the eight Lo-Lo vessels for a prescribed fee. On or about October 1, 1974, a similar contractual arrangement was made with another private company, Maritime Transportation Man- agement, Inc., herein MTM, for the operation of the four Ro-Ro vessels. Continuing the contractual collective-bar- gaining relationships the former owners of the vessels had established with different unions, PRMMI manned the Lo- Lo vessels with unlicensed seamen represented by SIU, while MTM manned its Ro-Ro vessels with unlicensed seamen represented by NMU. Within a year following PRMMI's and MTM's assump- tion of their managerial functions for PRMSA, the latter decided, effective October 1, 1975, to consolidate both operations under the sole management and responsibility of PRMMI. Accordingly, PRMSA notified PRMMI and MTM of this decision and the contemplated transfer of MTM's Ro-Ro vessels to PILMMI's expanded operations. As a result, both NMU and SIU put PRMMI on notice that each demanded the right under its respective fleetwide bargaining contract to man the transferred Ro-Ro vessels with its unlicensed seamen. Although PRMMI advised NMU and SIU that it intended to file a suit for a declaratory judgment in the Federal district court to resolve their conflicting claims, it withdrew the suit it had subse- quently instituted at its early stage and notified NMU that, as the Ro-Ro vessels arrived in port, the NMU-represented unlicensed seamen aboard those vessels would be dis- charged and replaced by crews supplied by SIU under its bargaining contract with PRMMI. NMU reacted by posting on or about October 3, 1975, picket lines at PRMMI's facilities in the ports of San Juan, Puerto Rico; Elizabeth, New Jersey; and Baltimore, Maryland. Picketing continued until October 12, 1975, when a temporary injunction was issued by the United States District Court for Puerto Rico pursuant to Section 10(1) of the Act. During There is no question, and I find, that Respondent NMU q th e picketing, longshoremen represented by the Interna- and SIU are labor organizations within the meaning of tional Longshoremen's Association honored the picket Section 2(5) of the Act. lines at the ports in Puerto Rico and Baltimore and refused III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction; Issues Presented To place the issues in proper perspective, the following sequence of events is helpful; PRMSA is a public corpora- tion established in June 1974 by the legislature of the Commonwealth of Puerto Rico for the purpose of provid- 6 Roll-on/roll-off and lift-on/lift-of vessels, respectively known in the trade as Ro-Ro and Lo-Lo vessels, are ships which carry preloaded containers A Ro-Ro vessel utilizes special ramps on which the containers are to unload and load PRMMI vessels. Moreover, two trucking firms refused to cross the picket lines at PRMMI's Puerto Rican port facilities to pick up or deliver vans. As indicated above, the picketing at the ports in Puerto Rico and Baltimore is alleged in the Puerto Rico and Baltimore complaints to constitute secondary boycott activity violative of Section 8(bX4)(i) and (u)(B) of the Act and, in addition, to have a recognitional objective directed "rolled on" and "rolled off' the vessel A Lo-Lo vessel requires special cranes and shoreside facilities to "lift on" and "lift off' the containers. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against PRMMI in violation of Section 8(b)(7)(A) of the Act as PRMMI had already lawfully recognized SIU as the representative of the unlicensed seamen on board the transferred Ro-Ro vessels and a question of representation could not be appropriately raised. As for the picketing at the Elizabeth, New Jersey, piers, that activity is only alleged to constitute recognitional picketing prohibited by Section 8(b)(7)(A) of the Act. , The threshhold question to be resolved is whether the Board, in its discretion, should extend PRMSA's statutory exemption as a political subdivision of the Commonwealth of Puerto Rico to PRMMI; decline to assert jurisdiction in these cases ; and dismiss the complaints. The Respondent urges that Board precedent supports such a determination, while the General Counsel, PRMMI, and SIU strenuously argue that Board law favors a contrary view and the assumption of jurisdiction over PRMMI as an employer engaged in commerce within the meaning of the Act. In any event, Respondent's opponents contend that at least both PRMSA and PRMMI are "persons" entitled by the language of Section 8(b)(4)(B) of the Act to the protection that provision affords against secondary boycotts and that, by reason of the Board's plenary jurisdiction, it is empow- ered to decide the related recognitional picketing issue involved in the alleged Section 8(b)(7)(A) violation. Focus- ing our attention on the foregoing critical issues, we turn to the evidence. B. The Evidence 1. PRMSA, an instrumentality of the Commonwealth of Puerto Rico; its purposes PRMSA is a public corporation created by the legislature of Puerto Rico on June 10, 1974,7 for the purpose of developing and maintaining a maritime transportation system principally between Puerto Rico and the mainland of the United States. As noted in the preamble to the act creating PRMSA, the legislature found that the mainte- nance of a maritime transportation system was vital to the economy of the Commonwealth and essential to the health and well-being of its peoples and therefore required "governmental attention to protect the general welfare of the Commonwealth" by assuming "an active role in the directmg and operating responsibility of maritime transpor- tation."9 To accomplish this objective, the preamble further stated that it was the intention of the legislature that the statutorily created "instrumentality" acquire and operate shipping lines and terminal facilities as "a public service." Accordingly, the statute established PRMSA as "corpo- rate and political body constituting a public corporation and governmental instrumentality" with a governing board consisting of seven members appointed by the governor of Puerto Rico with the consent of the senate. Provision was also made for the Board's appointment of an executive director, a secretary, and other officers if deemed necessary. Among other powers vested in PRMSA in order "to carry out and fulfill the purposes and provisions of this act," are the following powers set forth in section 5(h) and (i) of the statute: (h) to make and execute agreements, leases, contracts and other instruments necessary or pertinent to the exercise of the powers and functions of . . . [PRMSA] under this Act, with any person, firm, corporation, Federal agency or with any government or political body and with any of its subdivisions, agencies or instrumentalities; (i) to enter into contracts or other arrangements with any natural or legal person, who is a citizen of the United States, for the management of the operations of any or all the undertakings io subject to the control of . [PRMSA] or for consulting or advisory services related with the operation of such undertakings. Evidently to avert labor relations difficulties which might ensue from PRMSA's contemplated acquisition of proper- ties from shipping companies, Act No. 62 provides: Section 9. Collective Bargaining Agreements. [PRMSA] . . . shall acknowledge and honor collective bargaining agreements in force between maritime shipping companies whose assets it shall acquire and the workers thereof. Likewise it shall acknowledge the different contracting units existing in their respective areas for renegotiating agreements. After PRMSA came into existence, Esteban Davila was appointed the executive director whose functions include the implementation of the decisions and determinations of the governing board. Assisting him was Deputy Executive Director Francisco Ramos Acosta (herein Ramos) who left PRMSA's employ on June 30, 1975. 2. PRMSA's acquisition of shipping facilities and equipment; management services contracts with PRMMI and MTM As contemplated in act No. 62, PRMSA acquired vessels, trailer vans, containers, shore installations, and other facilities from a number of private commercial carriers" which formerly engaged in ocean transportation service between Puerto Rico and the mainland of the United r Act No 62,23 L.P.R A. § 3051, et seq 8 Sec 26 of act No 62 provides that "[t]his act, being necessary for the welfare of the Commonwealth and its inhabitants, shall be liberally construed to fulfill the purposes thereof" 9 According to the testimony of Esteban Davila, the executive director of PRMSA, act No 62 was enacted because of the dissatisfaction of the government of Puerto Rico with the deterioration in the ocean shipping services then being rendered by private carriers which adversely affected the economic development of Puerto Rico 10 Sec 3(c) defines "undertaking" to mean "any property owned, operated, managed, controlled or used by [PRMSA], within and without the geographical boundaries of the Commonwealth in connec- tion with any of its activities, including any system or systems, ships, offices, equipment, supplies . facilities . . . marine terminals within and without the geographical boundaries of the Commonwealth " Sec 11 of act No 62 also provides that "[n ]otwithstanding any other provision of this Act, to the contrary, [PRMSAI...is empowered to enter into contracts, without advertisement for bids, for vessels, operating equipment, maritime terminal facilities and personal or management services which are consistent with prevailing practices in the shipping industry 11 11 These included Sea Land Services , Inc., Seatrain Lines, Inc, and Transamencan Trailer Transport, Inc. NATIONAL MARITIME UNION States. Among PRMSA's acquisitions were eight Lo-Lo and four Ro-Ro vessels,12 the latter vessels being the subject of the labor dispute later discussed. Acting in accordance with its statutory authority, PRMSA on July 1, 1974, entered into a management services contract with PRMMI13 for the operation of PRMSA's eight Lo-Lo vessels.14 Under this arrangement, PRMSA agreed to furnish all the assets necessary for conducting the ocean common carrier service, including the vessels, equipment, terminals, and other facilities. PRMMI, which is designated in the contract as PRMSA's "exclusive agent," in turn agreed to perform such service efficiently and economically "and in accordance with such directions as PRMSA may from time to time" give it. The contract also provides that PRMSA's responsibilities encompassed, with PRMMI's advice, the development and promulgation of policy "governing the operation and utilization of the Facilities in the Service," including "the establishment of rates, charges and regulations governing the Service, determination of frequency and patterns of service and ports of call, and the adoption and funding of programs to replace, renew and expand the Facilities." With respect to PRMMI's responsibilities, the contract states: 5. . . . Except as otherwise provided herein .. . [PRMMI] shall be the sole manager of the Facilities and shall, subject to the policies determined by .. . [PRMSA], be charged with full responsibility for the maintenance, repair, marketing, sales and related sys- tems and operation of the Facilities, and will maintain the Facilities in good operating condition in accordance with normal commercial practices. [PRMMI ] . . . will, for the account of [PRMSA], . . . attend to, supervise and perform all matters and details involving the operation of the Facilities, including the making of contracts on behalf of . . . [PRMSA] for the transpor- tation of goods in accordance with published tariffs in the ordinary course of common carrier business. [PRMMI] . . . shall employ the masters and crews, as well as all other operating personnel, including but not limited to, accounting, billing, stevedoring, chartering, maintenance, repair, and payroll personnel. In so acting ... [PRMMI] will adhere to policies established by ... [PRMSA]. The management contract also grants PRMMI "the sole authority to engage necessary qualified personnel experi- enced in the maritime industry to operate the Facilities in the Service in an efficient and economical manner ... . 12 Five of the Lo-Lo ships were acquired from Sea Land aau three from Seatram. The Ro-Ro ships, the SS Ponce de Leon, SS Eric K Holzer, and SS Fortaleza, were obtained by PRMSA through the acquisition of stock of Transamerican Trailer Transport, Inc (herein T TT) which held bareboat charters on the first two and a time charter on the third one Later in January 1975, PRMSA acquired a bareboat charter for a fourth Ro-Ro ship, the SS Puerto Rico A bareboat charter is a lease of the vessel from the owner without a crew, whereas a time charter is the lease of a vessel complete with crew, fuel, and equipment. 13 A subsidiary of PRMMI, Puerto Rico Marine Operating Company, Inc , is also a party to this contract For the purpose of this case, both companies will be referred to as PRMMI PRMMI , itself, is a private corporation and a wholly owned subsidiary of McLean Industries, which, in turn, is a subsidiary of R J Reynolds Corporation, Inc No PRMMI officers or members of its board of directors are employed by PRMSA in any capacity 25 However, PRMMI agreed "to the extent permitted by law, [to ] exert their best efforts to recruit and train Puerto Rican personnel15 for positions of responsibility," and to refrain from employing personnel who continue to be employed by any other entity in the ocean shipping industry without the written consent of PRMSA. Other provisions in the contract deal with PRMMI's submission of reports to PRMSA concerning the costs of operating the facilities, income produced, and other financial matters and operat- ing needs; PRMMI's preparation and submission of a budget to PRMSA with respect to capital and startup costs and subsequent annual budgets "covering all costs, expen- ditures and anticipated revenues in establishing and operat- mg the Service"; PRMSA's supplying PRMMI with suffi- cient funds required to manage the facilities and operation; PRMMI's responsibility for collecting and depositing revenues for PRMSA's account and for disbursing funds with budget limitations for all costs and expenditures; PRMSA's inspection and audit of PRMMI's records; PRMSA's delegation to PRMMI of the power to enter into contracts binding on the former for "items or services amounting to $50,000 or less for each such item or service"; a complicated formula for computing the management fee to be paid to PRMMI above a minimum; and PRMMI's commitment, without PRMSA's permission, not to engage in any other business or transactions. Finally, the contract prescribes an arbitration procedure for the settlement of disputes arising between PRMSA and PRMMI.16 On November 8, 1974, "to legally validate the appoint- ment of . . . [PRMMI] as . . . agent of" PRMSA, as provided in the management services contract, PRMSA executed a power of attorney pursuant to its statutory authority to appoint an agent to manage and operate ocean common carrier service between Puerto Rico and the United States mainland "as an instrumentality of .. . [PRMSA] in the performance by . . . [PRMSA] of the aforementioned duties." In this document, G. P. Toomey, as president of PRMMI, was designated the attorney-in- fact "to manage designated vessels, equipment, terminals and other assets, facilities and systems owned, leased or chartered by" PRMSA. The document further empowered PRMMI in the name and on behalf of PRMSA to "administer and manage the Facilities both within and without the Commonwealth of Puerto Rico and in general to represent . . . [PRMSA] in all kinds of acts and transactions which may be necessary or convenient in the normal, ordinary conduct of the Service." Consistent with the management services contract, additional authority 14 According to PRMSA' s executive director, Davila, the contract originally contemplated that PRMMI would be the sole managing company. However, because difficulties developed in connection with the acquisition of the Ro-Ro vessels through a TIT stock transaction , PRMSA subsequently entered into a management services contract with MTM, an affiliate of TTT, covering the Ro-Ro vessels 15 The contract defines Puerto Rican personnel as including a citizen of the United States who has resided in Puerto Rico for the past 5 years There is also a clause in the contract recognizing PRMSA's right to review PRMMI's employment contracts with employees whose salary exceeds $35,000 Is For a further detailed account of the parties' management services contract see Puerto Rico Marine Management, Inc v International Longshore- men's Association, AFL-CIO, 398 F Supp. 118, 121-122 (D C P R, 1975) 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vested in PRMMI was acknowledged in the power of attorney. On or about September 26, 074, PRMSA also entered into a management services contract with MTM,17 covering the management and operation of the four Ro-Ro vessels here involved and related facilities. This contract was similar to PRMMI's with one significant provision not contained in the PRMMI document. This clause provided for the establishment of a joint management committee to consider the centralization of such functions as marketing, sales, cargo allocation and booking, billing, accounting, insurance, equipment control and dispatch, and pricing. PRMSA, however, retained the right to "make the final decisions regarding any centralization and combination" and to assign any of these functions "to any agent of ... [PRMSA] or to . . . [PRMSA] itself." 3. PRMMI's operation of the Lo-Lo vessels; its collective-bargaining relationship with SIU and other unions; its employment relations with employees As indicated above, on October 1, 1974, PRMMI took over PRMSA's eight Lo-Lo vessels and commenced its shipping operations, utilizing the latter's terminals and other equipment and facilities in the ports of Puerto Rico and the United States mainland, as provided in the management services contract. Although PRMSA desig- nated the original ocean routes for the vessels, PRMMI, as operations manager, alone determines their sailing sche- dules, time in port, "turnarounds," loading and unloading time allocations, the number of employees to do such work, and the time, necessity, and the companies to perform ship repairs. Among other things, PRMMI handles and adjusts customer complaints. Prior to PRMSA's acquisition of these Lo-Lo vessels, the former owners were parties to successive fleetwide collec- tive-bargaining contracts with SIU covering the unlicensed personnel aboard these ships. When PRMMI assumed management of the vessels, it adopted the terms of SIU's then current contract and continued to recognize that organization as the representative of the unlicensed seamen aboard the ships. Upon the expiration of that contract, PRMMI entered into a new fleetwide contract with SIU for a term from June 16, 1975, to June 1978.18 This was the contract in effect at the time of the subsequent work dispute between NMU and SIU over manning the Ro-Ro vessels giving rise to the unfair labor practices charged herein. PRMMI employs some 2,200 to 2,400 employees in its operations, including the personnel aboard the vessels. It has its own labor relations department headed by Sergio Casaine, Jr., the corporate director of labor relations, who is responsible for all matters pertaining to labor relations in all places where PRMMI does business.19 There are three employees in the labor relations department assisting 17 Another party to the MTM contract is Trans Ocean Transportation Executives Management , Inc., its parent corporation. is Actually, in accordance with industry practice, this contract was negotiated with SIU by a committee of representatives of a multiemployer group known as American Maritime Association of which PRMMI is a member Captain Murray, PRMMI's general manager of marine operations, was a member of the negotiating committee. The recognition clause in this contract (art I, sec. I) reads as follows Casaine who, in turn, reports to PRMMI's president. Through this department, PRMMI has entered into ap- proximately 37 separate collective-bargaining agreements with various unions, including SIU, covering different classifications of employees, either as a result of negotia- tions by PRMMI itself or by multiemployer associations on its behalf. With respect to the unlicensed personnel, with which we are mainly concerned, there is no serious question that it is PRMMI, not PRMSA, which is responsible for and directs its day-to-day labor relations with these employees. Essen- tially, the many terms and conditions of employment governing the unlicensed seamen are embodied in the bargaining contract PRMMI negotiated, through Amen- can Maritime Association, with SIU. PRMMI hires unli- censed seamen through SIU's hiring hall and has the authority to discharge, discipline, promote, and demote them. It directs and supervises seamen in their assigned work and evaluates their work performance. It entertains and adjusts their grievances. It pays them their wages and makes pension and welfare contributions for the benefit of the seamen and withholds money from their earnings for Federal taxes and social security. A similar employer- employee relationship with respect to PRMMI's other employees exists without any participation by PRMSA. 4. MTM's Ro-Ro operations; its bargaining relationship with NMU With PRMMI managing the Lo-Lo operations for PRMSA, MTM at the same time undertook to conduct PRMSA's Ro-Ro operations. The latter vessels, four in number, were manned by unlicensed seamen represented by NMU pursuant to successive collective-bargaining contracts with the prior owner of these vessels dating back to about 1966. When MTM began operating these Ro-Ro vessels, it adopted the then existing 1972 NMU contract, which was due to expire on June 15, 1975, and signed a copy for NMU on December 20, 1974 "as Agent and Employer." The preceding day, NMU sent PRMSA a letter, advising it that NMU was the exclusive bargaining representative "for the unlicensed personnel employed on board vessels now owned by the Commonwealth of Puerto Rico and which were formerly owned by" TTT. The letter also informed PRMSA that before the expiration of the current contract on June 15, 1975, a copy of which was enclosed, it would be notified when negotiations for a new contract would begin. In addition, the letter requested PRMSA to acknowledge the terms and conditions of the present contract to be effective until the execution of a new contract and that the "Commonwealth of Puerto Rico as the owner of the vessels in question agrees to be bound by these terms and conditions." In closing, the letter requested PRMSA to indicate its acceptance of this paragraph by The Company recognizes the Union as the sole and exclusive bargaining representative of all Unlicensed Personnel employed on board Amen- can-flag vessels owned or operated by the Company or its subsidiaries 19 At the time of the hearing, PRMMI operated in seven ports of the United States and Puerto Rico The port managers of six of the United States ports are responsible and report to Casaine, as does the manager of labor relations in Puerto Rico NATIONAL MARITIME UNION 27 countersigning the letter in a space containing the name "Commonwealth of Puerto Rico." Subsequently, the letter was signed by MTM, as agent and employer, and by PRMSA's deputy executive director, Ramos, under the typed name, "Commonwealth of Puerto Rico," with "as owner" inserted by hand. At some undisclosed time PRMSA's executive director, Davila, endorsed on the NMU contract, which MTM had already adopted and signed, the notation that PRMSA "and/or its agents recognize and guarantee this agreement once the company signing it has been acquired." Davila testified that he signed the agreement solely to guarantee MTM's financial obliga- tion thereunder. Negotiations for a new NMU contract to succeed the one expiring on June 15, 1975, were instituted in January 1975. In accordance with industry practice, these negotiations were conducted between NMU and an employer group known as Maritime Service Committee of which neither MTM nor PRMSA was a member. However, historically, nonaffiliated shipping companies would adopt the contract ultimately consummated by those parties. No new agree- ment having yet been reached at this time, MTM and NMU on April 18, 1975, executed a form "Memorandum of Understanding" whereby the then expiring contract was extended to such time as the NMU entered into a "renewal of its Collective Bargaining Agreement with the companies represented by the Maritime Service Committee." The memorandum further provided that MTM agree to execute and be bound by any agreement eventually negotiated by the NMU and the Maritime Service Committee as of the effective date thereof. This document was not signed by PRMSA. Nor am I convinced from my appraisal of the testimony that MTM was directed to sign the memoran- dum by any official of PRMSA,20 although Captain Szolkowski, MTM's senior vice president of operations, who had attended the contract negotiations sessions in April and May 1975, sent copies of his written reports to PRMSA's deputy exeuctive director, Ramos, at the latter's request. In June 1975, NMU and Maritime Service Committee arrived at an agreement. A memorandum of understanding dated June 3, 1975, extending the expiring contract from June 16, 1975, through June, 15, 1978, was thereafter prepared. On June 13, 1975, NMU sent copies of this memorandum of understanding to PRMSA with a request that two copies signed by "an authorized officer of the company" be returned. PRMSA, however, forwarded the letter and contents to MTM with a note, inviting its attention "to attached self-explanatory correspondence," and stating that the matter be "handle[d] accordingly and that a signed copy be "allow[ed ] us ... for our records." On July 14, 1975, MTM transmitted two copies of the memorandum signed by it. 5. The consolidation of the Ro-Ro and Lo-Lo operations; subsequent events On July 24, 1975, PRMSA wrote to MTM that it intended to exercise its right under the parties' management services contract "to centralize in a single management company certain functions" now being performed by PRMMI and MTM and, accordingly, to assign to PRMMI certain of MTM's functions, effective October 1, 1975. The letter further proposed a meeting to discuss the best way to accomplish this objective and to identify new positions at PRMMI which "might be available" to MTM employees who should be given "priority." By letter dated August 26, 1975, PRMSA formally notified PRMMI of its appoint- ment as "sole authorized management company for all shore side operations and related activities." Manifestly, this encompassed the operation of the four Ro-Ro vessels then being run by MTM. Subsequently, PRMSA's executive director, Davila, had several meetings with NMU representatives at which the subject of the retention of NMU-represented unlicensed seamen aboard the Ro-Ro vessels was discussed. At one meeting before September 9, 1975, Davila assured the NMU representatives that the Commonwealth of Puerto Rico would do everything it could to see that no one was hurt in the course of the operational consolidation "as far as possible within the realities and possibilities." At the September 9 meeting, Davila expressed the belief that the NMU seamen would remain employed aboard the Ro-Ro vessels. Davila based this opinion on the fact that he had been led to believe that a voluntary arrangement could be worked out between SIU and NMU to maintain the status quo. However, such an arrangement never materialized for on September 24, 1975, PRMMI sent the following wire to NMU and SIU: This is to inform that PRMMI intends to file an action in Federal Court for a Declaratory Judgment establish- ing the legal rights of the NMU and SIU to crew the four ships to be transferred from MTM on October 1, 1975. PRMMI will take no position on which contract prevails but will ask the Court to maintain a status quo while the determination is being made. NMU promptly responded with the following wire directed to both PRMMI and PRMSA: We have PRMMI's wire advising of an action in Federal Court to determine right of NMU to crew the four ships proposed to be transferred from MTM on 10/1/75. Such action is not necessary and would improperly interfere with NMU's existing legal rights. Under Section 9 of Act 62 of June 10, 1974, PRMSA is obligated to honor existing maritime labor agreement and any renegotiation of such agreements.21 Under decision of U.S. District Court for Puerto Rico in 20 Indeed, in a letter dated April 18, 1975, sent by MTM's president, Collective Bargaining Agreements. The Authority [PRMSA] shall Roberto Lugo, to Deputy Executive Director Ramos, Lugo explained the acknowledge and honor collective bargaining agreements in force reasons for signing the April 18, 1975, memorandum of understanding No between maritime shipping companies whose assets it shall acquire and mention is made of any directions received from PRMSA. the workers thereof. Likewise it shall acknowledge the different 21 Sec. 9 of act No. 62 creating PRMSAprovides• contracting units existing in their respective areas for renegotiating agreements. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PRMMI v. ILA, Local 1575 decided May 20, 1975, the employer of maritime employ ees on PRMSA ships is PRMSA itself. Accordingly, the law is clear that PRMSA and its agents are obligated to honor NMU's contract rights on the four ships. We urge you to honor NMU's contractual rights by acknowledging NMU's contract regardless of whether or not ships are transferred. As you can well understand NMU will take all necessary legal action to protect its rights and the rights of its members. SIU also made a telegraphic claim upon PRMMI to the unlicensed seamen's jobs aboard the Ro-Ro vessels in these words: This is to acknowledge receipt of your telegram notify- ing us that PRMMI intends to file an action in Federal Court for Declaratory Judgment and that PRMMI will take no position as to which contract is applicable to the crew on the four ships to be transferred from MTM on October 1, 1975. Under the collective bargaining agreement between the SIUAAG and your company as well as under applicable law we are the exclusive collective bargaining representative of the unlicensed crew members aboard the vessels owned or operated by PRMMI or its subsidiaries. We shall therefore be prepared to man the above four vessels on October 1, 1975. Your failure to crew these vessels pursuant to our collective bargaining agreement will be a breach of our contract and a violation of applicable law. As it had indicated it would do, PRMMI, on September 30, 1975,22 instituted an action in the United States District Court for the Southern District of New York in which it sought a declaratory judgment as to whether NMU or SIU should represent the unlicensed crewmembers employed aboard the Ro-Ro vessels. In addition, PRMMI sought a temporary restraining order retaining the NMU crews aboard those ships pending the final outcome of the case. On October 1, 1975, the court, sua sponte, ordered the case transferred to the United States District Court for the District of Puerto Rico, without acting on the request for a temporary restraining order. The next day, PRMMI withdrew its action. On October 1, PRMMI assumed management of the Ro- Ro vessels and related facilities and notified NMu that as these vessels arrived in port the NMU-represented crews would be discharged and replaced t y SIU-represented unlicensed seamen pursuant to PRMMI's fleetwide con- tract with the latter organization. The following day termination notices were issued to the NMU-respresented crews on board three of those vessels.23 22 On that and subsequent days , NMU and PRMSA representatives met with the governor of Puerto Rico to find a solution to the work dispute problem but without success 23 The fourth Ro-Ro ship was the SS Fortaleza, which was still under bareboat charter to TTT, an NMU contract company, and its NMU- represented crew remained aboard that ship 6. Picketing at the ports in Puerto Rico, Elizabeth, New Jersey; and Baltimore, Maryland On or about October 2, 1975, in anticipation of the arrival the next day of the Ro-Ro vessel, SS Fortaleza, Respondent NMU briefly picketed in front of the PRMMI-operated dock facilities of PRMSA in Puerto Nuevo, Puerto Rico.24 Upon this ships' scheduled arrival on October 3, NMU established and directed a 75-80 man picket line at the same location. It appears that on this and subsequent days several Lo-Lo vessels and another Ro-Ro vessel tied up at those docks. Without distinguishing between Ro-Ro and Lo-Lo vessels, the pickets carried signs protesting, in Spanish, "PRMSA refuses to negotiate in good faith with National Maritime Union, AFL-CIO," and banners bear- ing the Respondent NMU's name. As a result of the picketing, PRMMI's longshoremen represented by the International Longshoremen's Association, with which PRMMI had a bargaining contract, refused to cross the picket line to load or unload any of the docked vessels. In addition, on October 3, when two truckdnvers employed by Francisco Vega Otero, Inc., drove their trucks up to the gates to PRMMI's Ro-Ro facilities to pick up or deliver vans, they refrained from entering. On this day also, another truck driven by the owner of an independent trucking firm, Daniel Marrero Temon, approached the gate to pick up a van but stopped about 60 feet away when the driver noticed the picket line. At this point, an individual, who had left the picket line, accosted the driver, identified himself as a member of the Respondent, handed him one of the leaflets he was carrying, and stated that if he entered the gate he would do so at his own risk and suffer the consequences. The driver thereupon did not enter the gate. Until the issuance of a restraining order by the United States District Court for the District of Puerto Rico on October 12, PRMMI's operations on these piers were at a complete standstill. At the Baltimore, Maryland, port,25 the following oc- curred: On October 3, 1975, and continuously thereafter until October 12, 1975, NMU established and conducted picket lines at the entrance to the Dundalk Marine Terminal. On October 10 and continuously thereafter until October 12, 1975, NMU established and maintained picket lines at the entrances to the Canton Marine Terminal. Apparently, PRMMI utilized the dock facilities at these locations.26 The signs camed by the pickets stated: Seamen locked out by PRMSA. This dispute against MV Carolina only - Refuses to bargain in good faith with NMU - We have no dispute with any other employer on this site. National Maritime Union, AFL- CIO. Other signs carried by pickets contained the words, "PRMSA and Its Agents," immediately after the words "locked out" and before the words, "This dispute against." 24 PRMSA has its offices in the Banco de Ponce Building in Hato Rey, Puerto Rico, where it employs its own office staff The facts concerning picketing in Puerto Rico relate to Cases 24-CC-195 and 24-CP-51 25 The episodes at this port relate to Cases 5-CC-811 and 5-CP-107 26 The stipulation of the parties in the Baltimore cases does not identify the ownership of the two terminals NATIONAL MARITIME UNION 29 While the picketing was in progress, Longshoremen represented by International Longshoremen's Association, who were referred to the Dundalk Marine Terminal by John T. Clark and Sons, Inc., pursuant to orders placed by PRMMI to perform work connected with the M/V Caroli- na, appeared at the entrance but refused to cross the picket line. This vessel was evidently one of the Lo-Lo vessels which PRMMI operated under its management services contract with PRMSA and was the only PRMMI-operated ship to dock there during the picketing. However, long- shoremen did cross, the picket line and performed work connected with other vessels berthed at this terminal. It also appears that from October 1 - 4, 1975, the SS Puerto Rico, a Ro-Ro vessel, was berthed at the Canton Marine Terminal. Although the NMU-represented crews, who had previously manned that vessel for MTM, were ordered by PRMMI to leave the ship, they refused. However, on October 4 the seamen complied with an order issued by the United States District Court for the District of Maryland in a possessory libel proceeding instituted by PRMMI. At the PRMMI piers in Port Elizabeth, New Jersey, the Respondent established and maintained pickets from on or about October 3 to on or about October 10, 1975.27 During that period two of PRMMI's vessels, not otherwise identi- fied, were docked. The signs carried by the pickets at this location read, as follows: Seamen locked out. PRMSA and its agents refuse to bargain in good faith with NMU - We have no dispute with any other employer on this site. National Maritime Union, AFL-CIO. Since the issuance of a temporary restraining order by the United States District Court for the District of Puerto Rico on October 12, 1975, picketing has ceased at the three ports mentioned above. C. Analysis; Concluding Findings 1. With respect to the Board's jurisdiction It cannot seriously be denied that PRMMI, in the true and literal sense of the word, is engaged in commerce which the Act is designed to protect from interruption caused by the unfair labor practices listed therein, unless the Board lacks jurisdiction because PRMMI is not an employer within the meaning of Section 2(2) of the Act or by reason of the fact that it shares the statutory exemption of PRMSA, a conceded political subdivision. Section 2(2) of 27 This picketing relates to Case 22-CP-243 28 The Board, as a matter of policy, has also excepted from the coverage of the Act the noncommercial activities of educational, charitable, and religious institutions . Office Employees International Union, Local No 11 (Oregon Teamsters) v. N.L R. R, 353 U.S. 313, 318-319 (1957). 29 N L.R B v. The Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600,604-605 (1971). 30.'SIU suggests that the question whether PRMSA itself is a political subdivision is not free from doubt because the Commonwealth of Puerto Rico is. technically not a State-1 find nothing in the Act or legislative history to indicate that Congress intended to subject the Commonwealth or its political subdivisions to the Board's jurisdiction Raymond J Compton v. National Maritime Union of America, AFL-CIO, 533 F.2d 1270 (CA 1, 1976); Puerto Rico Marine Management, Inc v. International Longshoremen's Association; AFL-CIO, 398 F Supp. 118 (1975) the Act defines the term "employer" as including "any person acting as an agent of an employer, directly or indirectly." It specifically excludes, inter alia, "the United States or any wholly owned Government corporation ... or any State or political subdivision _ thereof . , .. ° 28 Noting that the term "political subdivision" is not defined in the Act, the Supreme Court, in N.L.R.B. v. The Natural Gas Utility District,29 cited the Board's interpretation of the political subdivision exemption as limited "to entities that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate." It is undisputed, except possibly by SIU,30 that PRMSA is a political subdivision and thus not a statutory "employ- er" subject to the Act. On the other hand, as will later be discussed, PRMMI possesses the traditional and conven- tional attributes of an employer in its relations with its own employees and hence is an "employer" within the meaning of Section 2(2) of the Act. However, the critical question remains whether, as, the manager and operator of PRMSA's commercial shipping operations, PRMMI should share in PRMSA's governmental exemption, albeit unwillingly- and be viewed as an employer over whom the Board, in the exercise of its discretion, should decline jurisdiction. A study of Board cases does not furnish an easy, ready answer to this question. The Board has extended the jurisdiction exemption of a governmental entity or political subdivision, as well as of other exempt institutions, to a private contractor who furnishes services to the exempt entity where the exempt entity reserves and exercises such substantial control over the services and labor relations of the contractor as to render it impossible for the contractor to bargain effectively with any union concerning wages, hours, and other essential terms and conditions of employment 31 In the Board's opinion, to assert jurisdiction in such a situation where there is not enough authority over labor relations reposed in the contractor to enable him to satisfy the bargaining obligation prescribed in the Act would be a futile gesture and not effectuate any statutory purpose.32 On the other hand, where the exempt entity does not possess decisive authority over the contractor's employ- ment and labor relations policies but the contractor, instead, retains sufficient autonomy and control over his employees' working conditions to make collective bargain- ing an efficacious and realistic process, the Board has followed two approaches in determining whether to assert jurisdiciton over the contractor or to extend to him the 31 The reference to bargaming'capability in this principle is due to the fact that the jurisdiction problem usually-although not always-anses in a union representation context. Consistent with the above principle, the Board has declined to assert jurisdiction in the following cases: Young Women's Christian Association of Metropolitan Chicago, 221 NLRB 262 (1975) (operator of day care centers run for a city), ARA Services, Inc, 221 NLRB 64 (1975) (contractor furnishing automotive fleet maintenance services to a county); Current Construction Corp and Samuel M, Wagner, 209 NLRB 718 (1974) (contractor performing-tree services for city park department); Ohio Inns, Inc., 205 NLRB 528 (1973) (operator of a vacation lodge in a park for a state); see also Rural Fire Protection Company, 216 NLRB 584 (1975). 32 Herbert Harvey, Inc. v. N.L R.R, 424 F.2d 770,774-775 (C.A.D.C., 1969), enfg. 171 NLRB 238 (1968). 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exemption from coverage of the Act enjoyed by the exempt entity. Manifestly, this determination is purely a discretion- ary one for the Board to make. In the early cases-and, indeed, even in more recent ones-the Board resolved the jurisdictional issue on the basis of whether or not a true employer-employee relationship existed between the con- tractor and his workers as to constitute him an "employer" within the statutory definition, regardless of the nature of the relationship between the contractor's services and the governmental entity's functions. Where an employer-em- ployee status was found to exist, jurisdiction was assert- ed; 33 otherwise, the contractor was treated as an entity exempt from the Board's jurisdiction. Relevant to an inquiry regarding the question of employer status under the Act have been such familiar factors as the contractor's right to hire, discharge, discipline, promote, demote, supervise, and direct the employees involved; to fix and pay their wages; and to provide vacations, sick leave, and other fringe benefits.34 Obviously, this list is not exhaustive. Significantly, the cited cases also establish that a finding of statutory employer is not precluded simply because the exempt entity might place upon the contractor budgetary limitations or other controls respecting employee wages and fringe benefits, especially where the contractor per- forms the services on a cost-plus-fee basis. Nor, under these cases, is employer status negated by the fact that some regulatory controls over operations or working conditions might be imposed. In short, the Board has held that a contractor does not become an agent or instrumentality of a governmental entity vested with the latter's exemption from Board jurisdiction so long as the controls and limitations placed upon the contractor are not of the type to frustrate potential collective bargaining. The other approach to determine whether jurisdiction should be asserted is the more recent so-called intimately connected test which, if met, results in the contractor sharing the exemption of the political entity or other exempt institution. Explaining this test, the Board, in the 33 Cosmopolitan Shipping Company, Inc, 2 N LRB 759(1937) (contractor managed and operated vessels owned by the United States in transporting freight between the United States and France for the government and private interests), N LR B v William H Carroll, 120 F 2d 457 (C.A I, 1941) (Government contractor transporting U S mails in interstate commerce), American Hawaiian Steamship Company, 41 NLRB 425 (1942) (company operated vessels requisitioned by Maritime Commission and assigned to Army and Navy for transporting lease-lend materials and troops); Roane- Anderson Company, 71 NLRB 266 (1946) (Government contractor performed for Oak Ridge, Tennessee, townsite and military reservation maintenance and other functions, including fire and police protection, "closely analo- gous" to those performed by municipal corporations), American Smelting and Refining Company (Colorado Plateau Uranium Ore Project), 92 NLRB 1451 (1951) (Government contractor operated uranium ore project for Atomic Energy Commission), Great Southern Chemical Corporation, 96 NLRB 1013 (1951) (Government contractor operated plant for Reconstruc- tion Finance Corporation), Garner Aviation Service Corporation and Lynch- burg Air Transport & Sales Corporation, 101 NLRB 517 (1952) (contractor under contract with Government to operate facility for training aviation cadets), Howard Johnson, Inc of New Jersey and Howard Johnson Company, 135 NLRB 1260 ( 1962), enfd 317 F 2d I (C A 3, 1963), cert denied 375 U.S 920 (contractor operated turnpike restaurants under contract with exempt New Jersey Turnpike Authority), Woods Hole Oceanographic institution, 143 NLRB 568 (1963) (nonprofit marine research organization under contract with government), Yosemite Park and Curry Co, 172 NLRB 1740 (1968) (contractor operated hotels, restaurants, etc, under contract with National Park Service, Department of Interior), Culinary Alliance and Hotel Service Employees Union Local 402 (San Diego Civic Facilities Corporation), 175 oft-cited Herbert Harvey35 case, stated that, with one possible exception, it has: ... uniformly held that the assertion of jurisdiction over a contractor providing services for an institution exempted from the process of the Act is dependent upon the relationship of the services performed to the exempted functions of the institution. Where the services are intimately connected with the exempted operations of the institution, the Board has found that the contractor shares the exemption; on the other hand, where the services are not essential to such operations the Board has found that the contractor is not exempt and asserts jurisdiction over the contractor's activities. By so doing the Board is enabled to strike a balance between the congressional policy of excluding the noncommercial charitable and educational activities of institutions and the policy of the statute to encourage collective bargaining-one of the fundamental purposes of the Act. This test is certainly not a precise one susceptible of mechanical application. Indeed, in one case the Board asserted jurisdiction over the service contractors, "despite the close connection of the [forest firefighting] activities of the . . . [contractors] with the purposes and operations" of the exempt federal and state agencies involved.36 Conse- quently, whether or not the application of this test leads to the assertion of jurisdiction must depend upon the facts and circumstances of the particular case with the view of accommodating the competing policies of the Act pertain- ing to the rights and benefits conferred upon employees on the one hand, ands( the immunity from the Board's junsdic- tion granted governmental and other designated entities on the other. Included among the factors considered in the application of the "intunately connected" test are the nature of the contractor's services with relation to the functions of the exempt entity; whether these activities concern traditional, essential governmental functions as NLRB 161 (1969), (nonprofit corporation performed for city services in nature of those performed by Chamber of Commerce), Marianas Stevedoring & Development Co, Inc, 182 NLRB 1043 (1970) (employer of alien contract workers under contract with US Navy to repair naval vessels at US facilities in Guam), Trans-East Air, Inc, 189 NLRB 185 (1971) (employer operated Bangor Airport under lease agreement with municipality), Sis-Q Flying Service, Inc, 197 NLRB 195 (1972) (employer under contract with Forestry Service of U.S. Department of Commerce and California Division of Forestry to furnish forest firefighting services), Ja-Ce Company, Inc, 205 NLRB 578 (1973) (employer under contract with exempt school district to provide food services in public schools), The Buffalo General Hospital, 218 NLRB 1090 (1975) (nonprofit hospital engaged in providing mental health services pursuant to contract with county), BDM Services Company, 218 NLRB 1181 (1975) (contractor under contract with Army to provide scientific advice in engineering and technical support for the development of Army tactics, organization, and equipment) 34 N L R B v E C Atkins & Company, 331 U.S 398, 403, et seq (1947) and cases cited in fn 33, supra 35 Herbert Harvey, Inc, 171 NLRB 238, 239-240 (1968), on remand enfd. 424 F 2d 770 (C A.D C, 1969) Although the Board accepted the finding of the court of appeals that the contractor and the exempt institution, the World Bank, were joint employers of the former's employees, it concluded that there was no intimate connection between the contractor's maintenance services m the building housing the World Bank and the World Bank's international investment activities and that therefore jurisdiction should be asserted 36 Sis-Q Flying Service, supra at 196 NATIONAL MARITIME UNION 31 distinguished from purely commercial operations; and the degree of control exercised by the exempt entity over the contractor's operations, his labor relations policies, and the working conditions of his employees.37 Of special significance in resolving the jurisdiction issue in this case is the Board's treatment of the nature of the exempt entity's, functions and the contractor's services. In Rural, supra, the Board declined jurisdiction over an employer, who furnished firefighting services to the city of Scottsdale, and permitted him to share in the city's exemption from the coverage of the Act. In so holding, the Board found (at 586) that, not only were these services "intimately related to Scottsdale's municipal purposes," but "[i ]ndeed, more than being a service which is merely intimately related to Scottsdale's municipal functions within the meaning of the cases, the firefighting service herein is itself an essential municipal function which Scottsdale, - instead of performing directly with its own employees, delegated to the. Employer to perform on its behalf, making available its facilities and equipment for that purpose." 35 The limited scope of the Rural holding is indicated in subsequent cases. Thus, in Bishop Randall Hospital, supra, the Board refused to apply the Rural holding and, extend the State's exemption to the lease-operator of a county memorial hospital on the ground that there was "no intimate connection" between the services provided by the lessee and "the allegedly exempt operations of the Hospi- tal." Noting that "the operation of a hospital is [not] necessarily a `governmental function,' " even though the state law characterized it as such, the Board found that the lessee operated the hospital as "an essentially private venture with insufficient identity with or relationship'to the State . . . to support the conclusion that the Hospital is an exempt governmental employer under-the Act." In W. F. Lane, supra, the Board also found the Rural decision inapplicable and asserted jurisdiction over the employer who transported alcoholic beverages for the State's exempt regulatory agency. The Board held that the contractor's services were not so intimately connected with the State's exempted operations as to warrant granting the State's 2(2) exemption to Lane, distinguishing this case from Rural on the-ground that the "State's control of intoxicating liquors is [not] a function comparable to the firefighting service in the Rural case which is a universally recognized govern- mental function." 39 37 Crotty Brothers, N Y., Inc, 146 NLRB 755 (1964); The Prophet Co, 150 NLRB 1559 (1965); The Horn & Hardart Company, 154 NLRB 1368 (1965), Bay Ran Maintenance Corporation of New York, 161 NLRB 820 (1966); Sis- Q, supra, Slater Corporation, 197 NLRB 1282 (1972); Massachusetts Society for Prevention of Cruelty to Animals, 203 NLRB 98 (1973); Ja-Ce Company, Inc., supra, Rural Fire Protection Company, 216 NLRB 584 (1975); Toledo District Nurse Association, 216 NLRB 743 (1975); Bishop Randall Hospital, 217 N LRB 1129(1975); W.F. Lane & Associates, Inc., 218 NLRB 391 (1975); BDM Services Company, 218 NLRB 1181 (1975); Mental Health Services- Erie County South East Corp. V, 220 N LRB 96 (1975); Transit Systems, Inc., 221 NLRB 299 (1975); Grey Nuns of the Sacred Heart, 221 NLRB 1215 (1975); Children's Hospital of Pittsburgh, 222 NLRB 588 (1976); Highview, Incorporated, 223 NLRB 646 (1976). 38 Compare Sis-Q, supra, where the Board found insufficient reason to withhold jurisdiction over contractors who furnished forest firefighting services to Federal and state agencies whose functions encompassed such services. Subsequently, in Grey Nuns, supra, the Board accepted jurisdiction over a nonprofit corporation operating a borough hospital serving Alaskans, welfare recipients, and other residents because there was no such intimate connec- tion "with the municipal functions of the local government" to warrant the operator's sharing the latter's exemption. In reaching that conclusion, the Board said (221 NLRB at 1216): The instant case therefore places before us the question of whether or not for purposes of our jurisdiction the provision of health care is a service essential- to the operation of a local government. In accord with the recently issued decision in: Bishop Randall Hospital, we find that the operation of a hospital is not necessarily so .basic or traditional a municipal function as to warrant our declining to assert jurisdiction. We note especially that the existence of municipalities whose health care needs are serviced by other than local government hospitals is in no sense rare; however, the existence of municipali- ties whose fire and police protection is exclusively provided by private contractors is indisputedly the exception rather than the rule . . . . Finally, we observe that governments in varying degrees often engage in activities paralleled by employers in the private sector. However, we are unwilling to find that a government's mere participation in an activity per se constitutes a basis for concluding such activity to be an essential government function. The scope of Rural Fire Protection is clearly not so broad as to dictate this result and accordingly we find it does not control the instant case. [Emphasis supplied.]40 Apparently consistent with these decisions, the Board, in Transit Systems, supra, followed Rural and permitted the operator and manager of a mass transit bus system under contract with the Transit Commission, which had been mandated by the state legislature to run a transportation system in three cities,, to share in the latter's exemption from coverage of the Act. It-is reasonable to infer that the Board, in reaching its conclusion, viewed the mass urban transit system as a commonly recognized essential municipal or governmental function.4i Respondent contends that the Board should decline jurisdiction in this case and dismiss the complaints on the ground that PRMMI shares the political exemption of PRMSA on two theories-one, PRMSA exercises such 39 As an additional ground for exercismgjunsdtction, the Board in W F. Lane noted that the contractor performed only the transportation phase of the State's control over intoxicating liquor, whereas in Ruralthe contractor performed "the very municipal function involved." However, see such cases as Crotty and others, cited in fn. 37, supra, where the Board granted exemption to services constituting a minor aspect of the exempt institutions' functions and purposes. 40 A similar lack of intimate connection was found by the Board in Mental Health Services, supra, where the Board also assertedjurisdiction over a nonprofit corporation performing mental health services under a contract with a county and found no justification for extending the county's exempt status to the contractor. To the same effect, see Highview, supra 41 Compare Trans-East Air, Inc; 189 NLRB 185 (1971), where the Board asserted jurisdiction over the operator of the Bangor International Airport under contract with the city which owned the airport and found that the contractor was not "a governmental instrumentality" entitled to the exemption set forth in Sec. 2(2) of the Act. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD control over PRMMI's operations and labor relations policies as to render it impossible for PRMMI to engage in effective collective bargaining with a labor organization concerning wages and other working conditions ; and, two, PRMMI's services performed for PRMSA are intimately connected with and, indeed, are the very exempted func- tions PRMSA was mandated to perform by the legislature of Puerto Rico. Therefore, Respondent concludes, PRMMI is not an employer subject to the coverage of the Act. The General Counsel, PRMMI, and SIU, on the other hand, argue that NMU's position is sustained neither by the facts nor the law as to deprive PRMMI or its employees of statutory protection . While I believe that the jurisdictional question based on the tests discussed above is not entirely free from doubt, I fmd that, all things being considered, it would effectuate the purposes of the Act to assert jurisdic- tion herein. As shown above, it is undisputed that PRMMI has complete control over its day-to-day labor relations and dealings with its more than 2,000 employees, including the unlicensed seamen aboard its vessels, who are the subject of this proceeding. It is PRMMI, not PRMSA, who hires, discharges, disciplines, promotes, and demotes the unli- censed seamen. PRMMI directs and supervises the seamen in their assigned tasks and evaluates their work perfor- mance. It pays them their wages and makes pension and welfare contributions on their behalf as required by its collective-bargaining contract with SIU. Moreover, PRMMI withholds from their earnings Federal taxes and social security payments and entertains and adjusts griev- ances the seamen might have. PRMMI also exercises similar authority over its other employees. To handle its labor relations matters, PRMMI maintains its own labor relations department entirely independent of PRMSA, which is entrusted with the duty of negotiating and administering some 37 collective-bargaining agreements with different labor organizations . As for PRMMI's opera- tional functions, it°alone determines sailing schedules of the vessels it manages; their time in port, "turnarounds," loading and unloading time allocations, the number of employees to do such work, and the time, necessity, and the company to perform ship repairs. In these circumstances, there is no substantial-much less overwhelming-basis in the evidence for Respondent's assertion that PRMSA's control over PRMMI's operations and labor relations is so extensive as to preclude PRMMI from participating in meaningful collective-bargaining concerning wages, hours, and other working conditions. Rather, the foregoing evidence establishes quite the con- trary and reveals a fertile field and opportunity for effective collective bargaining which the 37 collective -bargaining contracts PRMMI has already consummated well demon- strate. Respondent, nevertheless, alludes, among other things, to the fact that the ultimate responsibility for maintaining the maritime transportation system for Puerto Rico is vested in PRMSA by the Puerto Rican legislature, although the enabling statute empowers PRMSA to contract out the 42 See cases cited in fn. 33, supra, where the Board asserted jurisdiction over contractors, although the governmental or other exempt entity exercised a greater measure of control over the contractor's labor relations policies and employment conditions. management of the system; that PRMSA makes operating policy decisions, including those relating to budgetary and financial matters, affecting the transportation system on the basis of information and recommendations received from PRMMI and previously from MTM , too; that PRMSA has received reports from PRMMI and MTM regarding collective-bargaining negotiations ; that PRMSA has been kept 'informed of anticipated or actual work stoppages with the view of avoiding and ending them; that it has expressed its position to PRMMI and MTM regarding the impact on the budget and operations of the transportation system of wage and other monetary demands made in the course of contract negotiations or other discussions in which PRMMI and MTM have been engaged with unions; and that PRMSA once guaranteed MTM's financial obligation under its first contract with NMU. However, these matters, at best, reflect PRMSA's vital concern and responsibility in seeing that a viable and successful transportation service for the Commonwelath of Puerto Rico is maintained and that the costs for such service is kept within budgetary and reasonable limits. I am unable to perceive how PRMSA's functional responsibilities or its imposition of budgetary limitations on the operation of the transportation system will inescapably frustrate the collective -bargaining process envisaged by the Act, as Respondent asserts.42 In sum, I find that PRMMI is an employer within the meaning of Section 2(2) of the Act and possesses sufficient control over its labor relations policies and employment conditions to enable it to satisfy its statutory bargaining obligation should the occasion arise. This brings us to the next question whether, notwithstanding PRMMI's statutory employer status, jurisdiction should be declined, as Re- spondent also argues , because of the "intimate connection" between PRMMI's services and PRMSA's functions. It is Respondent's position that PRMMI, as PRMSA's designated agent to manage and operate the ocean trans- portation system, should share in PRMSA 's political exemption because it is performing the mandated function for which PRMSA was created. In support of its conten- tion, Respondent relies on the Board's decisions in Rural and' Transit Systems43 which it reads as holding that a finding of "intimate connection" is warranted where the services performed by a private contractor is essential to the purposes for which the exempted governmental entity exists and that, therefore, the latter's exemption attaches to the private contractor. Since PRMMI's services are essential to PRMSA's functions which, in turn, are designed to advance the economy of the Commonwealth and the health and welfare of its people, Respondent urges that jurisdiction should be withheld in this case , even though PRMMI initiated these proceedings. As ' indictaed above, I do not subscribe to Respondent's interpretation of the cited cases and find that the decisions in those cases, with the gloss supplied by the decisions in 43 Rural Fire Protection Company, 216 NLRB 584 (1975); Transit Systems, Inc., 221 NLRB 299 (1975). 1 NATIONAL MARITIME UNION 33 Bishop Randall Hospital, W. F. Lane, Grey Nuns, and Highview,94 stand for the proposition that the significant, if not controlling factor, in determining "intimate connec- tion" which justifies sharing the governmental exemption is the nature of the function involved; namely, whether it is universally recognized as an essential, traditional, munici- pal or governmental function. In the present case, I find that, unlike the universally recognized traditional munici- pal functions in Rural and Transit Systems, PRMSA's marine transportation operation constitutes a purely com- mercial enterprise "paralleled by employers in the private sector" 45 and not a universally recognized, essential and traditional governmental function. The fact that the cre- ation of PRMSA was intended to benefit the economy of the Commonwealth and the health and welfare of its people-surely matters of legitimate legislative concern- does not detract from the commercial character of the cargo transportation system in question. Considering the commercial nature of PRMSA's ocean transportation operation, the great scope and direct impact this operation has on interstate commerce, and the substan- tial control exercised by PRMMI, as a statutory employer, over its labor relations policies and employment condi- tions; and balancing the rights and protection the Act makes available to the employees and employers against the jurisdictional exemption the Act provides, I find that the purposes of the Act to eliminate disruptions in com- merce would best be accomplished by assuming jurisdiction in this case. Regardless of the question of PRMMI's exempt or employer status, the General Counsel, PRMMI, and SIU argue that PRMMI is at least a "person" within the meaning of Section 2(1) of the Act46 entitled to the protection against secondary activity proscribed in Section 8(b)(4) of the Act and that therefore the Board has jurisdiction to adjudicate the unfair labor practices alleged thereunder. That provision prohibits, inter alia, inducement or encouragement of "any individual employed by any person engaged in commerce"47 or threats, coercion or restraint of "any person engaged in commerce" with an object of "(B) forcing or requiring any person to cease .. . handling, transporting . . . products . . . or to cease doing business with any other person ...." I find merit in this contention. As it is conceded that PRMMI, as well as PRMSA, are "persons" engaged in commerce within the meaning of the Act, I find that it will effectuate the policies 44 Bishop Randall Hospital, 217 NLRB 1129 (1975), W. F Lane Associ- ates, Inc, 218 NLRB 391,(1975), Grey Nuns of the Sacred Heart, 221 NLRB 1215 (1975), and Highview, Incorporated, 223 NLRB 646 (1976) 45 Grey Nuns, supra 46 Sec . 2(I) of the Act defines a "person" as "one or more individuals, labor organizations , partnerships, associations, corporations, legal represen- tatives, trustees, trustees in bankruptcy, or receivers " 47 Originally, the Act used the term "employer" in this portion of Sec 8(bX4) which the 1959 amendments subsequently changed to "person " As the Court of Appeals for the First Circuit explained in N.LR B v Local 254, Building Service Employees International Union, 376 F 2d 131, 135 (C.A 1, 1967), cert denied 389 U S 856 One purpose of the 1959 amendments to section 8(b)(4), which substituted the language "any person engaged in commerce " for "any employer," was to bring within the coverage of the section activities against entities such as railroads and governmental units , which are of the Act at least to assert jurisdiction with respect to the 8(b)(4) allegations 48 A more difficult problem is presented, however, with respect to asserting jurisdiction to adjudicate the allegations of the complaints pertaining to the 8(b)(7)(A) violations, if PRMMI is found to be an exempt employer. The General Counsel, PRMMI, and SIU urge that, if jurisdiction is asserted over the 8(b)(4)(B) violations on the ground that PRMMI and PRMSA are "persons" thereunder, the Board, in the interest of providing a full and complete remedy, should, in its discretion, also accept jurisdiction to decide the 8(b)(7)(A) violation. They urge the reasonableness of this position in view of the fact that the picketing and the underlying labor dispute are essentially the same with respect to both alleged violations, although Section 8(b)(7)(A) prohibits recognitional picketing of "any em- ployer" where "the employer" has recognized another labor organization and no question of representation may be appropriately raised. Clearly, a critical element in an 8(b)(7)(A) finding is that the object of the picketing is a statutory "employer." Since, by hypotheses, PRMMI is an exempt, rather than a statutory employer, I find no tenable basis for the Board to assert jurisdiction over PRMMI with respect to the 8(b)(7)(A) allegations on the theory advanced by the General Counsel, PRMMI, and SIU 49 We now consider the merits of the alleged unfair labor practices. 2. With respect to the alleged 8(b)4(B) violations The Puerto Rico Case (Case 24--CC-195) Without repeating the details, it is clear that Respondent NMU initiated the picketing at the entrance to PRMSA's port facilities in Puerto Rico, occupied by PRMMI in its managerial capacity, in protest to PRMSA's implementa- tion of its decision to consolidate its ocean transportation operations by transferring to PRMMI the four Ro-Ro vessels then manned by unlicensed seamen represented by NMU pursuant to its fleetwide collective-bargaining con- tract with MTM, the prior operator of those vessels. Moreover, it is undisputed that the picketing was conduct- ed in further protest of PRMMI's termination of these seamen and their replacement by crews represented by SIU under the latter's fleetwide contract with PRMMI. As a result of the picketing, PRMMI's operations were shut down when PRMMI's longshoremen refused to cross the picket lines to unload and load the Ro-Ro and Lo-Lo specifically excluded from the act's definition of "employer " See, e g, S Rep No 187, 86th Cong, I st Sess (1959) at 80, in I Legislative History of the LM RDA 397, at 476 48 N LR B v Local 254, supra, New York District Council No 9, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, (Strip Clean Floor Refinishing & Painting Corp), 185 NLRB 293, 294 (1970), enfd 79 LRRM 2703 (C.A 2), cert. denied 405 U S 488 (1972), Local No 16, International Longshoremen and Warehousemen's Union (City ofJuneau), 176 NLRB 889 (1969). In any event , as will later be discussed, employees of statutory employers were affected by the alleged unlawful picketing. 49 Marie T Reilly d/b/a Reilly Cartage Company, 110 NLRB 1742 (1954), and Commission House Drivers, Helpers, and Employees Local No 400, (Bondi's Mother Hubbard Market), 118 NLRB 130 (1957), relied on by these parties, are inapplicable to the situation presented in the instant case The cited decisions concerned situations where not all the individuals involved in the underlying labor dispute or unfair labor practices met the Board's monetary jurisdictional standards 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vessels which had arrived in port and the two truckdrivers of Francisco Vega Otero, a trucking firm, and the owner- driver of another trucking company, Daniel Marrero Tenon, refused to enter the premises to pick up or deliver vans. The General Counsel's theory of the alleged 8(b)(4)(B) violation, embodied in the complaint in the Puerto Rico case, which is supported by PRMMI and SIU, is that NMU, in support of its labor dispute with PRMSA concerning the operational transfer of the Ro-Ro vessels with the consequent replacement of the NMU-represented unlicensed seamen by SIU-represented crews, established and maintained picket lines at PRMMI'S facilities with an object of forcing PRMMI, a neutral employer or person, to cease doing business with PRMSA, the primary person.50 However, the General Counsel, PRMMI, and SiU also acknowledge and, indeed, the complaint alleges, that NMU was simultaneously involved in a primary labor dispute with PRMMI, whom it also picketed for recognition allegedly in violation of Section 8(b)(7)(A), as will be separately discussed later. While there is no question that the picketing constitutes inducement and encouragement and restraint and coercion within the meaning of subsec- tions (i) and (ii) of Section 8(b)(4), Respondent contends that Section 8(b)(4)(B) was nevertheless not violated since the picketing was primary in nature and protected by the proviso to that section which reads "[t]hat nothing con- tained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." I find merit in Respondent's contention. Discussing the reach of Section 8(b)(4)(B) of the Act, the Supreme Court observed: 51 Congressional concern over the involvement of third parties in labor disputes not their own prompted § 8(b)(4)(B). This concern was focused on the "secondary boycott," which was conceived of as pressure brought to bear, not "upon the employer who alone is a party [to a dispute], but upon some third party who has no concern in it" with the objective of forcing the third party to bring pressure on the employer to agree to the union's demands. Section 8(b)(4)(B) is, however, the product of legisla- tive compromise and also reflects a concern with protecting labor organizations' right to exert legitimate pressure aimed at the employer with whom there is a primary dispute. This primary activity is protected even though it may seriously affect neutral third parties ao Oddly enough, as will subsequently be discussed, the complaint in the Baltimore case (Case 5-CC-81 l) alleges that PRMSA, among others, was a neutral whom NMU picketed in support of its dispute with PRMMI, the primary employer. No 8(bX4XB) violation is, however, alleged in the Newark case. 51 N L R.B v. Local 825, International Union of Operating Engineers, AFL-CIO [Burns and Roe, Inc J, 400 U.S 297, 302-303 (1971). 52 For this reason, N.LR.B v. Local 825, supra, and other cases cited by the General Counsel, PRMMI , and SIU are plainly distinguishable 53 Douds v Metropolitan Federation of Architects, Engineers, Chemists & Viewing the facts in the present case in light of the underlying purpose of Section 8(b)(4), I am led to the inescapable conclusion that Respondent's picketing was not aimed at forcing a neutral third party unconcerned in the labor dispute here in question to bring pressure upon PRMSA or PRMMI to yield to Respondent's demands. As indicated above, both PRMMI and PRMSA were directly involved in a labor dispute over PRMSA's operational transfer of the Ro-Ro vessels to PRMMI and PRMMI's consequent discharge of the NMU-represented unlicensed seamen aboard those ships and their replacement by SIU- represented crews. Manifestly, Respondent's picketing was directed simultaneously at PRMMI and PRMSA with the objective of securing the retention of the NMU seamen aboard the Ro-Ro vessels in accordance with NMU's collective-bargaining contract with MTM. Such activity certainly cannot be regarded as secondary action intended to enmesh neutral strangers to a labor dispute as to subject NMU's picketing to the sanctions of Section 8(b)(4)(B), whatever other statutory provisions might be violated. Otherwise stated, I find that PRMMI, like PRMSA, was a primary employer immediately involved in a labor dispute with NMU and therefore was not in the class of uncon- cerned "persons" or "employers" whom Section 8(b)(4)(B) of the Act was designed to protect.52 Moreover, also militating against an 8(b)(4)(B) finding is the fact that the picketing occurred at the entrance to PRMSA's port facilities in Puerto Rico which PRMMI occupied as PRMSA's manager of its transportation operations under its management services contract and where PRMSA's vessels operated by PRMMI docked and were unloaded and loaded. This was the situs of NMU's dispute with both parties and was obviously the most effective location to publicize its complamt against them. Thus, in picketing at this location, NMU "was not extending its activity to a front remote from the immediate dispute but to one intimately and indeed inextricably united to it," 53 thereby demonstrating the primary nature of its activity.54 It follows from the foregoing that NMU's picketing of PRMMI at its Peurto Rican port facilities did not constitute secondary boycott activity proscribed by Section 8(b)(4)(B) of the Act but instead was primary activity expressly protected by the proviso to that section. For this reason, I reject the further contention of the General Counsel, PRMMI, and SIU that, since the picketing caused PRMMI's longshoremen to refuse to handle cargo from the one Ro-Ro vessel then in port, as well as from the docked Lo-Lo ships, and since the drivers of trucks of independent trucking firms refused to cross the picket lines to enter PRMMI's premises to pick up or make deliveries of vans, neutrals became unnecessarily enmeshed in a dispute not of their concern and that the picketing thereby violated Technicians, Local 231, 75 F Supp 672, 677 (D C S D N Y , 1948), a case concerned with the so-called "ally doctrine" not applicable here. 54 Cf. United Steelworkers of America, AFL-CIO, and Local 6991, United Steelworkers of America, AFL-CIO (Auburndale Freezer Corporation), 177 NLRB 791 (1969) Unlike Los Angeles Building & Construction Trades Council, AFL-CIO (Silver View Associates), 216 NLRB 307 (1975), relied on by the General Counsel for a contrary result, the picketing in the case at bar occurred at the very location of the operations of the primary employer, PRMMI NATIONAL MARITIME UNION Section 8(bX4)(B). Particularly apropos is the following observation of the Supreme Court in the United Steelwork- ers case: 55 The primary strike, which is protected by the proviso, is aimed at applying economic pressure by halting the day-to-day operations of the struck employer. But Congress not only preserved the right to strike; it also saved "primary picketing" from the secondary ban. Picketing has traditionally been a major weapon to implement the goals of a strike and has characteristical- ly been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt. In light of this traditional goal of primary pressures we think Congress intended to preserve the right to picket during a strike a gate reserved for employees of neutral delivery men furnishing day-to-day service essential to the plant's regular operations. As some disruption of business relationships is normally to be anticipated from primary activity otherwise permissible under Section 8(b)(4XB) of the Act, it cannot very well be used as a basis for finding a violation thereunder.as Accordingly, the 8(b)(4)(B) allegations in Case 24-CC- 195 will be dismissed. The Baltimore Case (Case 5-CC-81 1) Unlike the designation in the Puerto Rico complaint of PRMSA as the primary entity and PRMMI as the neutral secondary employer, the complaint in the Baltimore case alleges that NMU, in furtherance of its dispute with PRMMI, picketed at the port of Baltimore at the entrances to the Dundalk Marine Terminal and the Canton Marine Terminal with "picket signs which failed to disclose that Respondent had a labor dispute with PRMMI" with an object of forcing neutrals, PRMSA, Clark, and other persons to cease doing business with PRMMI, the primary employer.-57 As previously shown, at the time of the picketing at the Dundalk Marine Terminal utilized by PRMMI, , a Lo-Lo vessel, MV Carolina, operated by PRMMI under its management services contract with PRMSA, was berthed there. Longshoremen, who were assigned by Clark pursuant to orders placed with that company by PRMMI, to work that ship, refused to cross the picket line to perform their assignment, although longshoremen worked on other vessels owned and operated by other companies. The stipulation of the parties does not mention a similar refusal to perform services on the Ro-Ro vessel, SS Puerto Rico, which was apparently berthed at the Canton Marine Terminal where picketing also had taken place. Some of the signs carried by the. pickets at both 55 United Steelworkers of America, AFL-CIO [Carrier Corporation] v. NLRB., 376 U.S. 492, 499 (1964). To the same effect, Dover Corporation, Norris Division, 211 NLRB 955, 957 (1974) 56 Cf. NLRB. v. Local 825, International Union of Operating Engineers, AFL-CIO, 400 U S. 297,304 (1971). 57 The complaint ,m the Newark case does not contain an 8(bx4)(B) allegation. 56 I do not believe that Sailor's Union of the Paci fc, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950), on which the 8(bX4)(B) violation seems to be founded, requires a contrary result. 35 terminals indicated that the NMU seamen were locked out by "PRMSA," while others stated it was "PRMSA and its Agents" who had done so. All the signs, however, an- nounced that "We have no dispute with any other employer at this site." I find that the picketing at the Baltimore port was essentially no different from that conducted at the Puerto Rico port with respect to the alleged 8(b)(4)(B) violation to warrant a contrary determination. In both cases, the picketing was directed against PRMMI and PRMSA as primary disputants at appropriate locations where PRMMI has facilities for docking, loading, and unloading vessels it operates for PRMSA under its management services contract with PRMSA. Moreover, at the Baltimore port, the picketing did not cause any interference with the operations of unconcerned neutral parties whom the sanctions of Section 8(b)(4)(B) were designed to protect. The only employer whose operations were affected by the picketing was Clark whose employees refused to cross the picket line to service the MV Carolina belonging to PRMSA and operated by PRMMI. However, as found in the Puerto Rico case above, this is a type of disruption of business normally to be expected at the primary situs of a labor dispute which Section 8(b)(4)(B) of the Act does not proscribe. Accordingly, the allegations of the complaint in Case 5- CC-811 relating to a violation of Section 8(b)(4)(B) of the Act will be dismissed.58 3. With respect to the alleged 8(b)(7)(A) violation The Puerto Rico Case (Case 24-CP-51) Section 8(bX7)(A) of the Act prohibits an uncertified labor organization from picketing an employer with an object of forcing the employer to recognize or bargain with it as the representative of his employees where the employer has lawfully recognized another labor organization as the representative of these employees-and a question concern- ing representation may not appropriately be raised under Section 9(c) of the Act at the time of the picketing. The` burden of proving these facts rests on the General Coun- sel.59 It is uncontroverted that when PRMSA announced the transfer to PRMMI of the four Ro-Ro vessels, as part of PRMSA's consolidation program, the Respondent NMU, admittedly the uncertified representative of the unlicensed seamen then manning those vessels pursuant to its contract with MTM, demanded that PRMMI honor this contract, retain the NMU-represented seamen and continue to recognize it as their representative 60 It is equally clear that when PRMMI responded negatively and, instead, terminat- ed the NMU-represented crews and replaced them with 59 See, for example, NLRB. v. Local 3, International Brotherhood of Electrical Workers, AFL-CIO [Darby Electric Corp.], 362 F.2d 232, 234 (C.A. 2, 1966), enfg. 153 NLRB 717; International Longshoremen's and Warehousemen's Union Local No. 8 (Waterway Terminals Company), 193 NLRB 477, 485 (1971), enfd.473 F.2d 15(C-A.9,1973). 60 In the stipulation of the parties in Cases 5-CC-811 and 5-CP-107 and in Case 22-CP-243, Respondent acknowledges that it has demanded recognition as the collective-bargaining representative of the unlicensed personnel employed by PRMMI aboard the transferred Ro-Ro vessels. 36 DECISIONS OF NATIONAL; LABOR RELATIONS BOARD SIU-represented unlicensed seamen in accordance with PRMMI's fleetwide contract with SIU, NMU reacted by picketing PRMMI's port facilities in Puerto Rico. Manifest- ly, an object of this activity was to secure continued recognition as the representative of the unlicensed seamen aboard the Ro-Ro vessels as Shannon Wall, NMU's president, admitted in his testimony; indeed, no contention is made to the contrary. The sole issues, therefore, remain- ing to be resolved-and they are critical ones-are the lawfulness of PRMMI's recognition of SIU as the represen- tative of Ro-Ro vessels' unlicensed seamen and whether their contract barred a representation question from being raised at the time of the picketing. It is the position of the General Counsel, PRMMI, and SIU that, under well-settled Board principles applicable to the maritime industry, PRMSA's transfer of its Ro-Ro vessels to PRMMI resulted in an accretion to PRMMI's fleet of Lo-Lo vessels it was operating under its manage- ment services contract and thereby were covered by the SIU-PRMMI collective-bargaining contract in effect at that time, entitling SIU to recognition as the representative of the unlicensed seamen manning the Ro-Ro ships. They further argue that the SIU-PRMMI bargaining contract would have foreclosed any representation question from being raised had NMU filed a representation petition with the Board. The NMU, on the other hand, maintains, in substance, that, since the transfer to PRMMI did not involve a change in ownership of the Ro-Ro vessels, the fleetwide-accretion doctrine is inapplicable to this case, no accretion resulted, and the SIU's recognition as representa- tive of the unlicensed crews aboard the Ro-Ro ships was unlawful 61 Therefore, it urges, its picketing in support of its rightful demands for_ recognition and retention of its unlicensed seamen aboard the Ro-Ro vessels was permissi- ble.62 The fleetwide-accretion doctrine had its genesis in Moore- McCormack Lines, Inc.;63 where the Board stated: As a general proposition we agree with the Petition- er's contention that units of seagoing personnel should be fleetwide in scope. Thus, as the record shows in the instant case, the Company bargains for a fleetwide unit on the Pacific coast, and, with the exception of the seven former Robin ships, it bargains for a fleetwide unit on the Atlantic and gulf coasts. Such units also conform to the pattern presently prevailing in the 61 Although NMU did not file an unfair labor practice charge alleging a violation of Sec. 8(a)(2) of the Act, no valid reason was shown why the issue of the lawfulness of SIU's recognition was not litigable Cf International Hod Careers' Building & Common Laborers' Union ofAmencq Local 1298, AFL- CIO (Roman Stone Construction Company), 153 NLRB 659, fn. 3 (1965), where the Board held that in an 8(b)(7)(A) case the validity of a union's representative status may not be collaterally challenged if the status were immune from attack in another proceeding under Secs. 8 or 9 of the Act. Such a contention is not advanced here. 62 There is no question that the htigability of these 8(b)(7)(A) allegations is not precluded by the pending 10(k) proceedings relating to the work jurisdictional dispute here involved 63 139 NLRB 796, 798-799 (1962), where the petitioning union, NMU, sought a fleetwide unit of all unlicensed seamen employed by the employer on its vessels operating out of Atlantic and Gulf coast ports The proposed unit would have included those seamen on vessels represented by NMU on a less-than-fleetwide basis and the seamen in a multiship unit represented by SIU. Because of special circumstances presented in that case, particularly the Board's previously ordered single ship self-determination elections with maritime industry. Moreover, there are obvious advan- tages in such a single unit: the elimination of interunion rivalry with respect to similar employees of the same employer and a consequent diminution of conflicts which may bung on work stoppages, and the facilitation of transfers of personnel between ships of the same employer and of ships between different shipowners. But these reasons for finding a fleetwide unit appropri- ate may be overborne in a particular case by special circumstances which indicate the injustice or the unsuitability of applying the general rule. Because of the special circumstances present in the cited case, the Board found the proposed fleetwide unit inappro- priate; adding (799-800): A caveat, however, is in order. The present decision is not to be construed as indicating that in the future the transfer of a ship from one owner to another will necessarily preserve the existing bargaining unit or the status of the incumbent union. The present decision rests on the special facts of this case. It is not a precedent for situations which may be entirely different. [Emphasis supplied.] Taking the italicized language of the Moore-McCormack "caveat" literally, Respondent fords support for its argu- ment that the transfer to PRMMI of management, as distinguished from ownership, of the Ro-Ro vessels did not create an accretion to SIU's bargaining unit justifying PRMMI's recognition of that organization. However, it does not appear to me that the Board, in using the language in question, deliberately intended to limit the applicability of the fleetwide-accretion doctrine only to situations where a change of vessel ownership occurs. In my opinion, the reasons underlying that principle and the purposes that principle were designed to serve are equally relevant to the situation here presented where management of the vessels was transferred from one independent contractor, MTM, to another, PRMMI, who, as previously discussed, possessed under its management services contract with PRMSA effective day-to-day control over its operations, employ- ment conditions, and labor relations policies regarding PRMMI's employees.64 For this reason, I find the fleet- wide-accretion doctrine applicable to the transfer of the Ro-Ro vessels and that PRMMI accordingly lawfully respect to the ships in SIU's unit and the subsequent 5-year dual bargaining history, the Board refused to find the proposed fleetwide unit appropriate. 64 Cf. National Maritime Union of America, AFL-CIO (Overseas Carriers Corporation), 174 NLRB 216 (1969), where the Board applied the Moore- McCormack principle and found that there had been a transfer of ownership of vessels from Luckenbach to Overseas Carriers; that those vessels "accreted" to the fleetwide unit of unlicensed seamen represented by SIU; and that the picketing by NMU, which represented such seamen aboard Luckenbach's vessels, therefore violated Sec. 8(b)(7)(A) of the Act. In so doing, the Board (at 222) rejected the NMU's contention that a so-called "MOC Group alone, or through Maritime overseas, exercised control or possessed sufficient control of the unlicensed crew members aboard the four Luckenbach overseas vessels prior to their transfer to justify the finding that the MOC Group alone, or together with Maritime Overseas, constituted the employer of such crew members." The Board therefore concluded that it was unable to find "that the employer, both before and after the transfer in question, was the MOC Group." I have heretofore similarly indicated that PRMSA did not possess sufficient control of the day-to-day operations and NATIONAL MARITIME UNION 37 recognized SIU as the bargaining representative of the unlicensed seamen aboard those vessels pursuant to the SIU-PRMMI collective-bargaining contract 65 Nor am I able to find, as-Respondent urges, in the 1-year history of bargaining in two independent multiship units separately represented by NMU and SIU and other indicated fac- tors66 such special circumstances as were present in the Moore-McCormack case to warrant a determination that no accretion of the Ro-Ro vessels to the SIU-PRMMI contract unit had resulted. In view of the foregoing, I find that PRMMI lawfully recognized SIU as the exclusive representative of the unlicensed seamen aboard the transferred Ro-Ro vessels pursuant to the parties' fleetwide contract. I further find that, by reason of this contract, no question concerning representation could appropriately be raised under Section 9(c) of the Act at the time of the picketing. I, accordingly, conclude- that, by picketing PRMMI's port facilities and vessels in Puerto Rico, Respondent NMU violated Section 8(b)(7)(A) of the Act. Baltimore and Newark Cases (Cases 5-CP-107 and 22-CP-243) The evidence establishes that, as it had done at the ports in Puerto Rico, Respondent NMU picketed PRMMI's port facilities at the Dundalk Marine Terminal and Canton Marine Terminal in Baltimore, Maryland, and at PRMMI's piers in Port Elizabeth, New Jersey, where PRMMI-oper- ated vessels were docked. It is also clear that the picketing had as an object recognition of NMU as the exclusive representative of the unlicensed seamen aboard PRMMI's transferred Ro-Ro vessels, although SIU was at that time the lawfully recognized representative of such employees and no question of representation could properly be raised under Section 9(c) of the Act. Accordingly, I find, as I did with respect to NMU's picketing activities at the Puerto Rico ports, that its picketing of PRMMI at the Baltimore and Elizabeth ports was also in violation of Section 8(b)(7)(A) of the Act. and in like and related conduct and that it take certain affirmative 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. PRMMI is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. PRMMI, PRMSA, Francisco Vega Otero, Inc., John T. Clark and Sons, Inc., and Daniel Marrero Terrion are "persons" engaged in commerce and in industries affecting commerce within the meaning of Section 2(1), (6), and (7) and Section 8(b)(4)(B) of the Act. 3. Respondent NMU and SIU are labor organizations within the meaning of Section 2(5) of the Act. 4. By picketing PRMMI's port facilities in Puerto Rico, at the Dundalk Marine Terminal and the Canton Marine Terminal in Baltimore, Maryland, and at Port Elizabeth, New Jersey, with an object of forcing or requiring PRMMI to recognize and bargain with Respondent NMU as the collective-bargaining representative of the unlicensed sea- men of PRMMI aboard its Ro-Ro vessels at a time when PRMMI lawfully recognized-SIU as the collective-bargain- ing representative of such employees, and a question concerning representation could not be raised under Section 9(c) of the Act, the Respondent NMU has engaged in unfair labor practices within the meaning of Section 8(b)(7)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(4)(B) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: IV. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, it is recommended that Respondent NMU be ordered to cease and desist from engaging in the unfair labor practices found labor relations regarding the unlicensed seamen aboard the Ro-Ro vessels to be regarded as an employer of those employees 85 Cf. National Maritime Union of North America, AFL-CIO, 194 NLRB 1219 (1972), where, in a 10(k) proceeding, the Board awarded disputed work to unlicensed seamen represented by SIU on ships transferred from the employer's east coast fleet whose seamen were represented by NMU to the west coast fleet whose seamen were represented by SIU. It is noted that in the cited case, as here, there was no change in ownership of the transferred vessels. See also International Longshoremen's Union Local No. 8, supra, where the Board found that employees hired to replace employees of a subcontractor whose subcontract was discontinued by the employer consti- tuted an accretion to an existing terminal employees contract unit represent- ed by a union and that therefore the picketing of the employer for recognition by another union which had represented the subcontractor's replaced employees violated Sec. 8(b)(7)(A) of the Act. I am not persuaded by Respondent's assertion that sanctioning the application of the fleetwide-accretion doctrine to a transfer by an owner of vessels from one independent contractor to another, such as occurred in the present case, could lead to an unlawful interference with Sec. 7 rights of ORDER67 The Respondent, National Maritime Union of America, AFL-CIO, its officers, representatives, agents, successors, and assigns, shall: employees to form or assist labor organizations. In my opinion, such a result is highly speculative; in fact, it is noted that Respondent has not filed any unfair labor practice charges against PRMMI or SIU alleging discrimination or unlawful assistance or mterference with employee statutory rights. 66 Sec. 9 of act 62 creating PRMSA, which provides for PRMSA's acknowledgment of existing collective-bargaining agreements of maritime shipping companies whose assets it shall acquire and of "the different contracting units existing in their respective areas for renegotiating agree- ments," clearly cannot govern Federal law and principles regarding appro- priate bargaining units, whatever obligations are thereby imposed on PRMSA. Cf. N L.R.B. v The Natural Gas Utility District of Hawkins County, Tennessee, 402 U.S. 600,602-603 (1971). 67 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from picketing, or causing to be picketed, or threatening to picket or cause to be picketed, the vessels, port, and other facilities of Puerto Rico Marine Management, Inc., in Puerto Rico, Baltimore, Maryland, Elizabeth, New Jersey, and at any other locations where Puerto Rico Marine Management, Inc., conducts its shipping operations, with an object of forcing or requiring Puerto Rico Marine Management, Inc., to recognize and bargain with the Respondent as the collective-bargaining representative of the unlicensed seamen employed by that company aboard its Roll-On/Roll-Off vessels at a time when Puerto Rico Marine Management, Inc., has lawfully recognized Seafarers International Union of North Ameri- ca, Atlantic, Gulf, Lakes and Inland Waters District, 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 its offices, meeting rooms, and hiring halls in Puerto Rico, Baltimore, Maryland, and Elizabeth, New Jersey, copies of the attached notice marked "Appendix." ss Copies of said notice, on forms provided by the Regional Directors for Regions 24, 22, and 5, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Deliver to the Regional Directors for Regions 24, 22, and 5 signed copies of the Appendix for posting by Puerto Rico Marine Management, Inc., in places where notices to employees are customarily posted, if the Company is willing to do so. (c) Notify the Regional Directors for Regions 24, 22, and 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations in the consolidated complaints in Cases 24-CC-195 and 24-CP- 51 and Cases 5-CC-811 and 5-CP-107 charging that the Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(B) of the Act be, and they hereby are, dismissed. 68 In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board." Order of the National Labor Relations Board" shall read "Posted Pursuant