Bull Insular Line, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1945

63 N.L.R.B. 154 (N.L.R.B. 1945)

In the Matter of BULL INSULAR LINE, INC., THE NEW YORK & PORTO
RICO STEAMSHIP CO., WATERMAN DOCK COMPANY , LYKES BROS.
STEAMSHIP CO., INC., AND MCCORMICK STEAMSHIP COMPANY and
UNION NO. 6 DE ESTIBADORES DE MUELLES Y MARINOS DEL PUERTO
DE GUANICA (CIO-CGT)
Case No. 94-R-129.-Decided August 6,1945
Mr. Gilberto Ramirez, for the Board.
Hartzel, Kelly c6 Hartzel, by llir. Jose Novas, of San Juan, P. R.,
for the Companies.
Mr. Enrique Cornier, of San Juan, P. R., for Union No. 6.
Mr. Hipolito Mareano, of San Juan, P. R., for the UTMVI and the
ILA.
Mr. Nathan Saks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Union No. 6 de Estibadores de Muelles
y Marinos del Puerto de Guanica (CIO-CGT), herein called Union
No. 6, alleging that a question affecting commerce had arisen concern-
ing the representation of employees of Bull Insular Line, Inc., The
New York & Porto Rico Steamship Co., Waterman Dock Company,
Lykes Bros. Steamship Co., Inc., and McCormick Steamship Company,
herein called the Companies , the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before James R.
Watson, Trial Examiner. Said hearing was held at San Juan, Puerto
Rico, on April 1'1,12,13,14,16,17, and 18, 1945. The Company, Union
No. 6, Union de Trabajadores de Muelles y Ramas Anexas de Puerto
Rico, herein called the UTM, and International Longshoremen 's Asso-
ciation; Puerto Rico District Council, herein called the ILA, both
affiliated with Federation Libre de Los Trabajadores de Puerto Rico,
State Branch of the American Federation of Labor, appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence
63 N. L . R. B., No 22.
154
BULL INSULAR LINE, INC. 155
bearing on the issues. The Trial Examiner's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. Allparties
were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
Bull Insular Line, Inc., a Maine corporation, The New York &
Porto Rico Steamship Co., a Maine corporation, Waterman Dock
Company, a Puerto Rico corporation, Lykes Bros. Steamship Co., Inc.,
a Louisiana corporation, and McCormick Steamship Company, a
Puerto Rico corporation, each has its principal office in Puerto Rico,
in San Juan.
Prior to the war, each of the Companies operated a general steam-
ship business between Puerto Rico and various ports of the United
States, transporting passengers and freight. Since April 1942, the
Companies have been acting as berth subagents of the.United States
War Shipping Administration in the United States and Puerto Rico,
in which capacity they have been engaged in the loading and dis-
charging of vessels, and the receipt and delivery of cargo.
Each of the Companies admits, and we find, that each is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Union No. 6 de Estibadores de Muelles y Marinos del Puerto de
Guanica (CIO-CGT),' affiliated with Union de Empleados de Muelles
de Puerto Rico and Confederacion General de Trabaj adores de Puerto
Rico, is a labor organization admitting to membership employees of
the Companies.
Union de Trabajadores de Muelles y Rain as Anexas de Puerto Rico,
and International Longshoremen's Association, both affiliated with
the Federacion Libre de los Trabajadores de Puerto Rico, State Branch
of the American Federation of Labor, are labor organizations admit-
ting to membership employees of the Companies.
III. THE QUESTION CONCERNING REPRESENTATION
The Companies have refused to grant recognition to Union No. 6 as
the exclusive bargaining representative of certain of their employees
' While Union No. 6, by virtue of its designation in its petition , apparently claims affilia-
tion with the Congress of Industrial Organizations , and while the UTM and the ILA
make a contrary contention , the record is not sufficiently clear to make a determination of
this question.
156 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
until Union No. 6 has been certified by the Board in an appropriate
unit.
The ILA and the UTM contended at the hearing and in their joint
brief that the "Insular-wide 'contract" between them and the Com-
panies for 1945 and 1946 constitutes a bar to a present determination
of representatives. As noted hereinafter in Section IV, the "contract"'
to which they refer consists actually of a contract with the ILA and
another with the UTM covering the same period of time, and each
purporting to cover all-stevedores employed by the Companies at all
ports on the Island of Puerto Rico. Since it is obvious that the same
employee unit cannot be represented exclusively by each of two sepa-
rate labor organizations at-,the same time, clearly the contracts alleged
to be_a bar can no more be effective for that purpose than a member-
ship-only contract.2 Accordingly, we find that there is no bar to a
present -determination of representatives for employees in the unit
hereinafter found to be appropriate.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that Union No. 6 represents a substantial number of
employees in the unit hereinafter found appropriate.3
- We find that a question affecting commerce has arisen concerning
the representation of employees of the Companies, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
Unit No. 6 seeks a•unit of all stevedores, water boys, and bag sewers-
of the Companies in the port of Guanica, Puerto Rico. The record
discloses, that the employees, in the unit, petitioned for are employed
and paid through the South Porto Rico Sugar Company acting as agent
for the Companies. There are no temporary transfers of employees,
of the -Companies between the port of Guanica and other ports of
Puerto Rico, and the employees at Guanica are subject to a separate
common supervision, and. perform identical. or similar duties related
to the loading or unloading of ships at the port. It is clear, therefore,
that the employees at Guanica constitute a group possessing substantial
common interests which appropriately may, bargain as a separate unit.
The Companies, the UTM, and the ILA contend, however, that the
appropriate bargaining unit consists of all stevedores employed by the•
Matter of Ball Brothers Company, 54 N. L. R. B. 1512 ; Matter of Pressed Steel Car-
Company, Inc., 46 N. L. R. B. 262.
8 The Field Examiner- reported that Union No. 6 submitted 125 membership cards ;
that the names of 113 persons appearing on -the cards were listed on the pay rolls of The-
New York & Porto Rico Steamship Co. for the periods ending April 15,-1943 and March
19, 1944, respectively ; and that there was an average of 155 employees in the alleged
appropriate unit during these periods. Neither the UTM nor the ILA submitted any
proof of representation in the alleged appropriate unit, but both claimed an intereet.in
the proceeding because of their contracts with the Companies purporting to include the
employees in the alleged appropriate unit.
BULL INSULAR LINE, INC. 157
Companies at all ports on the Island of Puerto Rico, including the port
of Guanica, and allege that the history of collective bargaining has
established the appropriateness of such a unit.
The parties agree, and" it is clear, that since 1934 the Companies
have in many instances bargained as an employer group with the unions
involved in this proceeding. The principle issue is whether. or not
bargaining with the multi-employer group has been conducted on the
basis of the Island-wide unit proposed by the Companies, the ILA,
and the UTM.
From 1934 to 1937, the Companies negotiated contracts through a
Steamship Committee with the UTM covering all stevedores employed
at all Puerto Rican ports 4 No contract was negotiated in 1938 during
an Island-wide strike by the stevedores which was settled by an arbi-
tration award. In the same year, the ILA began its organizational
efforts among the stevedores. In 1939, the Companies, the UTM, and
the ILA apparently followed an informal tripartite agreement to abide
by the terms of the 1938 arbitration award. However, in 1939, the
Bull Insular Line, Inc., acting independently of the Steamship Com-
mittee, executed a -written contract with a local union at the port of
Guayanilla covering stevedores, and in 1941 executed a similar contract
with a local union in the port of Fajardo. Also in 1939, the Local of
the UTM functioning at Guanica severed its relationship with the
UTM and later in 1940 affiliated with CGT, becoming Union No. 6,
the petitioner herein. Since 1940, the Steamship Committee has dealt
with the ILA and the UTM in separate negotiation conferences with
each organization for the ports at which the union involved apparently
claimed a majority.5 The record shows that, despite the common
affiliation of the UTM and the ILA, the two organizations have com-
peted in obtaining membership from among the stevedores at various
Island ports, and that the stevedores at some of the ports have shifted
from one organization to the other on several occasions. In 1941,
Union No. 6 and The New York & Porto Rico Steamship Co., the only
one of the Companies operating at Guanica at that time, negotiated
and signed a separate contract covering the port, but since that time
have been unable to reach an agreement although the Union conducted
a strike at that port in 1944 and again in 1945.
It is obvious, therefore, that since 1938 the collective bargaining of
the Companies with the UTM and the ILA with respect to the steve-
dores in Puerto Rico has not been conducted on a true Island-wide
' The Steamship Committee is an informal association composed of representatives of the
several Companies. The Committee has possessed no formal authority to bind any of the
Companies , and contracts negotiated have always been referred to each of the Companies
for its approval and signature.
while the separate contracts negotiated by the Steamship Committee with the ILA
and the IJTM have each purported to be Island -wide in scope, obviously two different labor
organizations can not represent exclusively the same employee unit at the same time.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis, but rather on a shifting multi-port basis of considerably nar-
rower scope. Moreover, these variable divisions in the ranks of the
Island-wide group of stevedores are reflected in the history of the
employer group personified by the Steamship Committee. Thus, in
1939, one of the Companies and, iii 1941, two of the Companies, nego-
tiated and executed separate contracts with labor organizations with-
out the assistance of the Steamship Committee.
In view of the foregoing, and upon the entire record in the case,
we are of the opinion that the history of collective bargaining among
the stevedores in Puerto Rico does not establish the appropriateness
of an Island-wide units To the contrary, the fact that stevedore
groups at the several Island ports since 1937 have shifted affiliation
from one union to another, particularly between the UTM and the
ILA, is indicative of the appropriateness at this time of units confined
to separate ports.'
Accordingly, we find that all stevedores, water boys, and bag sewers 8
employed by the Companies at the port of Guanica, Puerto Rico, ex-
cluding all supervisory employees with the authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate -for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. As hereto-
fore stated, Union No. 6 called a strike in 1945. The strike is still in
progress, and the record does not disclose that any new employees
have been hired. Under these circumstances, we shall select the pay-
roll immediately preceding the date of the strike for purposes of deter-
mining eligibility to vote. We shall therefore direct that those eligible
to vote in the election shall be those employees in the appropriate unit
who were employed during the pay-roll period immediately preceding
the 1945 strike, subject to the limitations and additions set forth in the
Direction.9
Cf. Matter of Rayonier, Incorporated, Grays Harbor Division, 52 N. L. R. B 1269.
4 See Matter of Bull Insular Line , Inc„ 56 N . L R B 189.
8 There is no dispute among the parties with respect to the inclusion of water boys and
bag sewers within a unit of stevedores
9 Although neither the UTM nor the ILA has submitted proof of any representation in
the unit herein found appropriate , in view of their alleged contractual interest , we shall
accord each of them a place on the ballot , with leave to withdraw , if they so desire, by
giving notice to that effect to the Regional Director within ten (10) days after the date
of this Decision and Direction of Election.
BULL INSULAR LINE, INC. 159
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DiREGTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Bull Insular Line,
Inc., The New York & Porto Rico Steamship Co., Waterman Dock
Company, Lykes Bros. Steamship Co., Inc., and McCormick Steam-
ship Company, an election by secret ballot shall be conducted as early
as possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Twenty-fourth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among the employees
in the unit found appropriate in Section IV, above, who were em-
ployed during the pay-roll period immediately preceding the 1945
strike, including employees who did not work during the said pay-roll
period because they were ill or on vacation or temporarily laid,ofY,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those employ-
ees who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, to deter-
mine whether they desire to be represented by Union No. 6 de Esti-
badores de Muelles y Marinos del Puerto de Guanica, affiliated with
the Union de Empleados de Muelles de Puerto Rico and the Confedera-
tion General de Trabajadores de Puerto Rico, or by Union de Trabaja-
dores de Muelles y Ramas Anexas de Puerto Rico, affiliated with the
Federation Libre de los Trabajadores de Puerto Rico, State Branch
of the American Federation" of Labor, or by the International Long-
shoremen's Association, affiliated with 'the Federation Libre de los
Trabajadores de Puerto Rico, State Branch of the American Federa-
tion of Labor, for the purposes of collective bargaining, or by none
of these labor organizations.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.