Bull Insular Lines, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1954

108 N.L.R.B. 433 (N.L.R.B. 1954)

BULL INSULAR LINES, INC. 433
make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing
industrial strike which burdens and obstructs commerce, and thus effectuate the policies of
the Act, it will be recommended that the Respondent cease and desist from in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following;
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, AFL, Localijnions Nos. 920, 1044, and
898 are labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment and in the terms and
conditions of employment of Arthur Crisman, H. W. Black, A. R. Legett, Sidney Wright, B. D.
Thomas, George Whitney, and Alton S. Ray because of their membership in and activities on
behalf of the Union thereby discouraging membership in International Brotherhood of Elec-
trical Workers, AFL, Local Unions Nos. 920, 1044, and 898, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the
Act.
3. By interfering with, restraining, and coercing the employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce with-
in the meaning of Section 2 (6) and (7) of the Act.
5. By discharging Raymond B. Sadler the Respondent did not commit any unfair labor
practice.
[Recommendations omitted from publication.]
BULL INSULAR LINES, INC., and WATERMAN DOCK COM-
PANY, INC. and JUAN MARIA PIZZINI, ET AL.
LOCAL 1585, MAYAGUEZ UNION OF THE INTERNATIONAL
LONGSHOREMEN'S ASSOCIATION, AFL and PUERTO RICO
STEAMSHIP ASSOCIATION. Cases Nos. 24-CA-363 and 24-
CB-46. April 23, 1954
DECISION AND ORDER
On January 14, 1954, Trial Examiner Thomas N. Kessel
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondents, Bull Insular Lines, Inc., and
Waterman Dock Company, Inc., herein called the Companies,
and the Respondent, Local 1585, Mayaguez Union of the Inter-
national Longshoremen's Association, AFL, herein called the
Union, had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter,
the Companies filed exceptions directed only to the remedy
recommended in the Intermediate Report. No other exceptions
have been filed.
108 NLRB No. 77.
339676 0 - 55 - 29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Companies ' request for oral argument is hereby denied
as the record , including the exceptions , adequately presents
the issues.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions , and the
entire record in the case , and hereby adopts the findings, con-
clusions , and recommendations contained in the Intermediate
Report.
In substance the Trial Examiner found that, as a result of a
work stoppage sponsored by the Union, the Companies removed
the names of approximately 80 workers from its hiring lists
and thereafter confined its hiring of dockworkers or gave
preference in their hiring to Union members. The Trial Ex-
aminer also found that, at the instance of the Union which had
deposed Juan M. Pizzini as its president, the Companies re-
fused to employ Pizzini in his customary occupation as a winch
operator. The Trial Examiner concluded that by such conduct
the Companies violated Section 8 (a) (1) and ( 3), and the Union
violated Section 8 (b) (1) (A) and (2) of the Act. The Trial Ex-
aminer recommended that the Companies and the Union , jointly
and severally , make whole the discriminatees for loss of earn-
ings, as more fully set forth in the Intermediate Report.
As indicated above, only the Companies have excepted to the
Intermediate Report. The Companies do not except to the Trial
Examiner's unfair labor practice findings . They except only to
the Trial Examiner ' s recommendation that the Companies bear
a joint and several responsibility with the Union for back pay.
Although the Companies admit in their exceptions that "the
actions of the union may not completely excuse the discrimina-
tion of the companies ," they contend that the Companies should
be held only secondarily liable and the Union primarily re-
sponsible to the employees for back pay as "the discrimination
was basically caused by the Union ." However, the Board' and
the courts' have held that when an employer yields to union
pressure both are responsible for the resulting discrimination
and that, as neither the Act nor its legislative history dis-
tinguishes between primary and secondary responsibility for
discrimination , the appropriate remedy in such cases is to
assess back pay jointly and severally against all responsible
parties.' Accordingly, for the reasons indicated in these
precedents , we find no merit in the Companies ' contention.
'See, for example , H M. Newman, 85 NLRB 725; Acme Mattress, 91 NLRB 1010, en-
forced 192 F. 2d 524 (C. A 7); The Englander Company, 108 NLRB 38.
2See, for example, Oertel Brewing v. N. L. R B., 197 F 2d 59. 62 (C A 6); Lloyd A
Fry Roofing v. N L. R. B , 193 F. 2d 324, 327 (C A. 9), and cases therein cited in footnote
5; N. L. R. B v. Puerto Rico Steamship Association, 211 F. 2d 274 (C A 1).
3See, particularly, Acme Mattress, cited supra, where the rationale for such remedy is
explicated.
BULL INSULAR LINES. INC. 435
ORDER
U ton the entire record in this case, and pursuant to Section
10 (pc) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that:
I. The Respondents, Bull Insular Lines, Inc., and Waterman
Dock Company, Inc., their officers, agents, successors, and
assigns, each shall;
1. Cease and desist from:
(a) Encouraging membership in Local 1585, Mayaguez Union
of the International Longshoremen's Association, AFL, or in
any other labor organization of their employees, by discrimi-
nating in respect to the hire or tenure of employment or any
terms or conditions of employment of any employees.
(b) Performing or giving effect to the March 18, 1952, 15-
gang list hiring practices agreed to with Local 1585, or to any
modification, extension, supplement, or renewal thereof which
requires as a term or condition of employment membership in
Local 1585, except as authorized by Section 8 (a) (3) of the Act.
(c) Refusing to offer regular or permanent employment to
Juan Maria Pizzini as a winch operator, because of his classi-
fication on the 15-gang list as a stevedore.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to engage in
or to refrain from engaging in any and all of the concerted
activities guaranteed to them by Section 7 of the Act, except to
the limited extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Include all the persons herein found to have been dis-
criminated against as well as all other qualified persons
similarly situated, on any hiring lists to be used by the Com-
panies for the employment of stevedores and winch operators,
and immediately offer them employment on a rotation or other
nondiscriminatory basis, according to them full seniority and
other rights as regular or permanent employees without regard
to their membership in Local 1585 or in any other labor organi-
zation.
(b) Classify Juan Maria Pizzini as a regular or permanent
winch operator on any hiring lists to be used by the Companies
and offer him employment in that capacity in accordance with
the provisions contained in paragraph (a), immediately above.
(c) Respondent Bull to post at its offices and place of busi-
ness at Mayaguez, Puerto Rico, and inallplaces where notices
or communications to its employees are customarily posted,
copies of the notice attached hereto marked "Appendix A." 4
4In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Decision and Order" the words Pursuant co a
"Decree of the United States Court of Appeals, Enforcing an Order."
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Waterman to post at its offices and place of busi-
ness at Mayaguez, Puerto Rico, and in all places where notices
or communications to its employees are customarily posted,
copies of the notice attached hereto marked "Appendix B." 5
Copies of said notices, to befurnishedbythe Regional Director
for the Twenty-fourth Region, shall, after being duly signed by
representatives of the foregoing Companies, be posted immedi-
ately upon receipt thereof and maintained for sixty (60) con-
secutive days thereafter in conspicuous places. Reasonable
steps shall be taken to insure that saidnotices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-fourth Region,
in writing, within ten (10) days from the date of this Order,
what steps they have taken to comply herewith.
IL The Respondent, Local 1585, Mayaguez Union of the
International Longshoremen's Association, AFL, its officers,
agents, representatives , successors , and assigns, shall:
1. Cease and desist from:
(a) Directing, instigating, or encouraging employees to
engage in a strike or other refusal to work, or approving or
ratifying such action taken by employees, for the purpose of
requiring the Companies to agree to a hiring arrangement
which makes membership in Local 1585 a condition of employ-
ment, except to the limited extent authorized by Section 8 (a)
(3) of the Act.
(b) Performing or giving effect to the March 18, 1952, 15-
gang list hiring practices agreed to with the Companies, or to
any modifications, extensions , supplements, or renewals there-
of which require as a term or condition of employment mem-
bership in Local 1585.
(c) Causing or attempting to cause the Companies to dis-
criminate in any manner against their employees in violation
of Section 8 (a) (3) of the Act.
(d) Causing or attempting to cause the Companies to dis-
criminate against Juan Maria Pizzini in violation of Section 8
(a) (3) of the Act by requiring them to classify him on their
hiring lists for regular or permanent employees as a steve-
dore rather than as a winch operator.
(e) In any other manner restraining or coercing employees
of the Companies in the exercise of their right to engage in or
to refrain from engaging in any and all of the concerted activ-
ities guaranteed to them by Section 7 of the Act, except to the
limited extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Notify the Companies in writing, and furnish copies of
such notification to the employees herein found to have been
5 See footnote 4, supra.
BULL INSULAR LINES, INC. 437
discriminated against, that it does not object to their employ-
ment by the Companies , or to the employment of other quali-
fied persons similarly situated , as stevedores and winch
operators on a rotation or other nondiscriminatory basis with
full seniority and other rights as regular or permanent em-
ployees without regard to their membership or nonmembership
in Local 1585 , or any other labor organization.
(b) Notify the Companies in writing, and furnish a copy of
such notification to Juan Maria Pizzini, that it will not object
to said Pizzini ' s classification as a winch operator on any
future hiring lists to be used by these Companies for the
employment of longshoremen , and that it does not object to
Pizzini's employment by these Companies as a winch operator
in accordance with the provisions set forth in paragraph (a),
immediately above.
(c) Post in conspicuous places at its business offices and
meeting halls in Mayaguez , Puerto Rico , or other places where
notices to its members are customarily posted , copies of the
notice attached hereto marked "Appendix C ."6 Copies of said
notice, to be furnished by the Regional Director for the Twenty-
fourth Region , shall, after being duly signedby representatives
of Local 1585 , be posted immediately upon receipt thereof and
maintained for a period of at least sixty ( 60) consecutive days
thereafter . Reasonable steps shall be taken by Local 1585 to
insure that said notices are not altered , defaced , or covered
by any other material.
(d) Mail to the Regional Director for the Twenty - fourth
Region signed copies of the above notice , for posting , with per-
mission of the Companies , at their offices and places of busi-
ness at Mayaguez , Puerto Rico , and in all places where notices
or communications for their employees are customarily posted
by the Companies . Copies of said notices , to be furnished by
the Regional Director for the Twenty-fourth Region, shall,
after being signed as provided in paragraph 2 (c) above, be
forthwith returned to the Regional Director for said posting.
(e) Notify the Regional Director for the Twenty - fourth
Region, in writing , within ten ( 10) days from the date of this
Order , as to what steps have been taken to comply herewith.
III. The Respondents , Bull Insular Lines, Inc ., Waterman
Dock Company, Inc., and Local 1585, Mayaguez Union of the
International Longshoremen ' s Association , AFL, their respec-
tive officers , representatives , agents , successors , and assigns,
shall jointly and severally make whole the employees herein
found to have been discriminated against for any loss of earn-
ings they may have suffered because of the discrimination
against them, in the manner prescribed in the section of the
Intermediate Report herein entitled "The Remedy."
6See footnote 4, supra
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify our
employees that:
WE WILL cease performing or giving effect to the March
18, 195Z, 15 -gang list hiring practices agreed to with
Waterman Dock Company, Inc., and Local 1585, Mayaguez
Union of the International Longshoremen ' s Association,
AFL, or to any modification , extension , supplement, or
renewal th4reof which requires as a term or condition of
employment membership in the aforesaid Local 1585, or
in any other labor organization , except as authorized in
Section 8 (a) (3) of the Act.
WE WILL cease classifying Juan Maria Pizzini as a
stevedore rather than as a winch operator on our hiring
lists , and refusing to employ him as a winch operator
because of his nonmembership in Local 1585.
WE WILL NOT encourage membership in Local 1585, or
in any other labor organization of our employees , by dis-
criminating in regard to the hire or tenure of employment
of our employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the Act, except to
the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the
Act.
WE WILL include the following employees, as well as
any other qualified persons similarly situated, on any
hiring lists to be used by us for the employment of regular
or permanent stevedores and winch operators , and will
immediately offer them employment on a rotation or other
nondiscriminatory basis, according to them full seniority
and other rights as regular or permanent employees,
without regard to their membership in Local 1585, or in
any other labor organization, and we will jointly and
severally with Waterman Dock Company, Inc., and Local
1585 , make them whole for any loss of earnings suffered
as a result of the discrimination against them:
BULL INSULAR LINES, INC.
Joaquin Bracero
Antonio R. Cappi
Jose Colon
Ventura Fernandez
Angel Laguer
Baldomero Lopez
Reinaldo Lopez
Santos Lopez
Pedro Luciano
439
Angel Mario
Juan Medina
Felix Padilla
Victor Padilla
Juan M. Pizzini
Juan M. Pizzini
Abraham Rivera
Fabian Rodriguez
Ramon Santiago
Segundo Soler
Manuel Alers
Frank Bracero
Ramon Bracero
Virgilio Cargagena
Rafael Cintron
Angel Curet
Ramon Diaz
Jaime Domenech
Ramon Feliciano
Julio Fernandez
Genaro Conzalez
Juan Gonzalez
Virgilio Gonzalez
Luis Jimenez
Jorge Lopez
Andres Lucret
Juan Lugo
Bienvenido Maisonet
Thomas Martinez
Vincente Mattei
Daniel Odiot
Demetrio Quinones
Nicholas Ramirez
Carlos M. Rodriguez
Pedro Rodriguez
William Soler
Julio M. Torres
Angel L. Valentin
Pablo Vargas
Concepcion Vega
Louis A. Vega
Domingo Vigo
Carlos Rivera
Emiliano Vargas
Juan Antonio Martinez
Frank Rivera Valentin
Francisco Perez
Pascual Rosado
Santos Tirado
Nelson Morris
Juan Perez
Victor Valentin
Nelson Alemar
Eusebio Ferrer
Fernando Sanchez
Juan Fernandez
Salvador Cardona
Gregorio Euciano
Felix Ponce de Leon
Manuel Ferrer
Carlos Collazo
Alejandro Melez Roman
Samuel Mangual
Santos Cardona
Anastasio Figueroa
Constantino Torres
Miguel A. Rivera
(Bemba)
Juan Gonzalez
J. A. Fajardo
Jose Amy Vasquez
Juan L. Ramos
Jose Alvarez
`Referring to the Juan M. Pizzini listed as a stevedore on gang 9 of the 20-gang list.
*# Referring to the Juan M. Pizzini listed as a winch operator on gang 19 of the 20-gang
list and as a stevedore on gang 8 of the 15-gang list.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become, remain, or refrain
from becoming, members of Local 1585, or any other labor
organization , except to the extent that membership in a labor
organization may be required as a condition of employment,
as authorized by Section 8 (a) (3) of the Act.
BULL INSULAR LINES, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify our
employees that:
WE WILL cease performing or giving effect to the March
18, 1952, 15 -gang list hiring practices agreed to with Bull
Insular Lines , Inc., and Local 1585, Mayaguez Union of the
International Longshoremen's Association , AFL, or to any
modification , extension , supplement , or renewal thereof
which requires as a term or condition of employment mem-
bership in the aforesaid Local 1585 , or in any other labor
organization , except as authorized in Section 8 (a) (3) of the
Act.
WE WILL cease classifying Juan Maria Pizzini as a
stevedore rather than as a winch operator on our hiring
lists, and refusing to employ him as a winch operator
because of his nonmembership in Local 1585.
WE WILL NOT encourage membership in Local 1585, or
in any other labor organization of our employees , by dis-
criminating in regard to the hire or tenure of employment
of our employees.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the Act, except to
the extent such rights may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment , as authorized in Section 8 (a) (3) of
the Act.
WE WILL include the following employees , as well as
any other qualified persons similarly situated, on any
hiring lists to be used by us for the employment of regu-
BULL INSULAR LINES, INC. 441
lar or permanent stevedores and winch operators , and will
immediately offer them employment on a rotation or other
nondiscriminatory basis, according to them full seniority
and other rights as regular or permanent employees with-
out regard to their membership in Local 1585, or in any
other labor organization , and we will jointly and severally
with Bull Insular Lines, Inc., and Local 1585 , make them
whole for any loss of earnings suffered as a result of the
discrimination against them:
Joaquin Bracero
Antonio R. Cappi
Jose Colon
Ventura Fernandez
Angel Laguer
Baldomero Lopez
Reinaldo Lopez
Santos Lopez
Pedro Luciano
Angel Mario
Juan Medina
Felix Padilla
Victor Padilla
Juan M. Pizzini
Juan M. Pizzini
Abraham Rivera
Fabrian Rodriguez
Ramon Santiago
Segundo Soler
Manuel Alers
Frank Bracero
Ramon Bracero
Virgilio Cartagena
Rafael Cintron
Angel Curet
Ramon Diaz
Jaime Domenech
Ramon Feliciano
Julio Fernandez
Genaro Gonzalez
Juan Gonzalez
Virgilio Gonzalez
Luis Jimenez
Jorge Lopez
Andres Lucret
Juan Lugo
Bienvenido Maisonet
Thomas Martinez
Vincente Mattei
Daniel Odiot
Demetrio Quinones
Nicholas Ramirez
Carlos M. Rodriguez
Pedro Rodriguez
William Soler
Julio M. Torres
Angel L. Valentin
Pablo Vargas
Concepcion Vega
Luis A. Vega
Domingo Vigo
Carlos Rivera
Emiliano Vargas
Juan Antonio Martinez
Frank Rivera Valentin
Francisco Perez
Pascual Rosado
Santos Tirado
Nelson Morris
Juan Perez
Victor Valentin
Nelson Alemar
Eusebio Ferrer
Fernando Sanchez
Juan Fernandez
Salvador Cardona
Gregorio Euciano
Feliz Ponce de Leon
Manuel Ferrer
Carlos Collazo
Alejandro Melez Roman
Samuel Mangual
Santos Cardona-
Referring to the Juan M. Pizzini listed as a stevedore on gang 9 of the 20-gang list.
Referring to the Juan M. Pizzini listed as a winch operator on gang 19 of the 20-gang
list and as a stevedore on gang 8 of the 15-gang list.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anastasio Figueroa J. A. Fajardo
Constantino Torres Jose Amy Vasquez
Miguel A. Rivera (Bemba) Juan L. Ramos
Juan Gonzalez Jose Alvarez
All our employees are free to become , remain, or refrain
from becoming, members of Local 1585, or any other labor
organization , except to the extent that membership in a labor
organization may be required as a condition of employment, as
authorized by Section 8 (a) (3) of the Act.
WATERMAN DOCK COMPANY, INC.,
Employer.
Dated ................ By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
APPENDIX C
NOTICE
TO ALL MEMBERS OF LOCAL 1585, MAYAGUEZ UNION OF
THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,
AFL
AND
TO ALL EMPLOYEES OF BULL INSULAR LINES, INC., AND
WATERMAN DOCK COMPANY, INC.
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify you
that:
WE WILL cease performing or giving effect to the March
18, 1952, 15-gang list hiring practices agreedtowith us by
Bull Insular Lines, Inc., and Waterman Dock Company,
Inc., or to any modification, extension , supplement, or re-
newal thereof which requires as a term or condition of
employment membership in Local 1585, Mayaguez Union
of the International Longshoremen's Association, AFL,
except as required by a valid agreement pursuant to Sec-
tion 8 (a) (3) of the Act.
WE WILL NOT direct, instigate , encourage , approve,
or ratify a strike or other refusal to work by employees
for the purpose of requiring the foregoing Companies to
agree to a hiring arrangement which makes membership
BULL INSULAR LINES, INC. 443
in Local 1585 a condition of employment, except as au-
thorized by Section 8 (a) (3) of the Act.
WE WILL NOT cause or attempt to cause the foregoing
Companies to discriminate in any manner against their
employees in violation of Section 8 (a) (3) of the Act, and,
in particular, we will not cause or attempt to cause these
Companies to classify Juan Maria Pizzini on any hiring
lists as a stevedore to prevent his employment as a winch
operator because of his nonmembership in Local 1585,
WE WILL NOT in any other manner restrain or coerce
employees of the foregoing Companies in the exercise of
rights guaranteed them in Section 7 of the Act, or in the
right to refrain therefrom, except to the extent that such
rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
WE WILL jointly and severally with the foregoing Com-
panies, their successors, and assigns, make whole the
following employees for any loss of earnings suffered as a
result of the discrimination against them:
Joaquin Bracero
Antonio R. Cappi
Jose Colon
Ventura Fernandez
Angel Laguer
Juan Medina
Gelix Padilla
Victor Padilla
Juan M. Pizzini
Juan M. Pizzini
Abraham Rivera
Fabian Rodriquez
Ramon Santiago
Segundo Soler
Manuel Alers
Frank Bracero
Ramon Bracero
Virgilio Cartagena
Rafael Cintron
Angel Curet
Ramon Diaz
Jaime Domenech
Ramon Feliciano
Julio Fernandez
Genaro Gonzalez
Juan Gonzalez
Virgilio Gonzalez
Luis Jimenez
Jorge Lopez
Andres Lucret
Juan Lugo
Bienvenido Maisonet
Thomas Martinez
Vincente Mattei
Daniel Odiot
Demetrio Quinones
Nicholas Ramirez
Carlos M. Rodriguez
Pedro Rodriguez
William Soler
Jose Alvarez
Baldomero Lopez
Reinaldo Lopez
Santos Lopez
Pedro Luciano
Angel Mario
Julio M. Torres
Angel L. Valentin
Pablo Vargas
Concepcion Vego
Luis A. Vega
Domingo Vigo
Carlos Rivera
Emiliano Vargas
* Referring to the Juan M. Pizzini listed as a stevedore on gang 9 of the 20-gang list.
**Referring to the Juan M. Pizzi[u listed as a winch operator on gang 19 of the 20-gang
list and as a stevedore on gang 8 of the 15-gang list.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Juan Antonio Martinez Feliz Ponce de Leon
Frank Rivera Valentin Manuel Ferrer
Francisco Perez Carlos Collazo
Pascual Rosado Alejandro Melez Roman
Santos Tirado Samuel Mangual
Nelson Morris Santos Cardona
Juan Perez Anastasio Figueroa
Victor Valentin Constantino Torres
Nelson Alemar Miguel A. Rivera
Eusebio Ferrer ( Bemba)
Fernando Sanchez Juan Gonzalez
Juan Fernandez J. A. Fajardo
Salvador Cardona Jose Amy Vasquez
Gregorio Euciano Juan L. Ramos
WE DO NOT object to the inclusion of the above-named
employees, as well as any other qualified persons similarly
situated , on any hiring lists to be used by the foregoing
Companies for the employment of regular or permanent
stevedores and winch operators at Mayaguez , Puerto Rico,
and to the immediate offer to them by these Companies of
employment on a rotation or other nondiscriminatory basis,
according to them full seniority and other rights as regular
or permanent employees without regard to their member-
ship in Local 1585, or in any other labor organization, ex-
cept to the extent authorized in Section 8 (a) (3) of the Act,
and have given these Companies written notice to this effect.
LOCAL 1585, MAYAGUEZ UNION OF THE
INTERNATIONAL LONGSHOREMEN'S AS-
SOCIATION, AFL
Employer.
Dated ................ By....................................................
(Representative) Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge in Case No. 24-CA-363 filed by Juan Maria Pizzini in behalf of himself and
61 other persons named in the charge against Puerto Rico Steamship Association, herein
called the Association, and its member companies, Bull Insular Lines, Inc., and Waterman
Dock Company, Inc., herein respectively called Bull and Waterman, and upon a charge in
Case No. 24-CB-46 filed by the Association against Mayaguez local of the District Council of
the Ports of Puerto Rico, formerly known as Local 1585, International Longshoremen's
Association, AFL, herein called Local 1585, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for theTwenty-fourth Region (Santurce, Puerto Rico),
issues on April 16, 1953, an order consolidating the above-captioned cases, and an amended
BULL INSULAR LINES, INC. 445
consolidated complaint alleging that the Respondents named therein had engaged in and were
engaging in certain unfair labor practices affecting commerce within the meaning of the
National Labor Relations Act, 61 Stat 136, hereincalled the Act Copies of the order consoli-
dating, the amended complaint, the charges, and a notice of hearing were duly served upon all
the parties.
With respect to the unfair labor practices, the amended complaint, herein called the com-
plaint, alleged in substance that Bull and Waterman had jointly and severally violated Section
8 (a) (3) and (1) of the Act by agreeing upon, maintaining, and enforcing an arrangement with
Local 1585 whereby its members were preferred for regular or permanent employment as
stevedores and winch operators on the docks and ships of these Companies at the port of
Mayaguez, Puerto Rico, over persons who were not members of Local 1585. The complaint
further alleged that these Companies had discriminated against one Juan Maria Pizzini, by
changing his classification from winch operator to stevedore and thereafter failing to employ
him as a winch operator because of the opposition of Local 1585 to his employment in that
capacity.
With respect to the unfair labor practices attributed to Local 1585, the complaint alleged
that it had violated Section 8 (b) (2) and (1) (A) of the Act by inducing and causing Bull and
Waterman to adopt and maintain the foregoing unlawful hiring practices and to have partici-
pated with these Companies in the formulation and maintenance of these practices for the
purpose of perferring its members for employment over nonmembers, and to prevent the
employment of Pizzini as a winch operator.
The answer duly filed by Bull and Waterman generally denied any conduct violative of the
Act, and pleaded specially (a) that the Companies had conducted themselves in compliance with
the terms and conditions of a collective-bargaining agreement dated March 6, 1952, with the
ILA; (b) that employees had been selected from hiring lists in such manner as to assure a
reasonable distribution of work for all employees, and (c) if any of the persons listed in the
complaint were subjected to discrimination, this occurred without the knowledge or consent of
the Companies. The answer duly filed by Local 1585 generally denied commission of any un-
lawful conduct Both complaints prayed for dismissal of the complaint These prayers for
dismissal are denied in accordance with the findings, conclusions, and recommendations
hereinafter set forth.
Pursuant to notice, a hearing was held at Santurce, Puerto Rico, from June 8 to 12, 1953, and
was adjourned to August 4, 1953, when the hearing was concluded on that date at New York,
New York The General Counsel, the Respondent Companies and Union were represented by
counsel Full opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence was afforded all parties. The parties were advised of their opportunity to file
briefs with the undersigned but failed to do so.
Upon the entire record in the case, and from my observation of the witnesses, I make the
following-
FINDINGS OF FACT
L THE BUSINESS OPERATIONS OF THE RESPONDENT COMPANIES
The complaint alleges and the answers admit that Bull insular Lines, Inc., a New York cor-
poration, and Waterman Dock Company, Inc., a Puerto Rico corporation, are each engaged in
the general steamship business between Puerto Rico and various ports of the United States,
transporting freight and passengers. Each Company transports large quantities of cargo of
substantial value in the course of its operations. Each Company is also a member of the Puerto
Rico Steamship Association, a nonprofit organization of steamship companies, wharfingers,
and other employees engaged in shipping and related operations in Puerto Rico. The total
value of cargo shipped by the employer members of the Association from Puerto Rico in 1952
exceeded $ 300,000,000. In the same period the total value of cargo transported by these em-
ployer members to Puerto Rico from the United States and foreign countries exceeded
$200,000,000. The parties concede in their answers and it is here found that Bull and Waterman
are each engaged in commerce within the meaning of the Act
IL THE LABOR ORGANIZATION INVOLVED
Local 1585, Mayaguez Union of the International Longshoremen's Association, AFL, is a
labor organization within the meaning of the Act
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The hiring practices alleged unlawful
1 Introductory facts
According to the complaint and the General Counsel's contention at the hearing , the hiring
practices challenged as unlawful were instituted by the Respondents , Bull , Waterman, and
Local 1585 , pursuant to their agreement of March 18, 1952. Proper appreciation and evaluation
of these practices requires consideration of certain events occurring before this date which
project the hiring practices in question in fuller light and clearer focus . Accordingly, the
following preference is rjiade to these events.
Before 1938 there existed in Puerto Rico a labor organization known as "Concejo Insular
de Uniones, UTM," affiliated with the State Branch of the American Federation of Labor in
Puerto Rico This council (Federation Libre` del Trabajo) had as its affiliates local unions
composed of longshoremen at various Puerto Rican ports, including the part at Mayaguez. In
1938 the ILA chartered separate longshoremen's locals in the same ports including Local
1585 at Mayaguez In 1941 these ILA locals became affiliates of the ILA Council of the District
of Puerto Rico which was then formed Unsuccessful attempts were made in the same year to
bring all the UTM locals into the ILA. In 1948 the UTM locals received ILA charters, the
Mayaguez local being henceforth known as Local 1741 These locals , however, retained their
affiliation with the UTM Council which thereafter was called ILA Council No. 2 Thus, in 1948
there existed in Puerto Rico these two longshoremen's groups, the ILA District Council with
its affiliated locals, including Local 1585 at Mayaguez, and ILA Council No. 2 with its affili-
ates, including Local 1741 at Mayaguez
In November 1950 it was agreed to merge both councils as well as each set of locals at the
various ports. Pursuant to this agreement these mergers were consummated and became
effective in January 1951. Local 1741 lost its formal identity and there remained only Local
1585 as a result of the merger of the two Mayaguez locals The formal unification of the
Mayaguez locals did not, however , extinguish their old economic rivalries Competition for
work between these groups continued after the merger as before The circumstances relating
to this competition, particularly as it affects the vital issues of this case , will be detailed
below
Before 1947 each council conducted a separate bargaining negotiations on behalf of its
affiliated locals with the Association which represented the shipping companies and other
member companies. In that year the first joint committee of the two councils broke up and each
council continued to be represented by its own committee as theretofore In 1950 both councils
again bargained jointly with the Association and negotiated a contract effective until December
31, 1951 This contract was followed by the current contract signed on March 6, 1952, to be
effective until December 31, 1953. As distinguished from the Islandwide scope of the foregoing
contracts, the March 18, 1952, agreements by Bull and Waterman with Local 1585 under
scrutiny in this proceeding involve only the hiring of stevedores and winch operators by these
Companies at Mayaguez.
2. Bull and Waterman hiring practices at Mayaguez before March 18, 1952
For some time before their merger in 1951, Local 1585 and Local 1741 had established re-
lations with the various steamship companies at Mayaguez whereby member of their respective
locals were preferred inobtaining stevedoring work . Thus, Bull and Waterman gave preference
to members of Local 1585 in hiring stevedores and which operators , and hired nonmembers
only when there were insufficient Local 1585 members to meet their employment demands On
the other hand, members of Local 1741 had preferment in securing employment as stevedores
and winch operators from several other companies at Mayaguez.
Under the practice before the merger, whenever Bull or Waterman required stevedores or
winch operators they notified Local 1585 whose officials thereupon referred the requisite
number of employees from lists maintained by the Union As these lists were composed ex-
clusively of members of Local 1585, preferment of members of the Union for Bull and
Waterman jobs was thereby assured. As part of the merger of Local 1585 and Local 1741, a
BULL INSULAR LINES, INC. 447
combined hiring list of regular and "suplente"i members of these unions to be used by all
companies at Mayaguez in stevedoring operations , was prepared under the auspices of the
Council and with the cooperation of the Association This list, dated April 16, 1951, was
presented to Bull and Waterman and an attempt was made by their foremen and the officials
of the newly merged Local 1585 to put it into effect . Opposition , however , developed from the
original members of Local 1585 to sharing their work for Bull and Waterman with former
local 1741 members, and after 1 day the latter group was sufficiently intimidated so that its
members ceased to report to the Bull and Waterman piers for work . The list was then
abandoned and the former practice was resumed whereby the old rotation list was used by
Bull and Waterman in preferring the original Local 1585 members for work . Bull and Water-
man continued to hire from this list until the Islandwide ILA strike in January 1952 which
produced the March 6, 1952, contract previously mentioned.
It should be noted that the above - related Bull and Waterman hiring practices as well as the
union-security provisions contained in the 1950 contract negotiated by the ILA District
Council and by the Association were, according to the stipulation of the parties in this pro-
ceeding, applicable to the relations between Bull and Waterman with Local 1585. These hiring
practices and contract provisions were found to be unlawful by the Board in its decision in-
volving the parties herein reported at 103 NLRB 1217, issued in March 1953 In its decision
the Board held that by executing and enforcing the contract containing the foregoing unlawful
union-security provisions the Association and its member companies, including Bull and
Waterman, had violated Section 8 (a) (1). (2), and (3) of the Act, and that the ILA District
Council and its affiliates, including Local 1585, had violated Section 8 (b) (2) and (1) (A) of the
Act. Counsel for Local 1585 was unwilling to stipulate that any findings made by the Board in
the above-cited decision should constitute findings in this proceeding. Counsel, however, con-
ceded that the undersigned could properly take judicial notice of the decision. Such notice is
here taken . It is empahsized that all findings in this proceeding are based on evidence con-
tained in the instant record and are made independently of the Board ' s findings in the foregoing
decision
In January 1952 the ILA staged its Islandwide strike against the Association and its member
companies, which continued into the month of February 1952. After termination of the strike
the parties signed the March 6, 1952, contract , which, as related , is the current bargaining
agreement between the Association and the ILA District Council and their respective members
and affiliates This contract did not retain the unlawful union -security provisions of the con-
tract which expired on December 31, 1951, but in their stead included provisions which satis-
fied the Board in its decision as being " apparently legitimate ." The contract extended the
terms of the October 24, 1950 , agreement except as modified . amended, or changed, and then
provided:
3-a. Article II--"Union Shop"--Sections A, B, C, D. E and F are hereby deleted.
[These are the union security and hiring provisions found unlawful by the Board in the
above- cited decision.]
ILocal 1585 has maintained during all times material herein two classes of members,
regular members who are entitled to all benefits and privileges of membership, and "su-
plente" members, who have no voting privileges, cannot hold office, and receive only medi-
cal and burial benefits from the Union. Regular members pay a $75 initiation fee. Suplentes
do not. As suplente members of the Union, they are eligible to become regular members
and to receive permanent places on the hiring lists for Bull and Waterman employment upon
payment of the initiation fee. This advancement, however, is contingent on the occurrence of
vacancies on the permanent hiring list resulting from the unavailability of regular members
for work for reasons such as death, departure, or sickness. Regular members pay monthly
dues whether they work for the Companies or not. However, if they do not work they pay
only 60 cents monthly. Suplentes pay dues only when they work for the Companies. In addition
to suplente members of the Union, there are suplentes who do not belong to the Union but who
are employed by the Companies when the hiring lists have been exhausted. They, too, are
required to pay dues to the Union when they are employed by the Companies. All persons
employed by the Companies including regular members of Local 1585, suplente members,
and suplentes who are not members pay to the Union 20 cents per shift worked by them for
the Companies.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5-b Article II--"Union Shop"-- shall read as follows:
Membership in the Union shall be a condition of employment on and after the 30th
day following the beginning of such employment provided the employer has no reason-
able grounds for believing (1) that such membership was not available to the em-
ployee on the same terms and conditions generally applicable to other members and
(2) that membership in the Union was notdemed or terminated for reasons other than
the failure of the employee to tender the periodic dues and initiation fees uniformly
required as a condition for acquiring or retaining membership in the union.
6. A new article designated - -Hiring Practices -- reads as follows:
A. The present rotary lists hiring systems in all ports -- are hereby abolished and
pending the making lists of gangs in all ports -- the workers shall be shaped by the
companies at the piers.
C. Gangs shall be set up on a permanent basis as follows:
1. Lists of gang members shall be prepared by each company without discrimina-
tion in the Union and such lists shall be supplied to the Union and made available to
all the workers . If no objection is madewithin thirty (30) days after the said lists are
supplied to the Union made available to all the workers, then the members of the
gangs shall be permanent
2. In making up gangs lists, preference shall be given by seniority to all workers
who during the week ending January 19, 1952 , appear as actual employees of the
individual company preparing the said gang lists. For the purpose of this Article
a worker shall have seniority after having completed thirty (30) days of actual
work with the companies.
F. Vacancies and permanent gangs shall be filled by the Companies in the same
manner and with the same procedure as when•the gangs were formed.
Although the new contract was signed on March 6 , 1952, agreement was reached before then,
particularly as to the new hiring practices . Accordingly, Domingo Cummings, the Bull
office manager at Mayaguez, proceeded on February 22, 1952, to carry out what he considered
to be the import of the new terms . Pursuant to his understanding he prepared a joint hiring
list in collaboration with the Waterman dock superintendent to be used by Bull and Waterman
for the employment of regular or permanent stevedores and winch operators . Included were
persons who during the last 3 months of1951 had worked at least 30 days for both Companies.
These persons were listed without regard to Union membership Although the negotiations
were attended by representatives from companies in Mayaguez besides Bull and Waterman,
and although Cummings was not instructed to limit the hiring list to employees of Bull and
Waterman , it was his belief that this was what he was supposed to do. He thereupon prepared
a list from the social- security records of Bull and Waterman The list consisted of 20 gangs,
each including 3 winch operators and 8 stevedores , except that only 2 winch operators were
listed for gang 14 and none for gang 20. Upon completion of the list on February 22, 1952,
Cummings sent a copy to Local 1585. No immediate objections were registered by the Union,
and Bull and Waterman thereupon proceeded to hire from the list. This practice continued
until March 17, 1952
3. Abandonment of the 20-gang list and adoption of the current hiring practices
At 7 a. m. March 17, 1952, Cummings , the aforesaid Bull office manager , and Mario
Ramirez , the Waterman dock superintendent at Mayaguez , were prepared to call several
gangs from the 20-gang list in accordance with the practice of rotating gangs already estab-
lished, to work on ships of their Companies in port Ramirez was to call 6 gangs starting
with gang 11. Cummings intended to call the required number of gangs for Bull starting with
the gang following the last one called by Ramirez Waterman's list had already been sub-
mitted to Vicente Castillo , the president of Local 1585, who was then present at the dock
with Bializ , the Union's delegate . As the Waterman gangs were about to be called Castillo
BULL INSULAR LINES, INC. 449
informed Ramirez and Cummings that after gang 12 had been called, they must then call
gang 1, otherwise the men would not work. The effect of this demand would have been to
reduce the list to 12 gangs by the elimination therefrom of the last 8 gangs. No reason for
the demand was expressed by Castillo or Bializ other than that the men wanted the first 12
gangs to get as much work as possible . In response to Ramirez ' request for a written
statement as to the workers' position for submission to the Waterman office in San Juan,
Puerto Rico, Castillo replied that he would have to call a meeting of the Union. Later that
day, Castillo presented to Ramirez a document on ILA stationery dated March 17, 1952,
which contained on its first page advice to the effect that a general assembly had agreed that
only 12 gangs consisting of members of the Union should be regularly employed, and that
other workers should be utilized only when there was work requiring the services of more
than 12 gangs . To this first sheet were attached several pages containing approximately 91
signatures of Local 1585 members. Officials of the Union appeared not to be among the
signers. Ramirez showed this document to Cummings and then turned it over to the Water-
man home office in San Juan. On instructions from that office, Ramirez proceeded on March
17, 1952, with the Waterman ship from Mayaguez to Ponce, Puerto Rico, where cargo
destined for that port was unloaded. The ship returned to Mayaguez for unloading of cargo
for that port only after Ramirez was advised on about March 18, 1952, that the matter in
dispute had been settled. The Bull ship at Mayaguez was also not worked on March 17 or 18.
After Castillo and Bializ announced the demand for 12 gangs the workers remained outside
the Company gate for a short while and then left They did not return that day or the next.
No picket lines were formed.
A conference was held at Mayaguez on March 18, 1952, attended by Cummings, Jose
Maria Vasquez, the Bull dock superintendent, William Vidal, Waterman's Mayaguez office
manager, representatives of Local 1585, including Castillo, Bializ, and Juan Muller who
subsequently became president of Local 1585 in July 1952, and a conciliator from the Puerto
Rico Department of Labor. At the conference the Union representatives continued the demand
for a 12-gang list which was opposed by the Company representatives. Cummings and
Vasquez testified that they knew at the conference that the persons on the first 12 gangs were
the same Union members who had regularly been employed under the former unlawful prac-
tice whereby Local 1585 had from its own rotary list referred its members to the Com-
panies. Cummings also testified that he knew that the 12-gang proposal was unlawful in that
it would have discriminated against the last 8 gangs on the 20-gang list which, under the
proposal, were to be employed only when there was more work at 1 time than 12 gangs could
handle. He so indicated to the Union representatives, who apparently were not persuaded by
this argument to abandon their demand. The Union's position in this respect was revealingly
expressed by the aforementioned Muller, who at the time of the hearing was president of
Local 1585, who testified that he was present at the conference as a member of a committee
chosen to represent "the membership of the Union." He freely admitted that the Union's
membership at the time consisted of the persons on the first 12 gangs, and that the remain-
ing 8 gangs were not composed of members. As for the reasons for the insistence by the
"workers" for limiting the hiring list to these 12 gangs, he frankly testified as follows:
Simply because we worked like that, with 12 gangs for a long time and when the Com-
pany presented the 20-gang list we would be prejudiced and then we would have to share
our livelihood because our hours of work would be shortened.
Muller further testified that at the time of the conference only the persons on the first 12
gangs had been organized by the Union and had paid their $ 75 initiation fees to the Union.
As negotiations progressed , the representatives on both sides reached a compromise
whereby the 20-gang list was to be shortened by the deletion of the last 5 gangs This agree-
ment was conditioned on the payment to the Union of the $ 75 initiation fees by the persons
on gangs 13 to 15 inclusive and their acceptance into the Union's membership. The remaining
5 gangs were to be retained on a separate list as suplentes, to be called only when workers
in excess of 15 gangs were required. Cummings testified that he had understood at the time
that such a preferential hiring arrangement was violative of the Act, but that the Companies
were nevertheless constrained to agree because there was a ship in port which had to be
unloaded.
Following their March 18, 1952, agreement the parties proceeded to put it into practice
Vasquez, the Bull dock superintendent, testified without contradiction that he currently hires
stevedores and winch operators from the 15-gang list, and hires persons from the suplente
339676 0 - 55 - 30 -
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
list or others not listed only when there are personnel demands in excess of 15 gangs.
Permanent substitutions of names on the 15-gang list required by deaths, departures, or
other reasons are made by him, but only on instructions from Local 1585. Ramirez similarly
testified that Waterman hires from this list, and uses suplentes only when 15 gangs are
insufficient to meet personnel requirements. In practice, the Companies notify the Union in
advance of the particular gangs to be called. The persons in these gangs are then listed on
a notice posted on the Union bulletin board. Having thus been notified, the men report the
next morning to the piers where the chief foremen of the Companies call the gangs in rotation
from their lists. A delegate from the Union is present to observe the call.
The record shows that in March 1952 after the Companies had adopted and put into effect
the gang lists in furtherance of the March 6, 1952, contract, the Association prepared a
92-gang list which was sent to the Companies for their use at Mayaguez. Because of objec-
tions to this list by the ILA District Council the list was never put into operation by the
Companies. On September 3, 1952, the ILA District Council sent a 24-gang list of stevedores
and winch operators to the Association with a letter explaining that this list was composed
of the original members of Local 1585 and former members of Local 1741 who were now
merged in a single union. The letter pointed out'that the first 15 gangs were the original
Local 1585 members, and the remaining 9 gangs comprised the former Local 1741 mem-
bers, and requested the Association to notify all its member companies at Mayaguez to
begin hiring from this list not later than September 6, 1952. No provision is made either in
the 24-gang list or in the accompanying letter of the ILA District Council for the employment
of stevedores or winch operators by the Mayaguez employers on any basis other than mem-
bership in the merged Local 1585. The 24-gang list was never adopted and the parties
respondent hereto still abide by and operate under the 15-gang list agreed upon on March 18,
1952.
B. Juan Maria Pizzini
Except for a few occasions when he had worked as a "planchero," Pizzini had worked for
Bull and Waterman during a period of 30 to 32 years exclusively as a winch operator. He
had never worked for these Companies as a stevedore, nor had he ever been classified by
them or on Union hiring lists as a stevedore. Nevertheless, he was included on the 15-gang
list as a stevedore and not as a winch operator. The duties of a winch operator consist
merely of operating a machine. No lifting is required. A planchero attaches a hook suspended
from a sling or ropes to cargo resting on a cart so that the cargo can be lifted to trailers
and hauled away. Stevedores lift and carry heavy weights. It is clear on the record that the
duties of a stevedore are considerably more arduous than those of a winch operator. At the
time of the hearing Pizzini was 61 years old.
Pizzini was one of the original founders of Local 1585 when it was organied in 1938 and in
that year became its first president. He continued his membership in the Union and in about
1950 served as its acting president while the person who was then president was imprisoned.
In 1951 Pizzini was elected president and served in that capacity until July 3, 1951, when he
was deposed by the ILA District Council because of alleged irregularities in the conduct of
his office. According to custom, Pizzini's name was automatically removed during his tenure
as president from the rotary hiring lists formerly maintained by Local 1585. By custom his
name was to have been restored to the lists when his term ended. However, after he was
deposed in 1951 he was unable to secure employment as a winch operator from either Bull
or Waterman despite his efforts to obtain such employment. In all the time elapsing since
that date he worked for the Companies as a winch operator only 1 day on March 10, 1952.
On that occasion he obtained the badge of another worker and demanded employment from the
Company hiring foreman who recognized him and reluctantly employed him. Castillo, then
president of Local 1585, was on the pier and vigorously tried to prevent Pizzini's employ-
ment, but despite his opposition Pizzini worked that day. He thereafter reported daily to the
piers seeking employment, but was not called as a winch operator, although it appears that
his name was called as a stevedore. When his name was thus called, it seems that his son,
whose name is the same as his father's, responded and received employment as a stevedore.
Once Pizzini spoke to Cummings about employment, but was informed that he could not be
given work until Cummings was instructed to do so by his San Juan office. In January 1953
Pizzini left Puerto Rico and came to New York City where he has since resided.
When the 20-gang list had been prepared by the Companies on February 22, 1952, Pizzini's
name had been included as a winch operator on gang 19. The 15-gang list, however, lists
BULL INSULAR LINES , INC. 451
him on gang 8 as a stevedore. There is a notation on the current 15-gang list showing that he
is in New York. Gang 9 of the 20-gang list also includes a Juan M. Pizzmi as a stevedore.
The record does not reveal the identity of this individual. As there is no indication that this
Pizzini is the person involved in this case, it is assumed that he is another person with the
same name.
Pizzini credibly testified that after he was deposed as president in July 1951, he made
timely offers of dues payments to the Union which were refused. First, he went personally
to the Union to offer his dues, and in October 1951 sent a money order, but this was returned
with the advice that the ILA Council had directed the Union not to accept his dues. From
March 1952 until the end of that year he went monthly to the Union's office and offered his
dues to the treasurer who refused to accept them. Finally, in February 1953, he mailed a
money order to the Union covering dues payments for 1 year, but this also was returned to
him. He has since made no further offer of dues.
Officials of Local 1585 and the ILA District Council testified that Pizzini had been sus-
pended as a member of the Union in 1951 in accordance with the Union's constitutional
provision for such action when a member is 3 months in arrears in his dues payment, and
that his subsequent offers of dues payments were refused because of his suspension. These
officials also testified that Pizzini had in effect forfeited or had voluntarily relinquished his
place on the Union hiring list as a winch operator because of a private arrangement with
another worker to whom he had given his place in return for a percentage of his earnings.
C. Conclusions as to the illegality of
the 15-gang list hiring practice
The principal issue in this case involves the legality of the 15-gang list hiring practice
adopted on March 18, 1952. No challenge Is offered to the March 6, 1952, contract between
the ILA and its locals with the Association and its members. Nor is any question raised as
to the propriety of the 20-gang list prepared by the Companies in this case in furtherance of
that contract. Accordingly, while the undersigned has serious doubts as to whether the 20-
gang list is consistent with the requirements of the contract, and as to its legality, no
findings with respect thereto are made herein. It is sufficient, for purposes of this case, to
confine all findings and conclusions to the legal aspects of the 15-gang list hiring practice,
and the conduct of the parties respecting the adoption and maintenance of that practice.
Section 7 of the Act guarantees employees the right to refrain from joining a union except
where membership is required after 30 days pursuant to a valid union-security agreement,
and this right is protected by the Act against infrmgment either by employers or labor
organizations. Section 8 (a) (1) of the Act provides that it shall be an unfair labor practice
for an employer to interfere with, restrain, or coerce employees in the exercise of rights
guaranteed by Section 7, and Section 8 (a) (3) of the Act forbids discrimination by an em-
ployer in regard to hire or tenure of employment to encourage or discourage membership
in a labor organization. Section 8 (b) (1) (A) makes it an unfair labor practice for a labor
organization to restrain or coerce employees in the exercise of their rights under Section 7
to engage or to refrain from engaging in union activities, and Section 8 (b) (2) forbids a labor
organization to cause or attempt to cause an employer to discriminate against employees
because of their failure to join a union. These sections of the Act are violated by both an
employer and a union if they arrange or agree to give employees a priority in initial em-
ployment because of their membership in a particular union. N. L. R. B. v. F. H. McGraw &
Co., et al., 206 F. 2d 635 (C. A. 6); N. L. R. B. v. Jarka Corp., 198 F. 2d 618 (C. A. 3). The
hiring practice in question constitutes just such an arrangement and therefore directly
contravenes the Act's proscriptions.
The record convincingly shows, and it is found, that the 15-gang list hiring practice
adopted on March 18, 1952, and maintained thereafter by agreement of Bull and Waterman
with Local 1585 had as its purpose and effect the preferment of regular members of Local
1585 for employment as stevedores and winch operators by Bull and Waterman at Mayaguez.
It is plainly evident that the work stoppage of March 17, 1952, was resorted to by Local 1585
to cause Bull and Waterman to abandon the 20-gang list adopted on February 22, 1952,
because the hiring practice based on this list required Local 1585 members to share their
work for Bull and Waterman with persons who were not full-fledged members of their
Union. It is also clearly shown by the record, and it is found, that these objectives were
clearly understood by the representatives of the Companies and Local 1585 at the March 18,
1952, conference, and that they entered into the agreement of that day adopting the 15-gang
list hiring practice fully aware of its purpose and effect as aforesaid.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Local 1585 has not expressly defended this proceeding on the ground that the March
17, 1952, demand for a 12-gang list and the concomitant threat of refusal to work as well as
the 15-gang list agreement of March 18, 1952, were the independent conduct of workers for
which Local 1585 has no responsibility, there is some intimation that such defense is con-
templated. This is intimated by the questioning of witnesses at the hearing by counsel for
Local 1585 to show that: (a) Castillo and Bializ , the Union's officials, indicated to Company
Representatives Ramirez and Cummings on March 17, 1952, that the 12-gang demand came
from the "workers" and that their refusal to work if the demand were not met was not to be
taken as a strike; (b) the written notification to the Companies of their demand with signa-
tures of the workers attached did not include the signatures of Local 1585's officials; and
(c) Juan Muller attended the March 18, 1952, conference at which the 15-gang list agreement
was reached as a representative of the "workers." Assuming that Local 1585 has such
defense in mind, it is accorded no merit. Any such attempt by Local 1585 to evade responsi-
bility for the conduct in question ignores the fact that the spokesmen for the "workers"
were the Union's chief officials on the Companies' docks, that these same officials were
present at the March 18, 1952, conference and participated in the deliberations and the
resultant agreement , that the workers who assertedly initiated the March 17, 1952, demand
and ultimatum and who sent their representatives to the conference constituted virtually
the entire membership of the Union, that their demands encouraged membership in the
Union, and that Local 1585 has always and still does participate in the administration of the
15-gang list hiring practices. It is found that the March 17, 1952, 12-gang demand and threat
to refuse to work, which is here regarded as a strike threat, were directed and approved by
Local 1585, that this Union through its officials directly participated in the formulation and
adoption with the Companies of the 15-gang list on March 18, 1952, and that Local 1585 has
adopted and ratified the 15-gang list hiring practices through participation in their admini-
stration and enforcement.
As a result of this agreement and its subsequent enforcement, the persons designated in
Appendices A. B, and C of the complaint were discriminated against by denial to them of
regular or permanent initial employment as stevedores and winch operators because of
nonmembership in Local 1585. This result was accomplished as alleged in the complaint
(1) by the exclusion from the 15-gang list of the persons listed on Appendix A of the com-
plaint who had formerly been included as regular employees 2 on the 20-gang list, (2) by
listing the persons on Appendix B of the complaint as suplentes and depriving them of their
2 The following persons, listed in Appendix A of the complaint , appeared on the 20-gang
list as regular or permanent stevedores or winch operators, but were not included in the
15-gang list either as regular or suplente employees: Joaquin Bracero, Antonio R. Cappi,
Jose Colon, Ventura Fernandez, Angel Laguer, Baldomero Lopez, Remaldo Lopez, Santos
Lopez, Pedro Luciano, Angel Mario, Juan Medina, Feliz Padilla, Victor Padilla, Juan M.
Pizzini, Abraham Rivera, Fabian Rodriguez, Ramon Santiago, and Segundo Soler.
(Note: The complaint does not indicate whether the Juan M. Pizzini listed in Appendix A
thereof is the person included as a stevedore on gang 9 of the 20-gang list, or the Juan M.
Pizzini with whom this case is principally concerned and who appears on the 20-gang list
as a winch operator on gang 19. To clear up any confusion from this coincidence of names,
it is here found that the Pizzini included in the above group is the person named as a steve-
dore on the 20-gang list, This finding is based on the apparent mutual understanding of the
parties that the Pizzini named as a winch operator on the 20-gang list and the Pizzini named
as a stevedore on the 15-gang list are the same person. It is also noted that there is no
Ramon Santiago on the 20-gang list. There is, however, a winch operator in gang 16 of this
list named Santiago Roman. It is assumed that both these names pertain to the same person.
As the undersigned cannot determine the correct name from the record, any doubt as to the
identity of the Ramon Santiago named above will have to be settled during compliance with
the recommended order herein. Finally, it should be noted that Vicente Mattei was not in-
cluded in the above group although his name appears on Appendix A of the complaint. Mattei
is included as a suplente on the 15-gang list and should, therefore, have been listed only on
Appendix B of the complaint,)
DULL INSULAR LINES, INC. 453
former status on the 20-gang list as regular employees,3 and (3) by merely according the
persons listed on Appendix C of the complaint suplente status on the 15-gang list.4
By engaging in the foregoing conduct, it is found that Bull and Waterman each violated
Section 8 (a) (3) and 8 (a) (1) of the Act,5 and that Local 1585 violated Section 8 (b) (2) and
8 (b) (1) (A) of the Act.
D. Conclusions as to discrimination against Pizzini
The undersigned is convinced that Pizzim's employment by Bull and Waterman was
opposed by Local 1585 because of his exclusion from the Union following his deposition as
president in July 1951, and that inclusion of his name as a stevedore on the 15-gang list was
merely an ill-concealed stratagem designed to create the illusion that the Union was not
3The following persons , listed in Appendix B of the-complaint, appeared on the 20-gang
list as regular or permanent stevedores or winch operators, but were classified only as
suplentes under the 15-gang list: Manual Alers, Frank Bracero, Ramon Bracero, Virgilio
Cartagena, Rafael Cintron, Angel Curet, Ramon Diaz, Jaime Domenech, Ramon Feliciano,
Julio Fernandez, Genaro Gonzalez, Juan Gonzalez, Virgilio Gonzalez, Luis Jimenez, Jorge
Lopez, Andres Lucret, Juan Lugo, Bienvenido Maisonet, Tomas Martinez, Vicente Mattei,
Daniel Odiot, Demetrio Quinones, Nicolas Ramirez, Carlos M. Rodriguez, Pedro Rodriguez,
William Soler, Julio M. Torres, Angel L. Valentin, Pablo Vargas, Concepcion Vega, and
Luis A. Vega.
(Note: Domingo Vigo is listed on Appendix B of the complaint. His name, however, does
not appear on the 20-gang list. As he is included with the suplentes under the 15-gang list
he should have been named on Appendix C of the complaint. It is here assumed that the
above-named Bienvenido Maisonet is the same person whose name appears on the suplente
list as Maysonet,)
4The following persons listed in Appendix C of the complaint were named as suplentes
under the 15-gang list. They had not been included in the 20-gang list.
Carlos Rivera, Emiliano Vargas, Juan Antonio Martinez, FrankRivera Valentin, Francisco
Perez, Pascual Rosado, Santos Tirado, Nelson Morris, Juan Perez, Victor Valentin, Nelson
Alemar, Eusebio Ferrer, Fernando Sanchez, Juan Fernandez, Salvador Cordona, Gregorio
Euciano, Felix Ponce de Leon, Manuel Ferrer, Carlos Collazo, Alejandro Melez Roman,
Samuel Mangual, Santos Cardona, Anastasio Figueroa, Constantino Torres, Miguel A. Rivera
(Bemba), Juan Gonzalez, J. A. Fajardo, Jose Amy Vasquez, Juan L. Ramos, and Jose Alvarez.
(The suplente list contains the name Gregorio Eliciano and not Gregorio Euciano. It is
assumed that these names pertain to the same person. There is a Jose Cruz Vasquez on the
suplente list, but no Jose Amy Vasquez. It is assumed that these names also pertain to the
same person. Any doubts as to the identity of these persons will have to be resolved during
the compliance stage. As there is only one Ramon Diaz named on the suplente list it is here
assumed that this is the person included in Appendix B of the complaint and that his name
was erroneously included in Appendix C of the complaint.)
5No merit is accorded the special defenses interposed by the Companies. Assuming that
the March 6, 1952, contract is lawful in all its aspects, it is clear that the unlawful agree-
ment of March 18, 1952, and the discriminatory hiring practices conducted pursuant thereto
are not in furtherance of that contract. Nor is the unlawful conduct by the Companies excused
by their plea of economic necessity, or by the contention that through the 15-gang list hiring
practices the Companies intended to assure a more reasonable distribution of work for all
employees. Obviously, the discriminatory effect of these practices on the hire and tenure of
employment of the numerous persons who were excluded from the 15-gang list or were
merely listed as suplentes, and therefore denied regular employment or any employment at
all, belies the latter contention. As to the plea of economic necessity, it is well-settled that
such circumstance does not relieve an employer of the responsibility for his discrimination.
or because the exigencies of the moment make expedient a violation of the Act. See H M.
Newman et al., 85 NLRB 725, and numerous citations contained in footnote 15 of this de-
cision.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposed to his employment. It was apparent, however, to the undersigned from his observa-
tion of Pizzmi that at his advanced age he is physically incapable of performing the arduous
duties of a stevedore and that if the only work available to him with Bull and Waterman is as
a stevedore, he is and has been as effectively denied employment as if his name had been
omitted altogether from the 15-gang list.
I have no doubt as to the Union's hostility towards Pizzini and its desire to exclude him
from its membership. I unhesitatingly credit his testimony to the effect that he had made
timely but futile attempts to pay his Union dues after he was deposed as president, and reject
as untrue the explanation advanced by the Union for refusing to accept these dues. I am
satisfied that Local 1585 deliberately refused to accept Pizzini's dues to provide a pretext
to rid itself of an unwanted member. I am equally satisfied that Local 1585, having expelled
Pizzmi from the Union, endeavored to deprive him of the employment opportunities with the
Companies preempted by the Union for its full-fleged members through the 15-gang hiring
list practice herein found unlawful. This result was accomplished, as shown, by the simple
device of listing the 61-year-old Pizzini as a stevedore on the 15-gang list. In reaching this
conclusion consideration has been given, in addition to circumstances already mentioned, to
the fact that no logical explanation appears for classifying Pizzmi on the 15-gang list as a
stevedore in the face of his more than 30 years' experience as a winch operator. In this
connection I reject the explanation as to Pizzini's alleged private arrangement with other
persons resulting in the forfeiture or voluntary relinquishment of his place on the hiring
list as a winch operator. Were there any validity to this explanation, it would logically follow
that having lost his place, no requirement existed at all for including his name on the 15-gang
list. Yet he was listed as a stevedore. In any event, I credit Pizzini's denials as to the
existence of such arrangements.
I find also that the Companies succumbed to the pressure of Local 1585 to exclude Pizzmi
from their employment, through their participation with Local 1585 in adopting and enforcing
the 15-gang list agreement. No other reason explains their agreement to list him as a steve-
dore when he had worked for them for so many years as a winch operator. Nor has any
reason been advanced to justify their failure to employ him as a winch operator despite his
obvious qualifications for such work and his frequent applications at the piers for employ-
ment in that capacity. Local 1585's opposition to Pizzini's employment as a winch operator
was known to the Companies, as evidenced by the March 10, 1952, incident on their docks
when Castillo, the Local 1585 president, engaged in a near fight with Pizzini to prevent his
employment that day as a winch operator. Moreover, Cummings' statement to Pizzini that he
could not employ him until he was so instructed by his San Juan office also clearly implies
that he was being denied employment for policy considerations which undoubtedly were the
outgrowth of Local 1585's known opposition to his employment.
It is accordingly found that by their joint participation in the preparation of the 15-gang
list, and its subsequent enforcement, Local 1585 and the Companies engaged in conduct
affecting the hire and tenure of Pizzini's employment which was violative of the Act. By its
conduct in this respect, Local 1585 violated Section 8 (b) (2) and 8 (b) (1) (a) of the Act, and
Bull and Waterman each violated Section 8 (a) (3) and 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Bull, Waterman, and Local 1585 set forth in section III, above, occurring
in connection with the operations of these Companies described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the several
States and territories, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It has been found that by the adoption and maintenance of the 15-gang list hiring practices,
and by the classification of Pizzini on the 15-gang list as a stevedore, Bull and Waterman
have each engaged in unfair labor practices within the meaning of Section 8 (a) (3) and
8 (a) (1) of the Act, and Local 1585 has engaged in unfair labor practices within the meaning
of Section 8 (b) (2) and 8 (b) (1) (A) of the Act. It will therefore be recommended that all the
parties herein cease and desist from continuing with the hiring practices found to be unlaw-
ful, or from instituting and maintaining any other hiring practices or device for the prefer-
ment of persons for initial employment by the Companies because of their membership in
BULL INSULAR LINES, INC. 455
Local 1585 or in any other labor organization . It will further be recommended that Local
1585 cease and desist from causing or attempting to cause the Companies to enter upon any
such unlawful hiring arrangement.
It has also been found that as a result of the unlawful hiring practices adopted and main-
tained by the parties , the persons named in the complaint have been discriminated against
in their hire and tenure of employment by denial to them of employment by the Companies
as regular or permanent stevedores and winch operators because of their nonmembership in
Local 1585 . In order to eliminate such discrimination , iswill be recommended that the
Companies include all these persons , as well as all other qualified persons similarly sit-
uated, on any hiring lists to be used by them for the employment of stevedores and winch
operators . Employees to be hired from such lists shall be offered equal work opportunities
in accordance with their special qualifications on a rotation or other nondiscriminatory
basis , with full seniority and other rights as regular or permanent employees , and without
regard to their membership in Local 1585 or any other labor organization , except to the
extent that membership in a labor organization may be required as a condition of employment
pursuant to a valid union-security agreement in accordance with Section 8 (a) (3) of the Act.
The above action recommended with respect to employees shall also apply to Juan Maria
Pizzini. In the case of this employee , it is further recommended that he shall be included on
any hiring lists to be used by the Companies as a winch operator , and shall be offered
employment in that capacity.
The foregoing employees who have sustained losses and earnings as a result of the dis-
crimination against them shall be made whole therefore . As it is apparent that Bull, Water-
man, and Local 1585 are equally responsible for the discrimination against them and their
resultant losses , it will be recommended that the parties jointly and severally make whole
these employees by payment to each of them of a sum of money equal to such amounts as
they normally would have earned through employment with Bull and Waterman absent the
discrimination against them . The period during which these losses are to be computed shall
begin with March 19, 1952 , the date when the 15-gang list became operative , and shall
continue until such time as they shall be placed on a hiring list for regular or permanent
initial employment and are accorded opportunity for such employment regardless of their
Union membership . Liability for back pay shall terminate against Local 1585 five (5) days
after the date upon which it causes notice to be served upon Bull and Waterman that it has
no objection to the regular or permanent employment of the foregoing employees by these
Companies . Said loss of earnings shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company , 90 NLRB 289 ; N. L. R. B . v. Seven-
Up Bottling Co., 344 U. S. 344.
From the extensive violations of the Act herein involved , it may reasonably be anticipated
that the parties will engage in other practices proscribed by the Act. It will, therefore, be
recommended that the parties cease and desist from in any manner infringing upon the rights
guaranteed employees in Section 7 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. Bull Insular Lines, Inc., and Waterman Dock Company, Inc., are each employers
within the meaning of Section 2 (2) of the Act, and are engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Local 1585, Mayaguez Union of the International Longshoreman's, Association, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By agreeing to, maintaining, and enforcing the March 19, 1952, 15-gang list hiring
practice for the employment of stevedores and winch operators, Bull and Waterman have
each engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)
(3) and 8 (a) (1) of the Act.
4. By agreeing to, maintaining, and enforcing the hiring practices referred to in para-
graph 3, above, Local 1585 has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
5. By discriminating in regard to the hire and tenure of employment of the employees
named in the complaint Bull and Waterman have each engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By causing Bull and Waterman to discriminate against the employees named in the
complaint in violation of Section 8 (a) (3) of the Act, Local 1585 has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (b) (2) and 8 (b) (1) (A)
of the Act.
7. By restraining and coercing employees of Bull and Waterman in the exercise of rights
guaranteed in Section 7 of the Act, Local 1585 has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
MIAMI COCA-COLA BOTTLING COMPANY and DISTRICT
LODGE NO. 40, INTERNATIONAL ASSOCIATION OF MA-
CHINISTS, AFL. Case No. 10-CA-1635. April 23, 1954
DECISION AND ORDER
On November 30, 1953, Trial Examiner C . W. Whittemore
issued his Intermediate Report in the above - entitled proceed-
ing, finding that the Respondent had engaged in and was engaging
in certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Reporz attached hereto.
Thereafter , the Respondent filed exceptions to the Intermediate
Report' and a supporting brief.
The Board has reviewed the rulings made at the hearing by
the Trial Examiner and finds that no prejudicial error was
committed . The rulings are hereby affirmed.' The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in the case, andhereby adopts the findings,
conclusions , and recommendations of the Trial Examiner, in-
sofar as they are consistent with the findings and conclusions
made below.
The Trial Examiner found, and we agree , that the attack
by Assistant Superintendent Monk, made 4 days after the
Board's direction of election , in which Monk severly assaulted
i There is an obvious typographical error in the last paragraph of section III, A, of the
Intermediate Report. The first sentence of that paragraph reads: "The attack by Monk
officials was plainly coercive and in restraint of rights guaranteed to employees by Section
7 of the Act." The sentence should read: "The attack by Monk on the Union officials was
plainly coercive and in restraint of rights guaranteed to employees by Section 7 of the Act."
The omission of the underscored words was obviously inadvertent and does not affect our
agreement with the Trial Examiner 's conclusion.
2 We find no merit in Respondent ' s exceptions to the Trial Examiner ' s ruling, affirming
the Regional Director 's disposition of Respondent ' s motion for pretrial discovery and answers
to specific interrogatories . The provision in Section 10(b) of the Act merely provides that any
complaint proceeding shall , so far as practicable , be conducted in accordance with the Federal
Rules of Civil Procedure , and clearly relates to the introduction of evidence before the Board,
and not to pretrial privileges accorded parties to judicial proceedings . Del E. Webb Con-
struction Company, 95 NLRB 377, footnote 2; N. L. R. B. v. Globe Wireless Ltd., 193 F. 2d 748
(C. A. 9).
108 NLRB No. 83.