Bull Insular Line, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1946

71 N.L.R.B. 38 (N.L.R.B. 1946)

In the Matter of BULL INSULAR LINE, INC., NEW YORK AND PORTO RICO
STEAMSHIP CO., INC., WATERMAN DOCK CO., AND LYKES BROS.
STEAMSHIP CO., INC., EMPLOYERS and UNION DE TRABAJADORES DE LA
INDUSTRIA MARITIMA DE PUNTA SANTIAGO (CIO-CGT), PETITIONER
Case No. 24-R-130.-Decided September 07, 1946
Mr. Vincent M. Rotolo, for the Board.
Mr. Charles R. Hartzell, by Jose L. Novas, of San Juan, P . R., for
Bull Insular Line, Inc ., New York and Porto Rico Steamship Co., and
San Juan Mercantile Corporation.
Mr. E. Larroca , of San Juan, P. R., for Lykes Bros. Steamship Co.
Messrs. J. A. Cintron Rivera , Salustiano Maldonado , and R. Car-
raras Valle , of Santurce , P. R., for the Petitioner.
Messrs. Hipalito Mareano, E . G. Moreno, Nicolas Colon, Jose Pre-
cups, and Victor Carrillo , of San Juan, P. R., for the I. L. A.
Mr. Julius Topol, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed , hearing in this case was held at San
Juan, Puerto Rico, on January 28 , 1946, before Arthur Leff, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed .' All oral argument
requests made in this case are hereby denied inasmuch as the record,
in our opinion , adequately presents the issues and positions of the
parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF TILE EMPLOYERS
Bull Insular Line, Inc., a New York corporation; New York and
Porto Rico Steamship Co., a New York corporation; Waterman Dock
i At the hearing, the hearing officer granted a motion of the Waterman Steamship Cor-
poration to delete its name from the petition on the ground that it was erroneously listed
as an Employer of the employees in issue. A similar motion was made on behalf of the
McCormick Steamship Co , Inc, and the San Juan Mercantile Corporation on the ground
that neither has ever engaged in shipping at the port involved The hearing officer
referred this matter to the Board for determination. The motion is hereby granted and
the petition is so amended.
71 N. L. R. B., No. 11.
38
BULL INSULAR LINE, INC. 39
Co., a Puerto Rico corporation ; and Lykes Bros. Steamship Co., a
Louisiana corporation ; each had, before the war, operated a general
steamship business between Puerto Rico and various ports of the
United States, transporting passengers and freight. At the time of
the hearing herein, the Employers were acting as berth subagents of
the United States War Shipping Administration in the United States
and Puerto Rico, in which capacity they were engaged in the loading
and discharging of vessels and in the receipt and delivery of cargo.
The Employers admit and we find that each is engaged in commerce
within the meaning of the National Labor Relations Act.
IT. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with Union de
Empleados de Muelles de Puerto Rico ( CIO-CGT ), claiming to repre-
sent employees of the Employers.
International Longshoremen's Association, herein called the I. L. A.,
is a labor organization affiliated with Federation Libre de los Traba-
jadores de Puerto Rico, State Branch of the American Federation of
Labor , claiming to represent employees of the Employers.
III. THE QUESTION CONCERNING REPRESENTATION
The Employers refuse to recognize the Petitioner as the exclusive
bargaining representative of certain employees of the Employers at
the port of Punta Santiago, Humacao,' Puerto Rico, until the Petitioner
has been certified by the Board in an appropriate unit.
The Employers and the I. L. A., relying on the same bargaining
history which the Board considered in Matter of Bull Insular Line,
Inc., et al.,3 reassert their position in that case, viz, that an existing "In-
sular-wide" contract with the I. L. A. for the years 1945 and 1946
affecting these employees is a bar to this proceeding . However, as
Indicated in that case, the I. L. A. contract is one of two separate
contracts of similar duration, one with the I. L. A. and the other with
Union de Trabajadores de Muelles y Ramas Anexas de Puerto Rico,
herein called the U. T. Al., which when taken together include all the
ports on the Island, but which, when viewed separately, embrace only
those ports at which the I. L. A. or the U. T. M., as the case may be,
has affiliated locals. We there rejected the Employers' and the
I. L. A.'s contentions and held, as we do now, that "since it is obvious
that the same employee unit cannot be represented exclusively by each
of two separate labor organizations at the same time, clearly the con-
Herein called Humacao
s 63 N. L R B. 154. The case cited involved stevedores at the port of Guanica , Puerto
Itico , and is herein called the Guanica case.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tracts alleged to be a bar can no more be effective for that purpose than
a membership-only contract." 4 Accordingly, we shall proceed to a
present determination of representatives of the employees in the unit
hereinafter found to be appropriate.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employers, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. TI-IE APPROPRIATE UNIT
The Petitioner seeks a unit of all stevedores, water boys, and bag
sewers, in the port of Humacao, excluding executives, officers, and
supervisors. There is no dispute as to the classification of employees
sought to be included in the unit. The Employers and the I. L. A.
contend, however, that the proposed unit, limited to a single port, is
inappropriate, and that •the appropriate unit is an Island-wide unit
consisting of all stevedores employed by all the shipping companies
in all ports on the Island.
We had occasion, in the Guanica case, to review in considerable de-
tail the nniltiple-employer bargaining on the Island with respect to
such employees. In the face of a similar contention by the Employers
and the I. L. A. made therein, we said that :
It is obvious, therefore, that since 1938 the collective bargain-
ing of the Companies with the UTM and the ILA with respect
to the stevedores in Puerto Rico has not been conducted on a
true Island-wide basis, but rather on a shifting multi-port basis
of considerably narrower scope. Moreover, these variable divi-
sions in the ranks of the Island-wide group of stevedores are re-
flected in the history of the employer group personified by the
Steamship Committee. Thus, in 1939, one of the Companies and,
in 1941, two of the Companies, negotiated and executed separate
contracts with labor organizations without 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 bargain-
ing among the stevedores in Puerto Rico does not establish the
appropriateness of an Island-wide unit. To the contrary,` the
fact that stevedore groups at the several Island ports since 1937
have shifted affiliation from one union to another, particularly
*A schism occurred in 1944 at Humacao in the ranks of the I L. A.'s Local 1584 as then
constituted, which resulted ultimately in the formation of the Petitioner by one faction,
and the reconstitution of the I. L. A. local under the same name by the other faction.
However, in view of our holding above that the I. L A contract is not a bar, we find it
unnecessary to determine whether the reconstituted Local 1584 was the legal successor to
the first group and competent to act as signatory to the above-mentioned contract and to
bind the employees in issue herein.
BULL INSULAR LINE, INC. 41
between the UTINI and the ILA, is indicative of the appropriate-
ness at this time of units confined to separate ports.
We there concluded that the stevedores, water boys, and bag sewers
employed by the Employers at the port of Guanica constituted a unit
appropriate for collective bargaining.
The record in the instant case incorporates by reference the record
in the Guanica case with respect to the past bargaining history for all
such employees on the Island. The additional bargaining history in
the instant record, which relates in the main to Humacao, reemphasizes
our previous finding as to the nature of the bargaining pattern on the
Island' and establishes that the same bargaining pattern still exists.
It also reflects that, as in Guanica, those involved herein depend for
most of their employment as stevedores on the shipping of sugar
during the grinding season, perform identical work, are subject to a
separate common supervision, live in the vicinity of the port, and
possess substantially common interests separate and apart from those
of the stevedores in other ports. Although, unlike the situation at
Guanica, the stevedores at Humacao work at other ports and on occa-
sion stevedores from other ports find temporary employment at
Humacao, it is, nevertheless, clear that the employees comprising the
unit at Humacao remain at all times a clearly identifiable group.
In view of the foregoing, we are of the opinion that the bargaining
pattern among the stevedores in Puerto Rico fails to establish the
appropriateness of an Island-wide unit at this time; but, instead,
indicates the present appropriateness of units limited to individual
ports.
Accordingly, we find that all stevedores, water boys, and bag sewers
employed by the Employers at the port of Punta Santiago, Humacao,
Puerto Rico, excluding executives, officers, and supervisors, and all or
any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot.
"The instant record implements further our finding in the Guanica case that there has
been a shifting pattern of multi -port bargaining on the Island. It reveals that, during the
prewar years , the stevedores at Humacao effected the following changes in affiliation
1938-from the U. T M. to the I. L A.
1939-from the I. L A. to the U. T M.
1941-from the U. T. M. to the I. L A.
These changes obviously caused an alteration in the combination of ports bargained for
by both the I L. A and the U. T. M.
42 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
The Petitioner contends that employees who worked during the last
two pay-roll periods before the closing in February 1942 of the port of
I-Jumacao because of the war, as well as employees who were employed
during two pay-roll periods immediately subsequent to the opening of
the port in April 1945, should be eligible to vote for a bargaining
representative. The I. L. A. contends, on the other hand, that a pay-
roll period following the opening of the port in April 1945 should be
used to determine eligibility to vote. As indicated above, the port of
Humacao remained closed from February 1942 to April 1945. Pre-
p^iratory to the reopening of the port, the Employers, disregarding the
factional split in affiliation which occurred among the stevedores at
Humacao in December 1944, included the employees in Humacao in its
closed-shop contract with the I. L. A. for the years 1945 and 1946.
Because of the closed-shop provision in that contract, a direction to use
pay-roll periods postdating the opening of the port in 1945, exclusively,
would have the effect of excluding from voting those employees who,
after the schism in the I. L. A. Local 1584 at Humacao in 1944, refused
to become members of Local 1584 as reconstituted , and thereby preju-
diced their chances of employment. On the other hand, the exclusive
use of pay-roll periods antedating the signing of the contract would,
because of the long period the port was closed, involve sole reliance on
eligibility lists that are now 4 years old. Under all the circumstances,
we shall direct the combined use of (1) the two pay-roll periods imme-
diately preceding the closing of the port in February 1942, and (2)
the two pay -roll periods immediately preceding the Direction of Elec-
tion herein, for purposes of determining eligibility to vote.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Bull Insular Line, Inc., New
York and Porto Rico Steamship Co., Inc., Waterman Dock Co., and
Lykes Bros. Steamship Co., Inc., 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
Agent for the National Labor Relations Board for the Twenty-fourth
Region, and subject to Sections 203.55 and 203.56, of National Labor
Relations Board Rules and Regulations-Series 4, among the em-
ployees in the unit found appropriate in Section IV, above, who were
employed either during (1) any one of the last two pay-roll periods
immediately preceding the closing of the port of Humacao in Febru-
ary 1942, or (2) any one of the two pay-roll periods immediately pre-
ceding the date of this Direction, including employees who did not
work during any one of these four pay-roll periods because they were
ill or on vacation or temporarily laid off, and including employees in
BULL INSULAR LINE, INC. 43
the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, to determine whether or not
they desire to be represented by Union de Trabaj adores de la Industria
Maritima de Punta Santiago (CIO-CGT), or by International Long-
shoremen's Association, for the purposes of collective bargaining, or
by neither.
MR. JAMES J. Rj;vNor,ns, JR., took no part in the consideration of
the above Decision and Direction of Election.
CIIAIRM AN PAUL M. HERZOG, concurring specially :
Inasmuch as the Board, in its 1945 decision involving stevedores at
the port of Guamca,e evaluated the history of bargaining in Puerto
Rico and found that collective bargaining for such employees had
not proceeded on a true Island-wide basis, I feel constrained to follow
that decision, although I might not reach the sauce result if this were
a matter of first impression. It follows that an election should be
directed at Humacao, as requested by the petitioner herein.
° _ifattei of Bull Insnlai Line, Inc , et at, 63 N L R B 154 , in which I did not
participate