Union de Soldadores, Mecanicos, etc.

National Labor Relations Board - Board Decisions

Feb 26, 1959

122 N.L.R.B. 1603 (N.L.R.B. 1959)

UNION DE SOLDADORES , MECANICOS , ETC. 1603
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring inc
connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in the unfair labor practice
of refusing to bargain collectively with the chosen representative of its employees
in an appropriate unit . It will therefore be recommended that it cease and desist
therefrom and from like and related conduct. It will further be recommended
that the Respondent , upon request , bargain collectively with the Union as the
exclusive representative of its employees in the appropriate unit.
CONCLUSIONS OF LAW
1. United Automobile, Aircraft & Agricultural Implement Workers of America,
UAW-AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. All production and maintenance employees including plant clerical employees
employed at the Respondent 's Rockford , Illinois, plant , but excluding office clerical
employees , professional employees , guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. The said labor organization was on March 6, 1958, and at all times since
then has been, the exclusive representative of all employees in the aforesaid unit
for the purposes of collective bargaining within the meaning of Section 9(a) of
the Act.
4. By refusing on and after March 20, 1958, to bargain collectively with the
aforesaid Union as the exclusive representative of the employees in the aforesaid
appropriate unit, the Respondent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8(a)(5) of the Act.
5. By refusing to bargain with the Union, the Respondent has interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act, thereby engaging in an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Union de Soldadores , Mecanicos, Montadores de Acero, Aux-
iliares y Ramas Anexas , Local 1839, ILA-Ind ., and Inter-
national Longshoremen 's Association , District Council of the
Ports of Puerto Rico, ILA-Ind .' [Sucesores de Abarca, Inc.]
and Luis Rodriguez Arroyo. Case No. 9/.-CB 191. Febru-
ary 26, 1959
DECISION AND ORDER
On February 21, 1958, Trial Examiner Sidney Lindner issued his
Intermediate Report in this case, finding that the Respondents had
engaged in and were engaging in certain unfair labor practices
within the meaning of Section 8 (b) (1) (A) and (2) of the Act, and
recommending that they cease and desist therefrom and take certain
1 Hereinafter referred to as Local 1839 and District Council, respectively.
122 NLRI3 No. 188.
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at this 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, conclusions, and recommenda-
tions of the Trial Examiner,' as modified herein.
THE REMEDY
Having adopted the Trial Examiner's findings that the Respond-
ents violated Section 8(b) (2) and (1) (A) of the Act, to which
findings no exceptions were filed by the Respondents, we will order
that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The District Council, together with Local 1839, was a party to
the union-security contract herein found to be illegal for failure of
Local 1839 to comply with the filing requirements of the Act. Ac-
cording, we will order both Respondents to cease and desist from
giving effect to the illegal union-security provisions of the contract .3
For the reasons stated in Philadelphia Woodwork Company 4 we
would not require reimbursement of moneys paid by employees by
virtue of such contract as recommended by the Trial Examiner.
However, as found by the Trial Examiner, the Respondents did
maintain, apply, and enforce an arrangement with Sucesores de
Abarca, Inc., whereby union members were given hiring preference
and whereby nonmembers were required to obtain union clearance
as a condition of employment. By this illegal hiring arrangement,
Respondents have unlawfully encouraged employees to become union
members in order to obtain employment, thereby inevitably coercing
them into the paying of union initiation fees, dues, assessments, and
other moneys. It would not effectuate the policies of the Act to
permit the retention of such moneys unlawfully exacted from em-
ployees. Therefore, we shall order the Respondents jointly and
severally to refund to the employees of Sucesores de Abarca, Inc.,
the initiation fees, dues, assessments, and other moneys paid by
them as a price for their employment.' In conformity with Sec-
tion 10 (b) of the Act, the Respondents' liability in this connection
2 As indicated above, no exceptions to the Intermediate Report were filed by Respondents.
8 We do not adopt the Intermediate Report to the extent that it implies that the con-
tract was automatically validated upon Local 1839's achievement of compliance on
March 25, 1957. Charles Ostrowski et at., d/b/a Philadelphia Woodwork Company,
121 NLRB 1642.
4 Charles Ostrowski et at ., d/b/a Philadelphia Woodwork Company, supra.
°Local No . 4 50, International Union of Operating Engineers , AFL-CIO ( Tellepsen
Construction Company), 122 NLRB 564.
UNION DE SOLDADORES, MECANICOS, ETC. 1605
shall be limited to moneys collected during the period beginning
6 months before the filing and service on them of the original charge
herein, and terminating on March 25, 1957, the date the illegal
hiring arrangement ceased, as found by the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:.
A. Respondent Union de Soldadores, Mecanicos, Montadores de
Acero, Auxiliares y Ramas Anexas, Local 1839, ILA-Ind., its officers,
representatives, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining,, applying, or enforcing any agreement, under-
standing, or practice with Sucesores de Abarca, Inc., or any other
employer over which the Board will assert jurisdiction, whereby its
members are given preference in hiring and whereby nonmembers are
required to obtain clearances or job referrals as a condition of em-
ployment, except as authorized by Section 8(a) (3) of the Act.
(b) Performing or giving effect to the unlawful union-security
provisions of its collective-bargaining agreement with Sucesores
de Abarca, Inc., or entering into or enforcing any extension, renewal,
modification, or supplement thereof, or any superseding agreement
with this company containing union-security provisions, except in
accordance with Section 8 (a) (3) of the Act.
(c) Causing or attempting to cause Sucesores de Abarca, Inc.,
or any other employer over which the Board will assert jurisdiction,
to discriminate against employees or applicants for employment in
violation of Section 8(a) (3) of the Act.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their rights guaranteed 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
condition of employment,. as authorized by Section 8(a) (3) of the
Act.
2. Take the following action which the Board finds will effectuate
the policies of the Act :
(a) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all records, reports, and other
documents necessary to analyze the amounts of moneys due under
the terms of this Order.
(b) Post at its business offices and meeting halls copies of the
notice attached hereto marked "Appendix A."' Copies of said no-
0In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and. Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice, to be furnished by the Regional Director for the Twenty-
fourth Region , shall, after being duly signed by an authorized
representative of Respondent Local 1839 , be posted by Respondent
Local 1839 immediately upon the receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent Local 1839 to insure
the said notices are not altered , defaced, or covered by any other
material.
(c) Mail to the Regional Director for the Twenty-fourth Region
signed copies of the notice attached hereto as Appendix A for post-
ing at the offices of Sucesores de Abarca , Inc., and project sites where
the said Company is engaged in business within the territorial juris-
diction of Respondent Local 1839 , in places where notices to the
Company's employees are customarily posted, if the said Company
is willing to do so.
(d) Notify the Regional Director for the Twenty-fourth Region
in writing , within 10 days from the date of this Order, what steps
it has taken to comply herewith.
B. Respondent International Longshoremen 's Association , District
Council of the Ports of Puerto Rico, ILA-Ind., its officers, repre-
sentatives , agents, successors , and assigns , shall:
1. Cease and desist from :
(a) Maintaining , applying , or enforcing any agreement , under-
standing , or practice with Sucesores de Abarca, Inc., or any other
employer over which the Board will assert jurisdiction , whereby its
members are given preference in hiring and whereby nonmembers are
required to obtain clearances or job referrals as a condition of
employment , except as authorized by Section 8 (a) (3) of the Act.
(b) Performing or giving effect to the unlawful union-security
provisions of its collective -bargaining agreement with Sucesores de
Abarca, Inc., or entering into or enforcing any extension , renewal,
modification , or supplement thereof, or any superseding agreement
with this Company containing union-security provisions , except in
accordance with Section 8(a) (3) of the Act.
(c) Causing or attempting to cause Sucesores de Abarca, Inc.,
or any other employer over which the Board will assert jurisdiction,
to discharge or refuse to hire any employee or otherwise to discrim-
inate against Luis Rodriguez Arroyo, or any other employee or
applicant for employment , in violation of Section 8 (a) (3) of the Act.
(d) In any other manner interfering with, restraining , or coercing
employees in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
UNION DE SOLDADORES, MECANICOS, ETC. 1607
agreement 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) Make whole Luis Rodriguez Arroyo for any loss of earnings
which he may have suffered because of the discrimination against
him, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all records, reports, and other
documents necessary to analyze the amounts of moneys -due under
the terms of this Order.
(c) Notify, in writing, Sucesores de Abarca, Inc., and Luis
Rodriguez Arroyo that the Respondent District Council has with-
drawn its objection to the hiring or continued employment of Arroyo
by the said Company; and also notify Arroyo, in writing, that
henceforth it will not coerce or restrain him by unlawfully denying
to him a work referral letter or by otherwise interfering with the
rights guaranteed to him by Section 7 of the Act.
(d) Post at its business offices and meeting halls copies of the
notice attached hereto marked "Appendix B." 7 Copies of said
notice, to be furnished by the Regional Director for the Twenty-
fourth Region, shall, after being duly signed by an official repre-
sentative of the Respondent District Council, be posted by the
Respondent District Council immediately upon the receipt thereof
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent District Council to insure that said notices are not altered,,
defaced, or covered by any other material.
(e) Mail to the Regional Director for the Twenty-fourth Region
signed copies of the notice attached hereto as Appendix B for
posting at the offices of Sucesores de Abarca, Inc., and project sites
where the said Company is engaged in business within the territorial
jurisdiction of Respondent District Council, in places where notices
to the Company's employees are customarily posted, if the said
Company is willing to do so.
(f) Notify the Regional Director for the Twenty-fourth Region
in writing, within 10 days from the date of this Order, what steps
it has taken to comply herewith.
IT Is FURTHER ORDERED that the Respondents, Union de Soldadores,
Mecanicos, Montadores de Acero, Auxiliares y Ramas Anexas, Lo-
T See footnote 6.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cal 1839, ILA-Ind., and International Longshoremen's Association,
District Council of the Ports of Puerto Rico, ILA-Ind., their officers,
representatives, agents, successors, and assigns, jointly and severally
shall refund to all present and former employees of Sucesores de
Abarca, Inc., any initiation fees, dues, assessments, or any other
moneys they were illegally required to pay Respondents in order
to secure or retain employment with said Company under the illegal
hiring arrangement between the Respondents and the Company, as
provided in the section herein entitled "The Remedy."
CHAIRMAN LEEDOM took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS AND EMPLOYEES OF SUCESORES DE ABARCA, 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, we hereby give notice that:
WE WILL NOT maintain, apply, or enforce any agreement,
understanding, or practice with Sucesores de Abarca, Inc., or
any other employer over which the Board will assert jurisdic-
tion, whereby our members are given preference in hiring and
whereby nonmembers are required to obtain clearances or job
referrals from us as a condition of employment, except as au-
thorized by Section 8(a) (3) of the Act.
WE WILL NOT perform or give effect to the unlawful union-
security provisions of our collective-bargaining agreement with
Sucesores de Abarca, Inc., or enter into or enforce any extension,
renewal, modification, or supplement thereof, or any superseding
agreement with the said Company containing union-security
provisions, except in accordance with Section 8(a) (3) of the Act.
WE WILL NOT cause or attempt to cause Sucesores de Abarca,
Inc., or any other employer over which the Board will assert
jurisdiction, to discriminate against employees or applicants for
employment in violation of Section 8(a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees
in the exercise of their rights guaranteed 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 condition of employment as authorized by Section 8(a) (3) of
the Act.
WE WILL refund to all employees of Sucesores de Abarca, Inc.,
any initiation fees, dues, assessments, or other moneys they were
UNION DE SOLDADORES, MECANICOS, ETC. 1609
illegally required to pay in order to secure or retain employment
with the said Company under the illegal hiring arrangement
between our Union and the said Company.
UNION DE SOLDADORES, MECANICOS, MONTADORES
DE ACERO, AUXILIARES Y RAMAS ANEXAS, LOCAL
1839, ILA-IND.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for GO days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS AND EMPLOYEES OF SUCESORES DE ABARCA, 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, we hereby give notice that :
WE WILL NOT maintain, apply, or enforce any agreement,
understanding, or practice with Sucesores de Abarca, Inc., or
any other employer over which the Board will assert jurisdic-
tion, whereby our members are given preference in hiring and
whereby nonmembers are required to obtain clearances or job
referrals from us as a condition of employment, except as au-
thorized by Section 8(a) (3) of the Act.
WE WILL NOT perform or give effect to the unlawful union-
security provisions of our collective-bargaining agreement with
Sucesores de Abarca, Inc., or enter into or enforce any extension,
renewal, modification, or supplement thereof, or any superseding
agreement with the said Company containing union-security
provisions, except in accordance with Section 8(a) (3) of the Act.
WE WILL NOT cause or, attempt to cause Sucesores de Abarca,
Inc., or any other employer over which the Board will assert
jurisdiction, to discriminate against Luis Rodriguez Arroyo, or
any other employee or applicant for employment, in violation of
Section 8(a) (3) of the Act.
WE WILL notify, in writing, Sucesores de Abarca, Inc., that we
have withdrawn our objection to the hiring, or continued em-
ployment, of Luis Rodriguez Arroyo.
WE WILL notify, in writing, Louis Rodriguez Arroyo, that we
have withdrawn our objection to his employment with Sucesores
de Abarca, Inc., and that henceforth we will not coerce or re-
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strain him by discriminatorily denying to him a clearance or
a work referral slip or by otherwise interfering with his rights
in Section 7 of the Act.
WVE WILL make whole Luis Rodriguez Arroyo for any loss of
pay he may have suffered as a result of the discrimination
against him.
AVE WILL NOT in any other manner interfere with, restrain, or
coerce employees of Sucesores de Abarca, Inc., in the exercise
of rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized by Section 8(a) (3) of the Act.
WE WILL refund to all employees of Sucesores de Abarca, Inc.,
any initiation fees, dues, assessments, or other moneys they were
illegally required to pay in order to secure or retain employment
with the said Company under the illegal hiring arrangement
between our Union and the said Company.
INTERNATIONAL LONGSIIOREMEN'S ASSOCIATION,
DISTRICT COUNCIL OF TIIE PORTS OF PUERTO
Rico, ILA-IND.,
Labor Organization.
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 and an amended charge filed by Luis Rodriguez Arroyo, the
General Counsel for the National Labor Relations Board, by the Regional Director
for the Twenty-fourth Region, on October 31, 1957, issued a complaint against the
above-named Respondents, herein referred to as Local 1839 and ILA District
Council, respectively, alleging that they had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A)
and 8(b)(2), and Section 2(6) and (7) of the National Labor Relations Act, 61
Stat. 136, herein called the Act.
In substance, the complaint, as amended at the hearing, alleged that: (1) Re-
spondents Local 1839 and ILA District Council since on or about March 19, 1956,
restrained and coerced employees in the exercise of the rights guaranteed them
in Section 7 of the Act and have caused and are causing, or attempting to cause,
Sucesores de Abarca, Inc., herein referred to as Abarca, to discriminate against
employees in violation of Section 8(a)(3) of the Act by (a) between March 19,
1956, and May 8, * 1957, maintaining in effect, applying, and enforcing an arrange-
ment or understanding with Abarca whereby members of Local 1839 were given
preference in the performance of ship repair and maintenance work, and whereby
nonmembers were required to obtain clearance and approval from said Respondents
as a condition for the performance of ship repair and maintenance work, and
whereby nonmembers were required by pay a work fee of 50 cents per week to
Respondent Local 1839 as a condition of performing ship maintenance and repair
work; (b) executing and maintaining, in effect, a collective-bargaining contract with
Abarca dated November 16, 1956, to expire on June 30, 1958, covering the work
UNION DE SOLDADORES , MECANICOS, ETC. 1611
of its ship repair and maintenance employees, which contract contained a union-
security clause requiring said employees to become members of Local 1839 as a
condition of employment, notwithstanding that said Respondent Local 1839 was
not, either at the time of the execution of said contract or at any time during a
year prior thereto, in compliance with the provisions of Section 9(f), (g), and (h)
of the Act; (c) since November 16, 1956, applying the union-security clause of its
contract so as to require employees to maintain their membership in and pay
monthly dues to Local 1839 and a per capita fee to Respondent District Council
ILA as conditions of obtaining preferential or other employment in ship repair
and maintenance work with Abarca; (2) Respondent ILA District Council since
on or about August 4, 1956, caused or attempted to cause Abarca to discriminate
against Luis Rodriguez Arroyo in regard to his hire or tenure of employment with
Abarca, thereby causing or attempting to cause Abarca to violate Section 8(a)(3)
of the Act by (a) causing Abarca to lay off Arroyo on or about August 4, 1956,
because he failed or refused to pay an initiation fee and monthly dues to ILA
Local 1575, another local affiliated with Respondent ILA District Council; (b) caus-
ing Abarca thereafter to refuse to hire Arroyo because he failed or refused to pay
an initiation fee and monthly dues to ILA Local 1575; (c) causing Abarca to re-
quire Arroyo to obtain clearance, approval, and consent from Respondent ILA
District Council as a condition of his employment on ship repair and maintenance
work; and (3) by each of these acts, Respondents violated Section 8(b)(1)(A) and
(2) of the Act. Copies of the charge and amended charge, complaint, and notice
of hearing were duly served upon the parties. Respondent Local 1839 filed its
answer in which it denied the commission of any unfair labor practices. Respond-
ent ILA District Council failed to file an answer. Counsel for the General Counsel
moved for summary judgment against Respondent ILA District Council. This
matter will be taken up separately hereinafter.
Pursuant to notice, a hearing was held in Santurce, Puerto Rico, on Decem-
ber 11, 17, and 18, 1957, before the duly designated Trial Examiner. The General
Counsel and Respondent Local 1839 were represented by counsel and were afforded
full opportunity to be heard, to examine and cross -examine witnesses , and to in-
troduce evidence pertinent to the issues. The General Counsel presented brief oral
argument at the close of the hearing.
Upon the entire record in the case and from my observation of the demeanor
of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Sucesores de Abarca, Inc., is a corporation of the Commonwealth of Puerto
Rico, engaged in the manufacture and sale of machinery, machine parts, and other
iron and steel equipment to commercial and industrial concerns. In connection
with its. business operations, it furnishes machinery, machine .parts, and other iron
and steel equipment to industrial and commercial concerns and also performs
machine repair and maintenance services for various shipping companies engaged
in interstate and foreign commerce and to branches of the armed services of the
United States Government. During the year 1956, it manufactured, sold, and
shipped machinery, machine parts, and other iron and steel equipment valued at
in excess of $1,000,000. During the same period, it manufactured, sold, and
shipped machinery, machine parts, and other iron and steel equipment valued at
in excess of $600,000 to customers located in foreign countries. During the same
period, it provided ship machinery, machine parts, and machine maintenance and
repair services to shipping companies engaged in interstate and foreign commerce
and to branches of the armed services of the United States Government in connec-
tion with its National Defense Program, which was valued at in excess of $100,000.
It is admitted and I find that at all times material herein, Abarca has been engaged
in commerce and operations affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
The Respondents, Union de Soldadores, Mecanicos, Montadores de Acero, Auxi-
liares y Ramas Anexas, Local 1839, ILA-Ind., and International Longshoremen's
Association, District Council of the Ports of Puerto Rico, ILA-Ind., are and at
all times material herein have been labor organizations within the meaning of
Section 2(5) of the Act.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
The Motion for Summary Judgment Against International Longshoremen's
Association, District Council of the Ports of Puerto Rico, ILA-Ind.
On November 26, 1957, the General Counsel filed with the Regional Director
for the Twenty-fourth Region a motion for summary judgment against Respondent
ILA District Council, setting forth, among other grounds, that said Respondent
had not filed an answer to the complaint issued on October 31, 1957, as required
by Section 102.20 of the Board's Rules and Regulations, Series 6, as amended.'
In due course the motion was referred to me for ruling. On December 2, 1957,
I issued an order to show cause, which was duly served on the Respondents and
the Charging Party, directing Respondent ILA District Council to show good cause
on December 11, 1957, why said motion should not be granted and why the sched-
uled hearing should not be canceled and withdrawn as to it. On the return date
of the order to show cause, no answer having as of that date been filed by Re-
spondent ILA District Council and no representative appearing in behalf of said
Respondent, counsel for the General Counsel renewed her motion requesting that
the facts alleged in the complaint be deemed to be admitted as true by Respondent
ILA District Council and be so found, and that an order be issued based on said
facts, remedying the unfair labor practices alleged in the complaint to have been
committed by said Respondent.
In support of the motion the General Counsel submitted the following:
(1) The complaint, notice of hearing and copies of charges were served by
post-paid registered mail on the Respondents and Charging Party on October
31, 1957.
(2) Return postal receipt for registered article showing receipt on Novem-
ber 1, 1957, of one set of documents last mentioned by E. Moreno, president
of Respondent ILA District Council.
(3) Letter in Spanish dated November 20, 1957, by Salvatore Cosentino,
Regional Director, the English translation of which is as follows:
INTERNATIONAL LONGSHOREMEN'S Assoc.
District Council of the Ports of P. R. ILA Ind.
P. O. Box 2374
San Juan, P. R.
Re Union de Soldadores, Mecanicos,
Montadores de Acero, etc.
Case No. 24-CB-191
GENTLEMEN: On November 1, 1957, you were served with copy of the
complaint and notice of hearing in the above-captioned case. The notice
of hearing clearly informed you that unless you filed a written answer
to each of the allegations of the complaint within ten days from the date
of receipt of same, the allegations of the complaint shall be deemed ad-
mitted. The time to answer the complaint expired on November 10, 1957.
Under these circumstances, unless you file an answer at this office be-
fore 5 P.M. of next Monday, November 25, with an explanation addressed
to the Regional Director as to why you failed to file the answer within
the period of ten days required by the Board's Rules and Regulations,
this office shall file a motion with the Trial Examiner's Division request-
ing that an order be issued to the effect that the allegations of the com-
plaint have been admitted by you and that summary judgment be entered
against you.
(4) Return postal receipt for registered article showing above letter was
received on November 22, 1957, by Pedro Cortes, financial secretary of Re-
spondent ILA District Council.
1"See. 102.20 Answer to complaint; time for filing; contents; allegations not denied
deemed admitted: -The respondent shall, within 10 days from the service of the complaint,
file an answer thereto. The respondent shall specifically admit, deny, or explain each of
the facts alleged In the complaint, unless the respondent Is without knowledge, In which
case the respondent shall so state, such statement operating as a denial. All allegations
in the complaint, if no answer is filed, or any allegation in the complaint not specifically
denied or explained in ah answer filed, unless the respondent shall state in the answer
that he is without knowledge, shall be deemed to be admitted to be true and shall be so
found by the Board, unless good cause to the contrary is shown."
UNION DE SOLDADORES, MMECANICOS , ETC. 1613
(5) Motion for summary judgment and letter dated November 26, 1957,
addressed to the parties advising that the motion has been referred to the
Trial Examiner Division for ruling.
(6) Return postal receipt for registered article showing documents enumer-
ated in ( 5) above were received on November 29, 1957, by Pedro Cortes,
financial secretary of Respondent ILA District Council.
( 7) Order to show cause dated December 2, 1957.
(8) Return postal receipt for registered article showing above was received
on December 5, 1957, by Pedro Cortes , financial secretary of Respondent ILA
District Council.
Based upon all of the above , the Motion for Summary Judgment against
Respondent ILA District Council was granted.
At the opening of the hearing on December 17, 1957, Guillermo Ortiz, treasurer
of Respondent ILA District Council , asked for a postponement of the hearing to
enable Moreno to appear in the instant proceeding . He claimed Moreno was in-
volved in a matter before the Federal District Court in Puerto Rico. Ortiz stated
he had previously talked with Vincent Rotolo, chief law officer , Twenty-fourth
Region, regarding an extension of time to answer , on the ground that Moreno had
been busy in the Federal District Court and did not go to the post office to get the
District Council's mail .2 Ortiz was advised by Rotolo that the matter had already
been referred to the Trial Examining Division in Washington.
It was explained to Ortiz that he submitted no valid reason to induce me to
change my ruling, and that the motion for summary judgment previously granted
against Respondent ILA District Council stood . See Liquid Carbonic Corporation,
116 NLRB 795.
Union de Soldadores , Mecanicos , Trabajadores de Acero, Auxiliares y Ramas
Anexas , ATUC, ILA-AFL, an affiliate of the Amalgamated Trades Union Council,
ILA-AFL, was certified by the Board in 1952 as the collective-bargaining repre-
sentative of the intermittent employees of Sucesores de Abarca, Inc.3 In 1953
when the Amalgamated Trades Union Council, ILA-AFL, went out of existence,
Respondent Local 1839 became the successor of the above -named local union and
affiliated itself with ILA District Council of the Ports of Puerto Rico, ILA-Ind.
On November 16, 1956, Respondent Local 1839 and Respondent ILA District
Council , both represented by their authorized officers, Rafael Pillot and E. G.
Moreno, respectively , entered into a collective -bargaining agreement with Abarca
to expire June 30, 1958 , covering the unit of intermittent employees . The agree-
ment contained , among other clauses, one for a union shop and for a checkoff of
union dues.
Agapito Tavarez, president of Respondent Local 1839, who was installed in
office November 26, 1956, testified that in January 1957, he delivered to Abarca
written authorizations which were voluntarily obtained from the union members
to have their dues checked off and paid over to the Union. Fernando Rovira,
secretary of Abarca , testified that in accordance with the checkoff clause in the
contract , the Company has checked off dues since January 1957.
There was received in evidence , without objection , an affidavit of Salvatore
Cosentino , Regional Director for the Twenty -fourth Region , regarding the com-
pliance status of Respondent Local 1839 . In sum, the affidavit sets forth the
following:
1. Respondent Local 1839 was originally organized sometime prior to
November 1953, as an affiliate of the Amalgamated Trades Union Council,
ILA-AFL, and that following the dissolution of the Amalgamated Trades
Union Council in 1953 , it affiliated itself with the ILA District Council of the
Ports of Puerto Rico, ILA-Ind.
2. That during the period prior to March 22, 1954, it was out of com-
pliance with Sections 9(f), (g) and (h) of the Act; that on March 22 , 1954, it
As heretofore noted , all of the correspondence with respect to the instant proceeding
was sent registered mail to the District Council and the return postal receipts for regis-
tered articles reveal that the same were received by an officer of the District Council
within a day or two after mailing . In fact, the complaint , notice of hearing , and copies
of charges were received by none other than Moreno on November 1, 1957.
3 Abarca has in its employ shopworkers who work regularly in its foundry and in build-
ing and repairing machinery. On occasion the regular employees are assigned to mainte-
nance and repair work on ships. Intermittent employees work exclusively on ship repairs
either in drydock or aboard ship . The intermittent employees do not work when there
are no ships to be repaired or maintained.
505395-59-vol . 122-103
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complied only with the provisions of Section 9(f) and (g) of the Act, remaining
out of compliance with Section 9(h) of the Act until July 22, 1954; that on
November 20, 1954, it again lapsed its 9(h) compliance and remained out of
compliance with this section of the Act until December 1, 1954.
3. That on December 31, 1954, its, 9(f) and (g) compliance lapsed and that
it remained out of compliance with these sections of the Act until March 27,
1957.
4. That either as an independent labor organization or as an affiliate of the
ILA District Council or of ILA Independent International Union it was out
of compliance with Sections 9(f) and (g) of the Act between December 31,
1954, and March 27, 1957.
5. That since becoming an affiliate of the ILA International Union on
May 6, 1956, it was also out of compliance with Section 9(h) between No-
vember 29, 1957, and December 2, 1957.
Jorge Landing, counsel for Respondent Local 1839, stated that he conferred at
the hearing with Tavarez regarding the above-noted affidavit. Upon the basis of
such discussion, he further stated the affidavit was accepted by Respondent Local
1839 as a true statement of its compliance status.
It is thus clear that neither on the controlling date, November 16, 1956, when
the above-noted collective-bargaining agreement was entered into, nor within the
preceding 12-month period, was Respondent Local 1839 a complying union within
the meaning of the Act. Section 8(a)(3) of the Act authorizes an employer to
sign a union-shop agreement with a labor organization, "if such labor organization
. has at the time the agreement was made or within the preceding twelve months
received from the Board a notice of compliance with section 9(f), (g), and (h).
11 I find, therefore, that the union-security clause of the said contract was un-
lawful. See H. O. Wheeler et al., d/b/a Tacoma Harbor Lumber and Timber Co.,
108 NLRB 912.
With regard to the hiring of intermittent employees prior to March 25, 1957,
Tavarez or his predecessor in office received a notice from Abarca to the effect
that on a certain day and hour it had need of a specified number of riggers, boiler
mechanics, laborers, and other type mechanics, without naming them. Upon re-
ceipt of such notice, Tavarez talked with several members of Respondent Local
1839 who in turn spread the word to other union members. Tavarez testified that
only members of Local 1839 were told of the available jobs. On the reporting
date, the prospective intermittent employees gathered together either at the Abarca
gate or at the drydock. Usually, Superintendent Jose Iguina or Foreman Luis
Diaz had a personnel list prepared and selected the men for the jobs. Tavarez
admitted that he assisted in the selection of intermittent employees for particular
jobs and also informed Iguina and Diaz regarding the union status of the men.
Tavarez stated that Local 1839 members were always given preference in the
selection, and only in the event that there were not sufficient Local 1839 members
for available jobs was resort had to the hiring of nonunion men. Rovira also ad-
mitted that if a Local 1839 member had a particular skill which Abarca needed,
he was given preference over a nonunion man. Tavarez further admitted that if
Abarca hired a nonunion worker when a union member was available, he called
this matter to the Company's attention, with the result that the nonunion worker
was removed and the job given to a member.
Luis Rodriguez Arroyo is a member in good standing of Respondent Local 1839.
During 1955 and 1956, Arroyo worked for Abarca and for the Puerto Rico Dry-
dock Company. He testified that while employed at the Puerto Rico Drydock
Company, he paid a fee of 10 cents to Respondent ILA District Council for each
day that he worked, even though he paid his dues regularly to Local 1839.4
In July 1956, while on vacation from Puerto Rico Drydock Company, Arroyo
obtained employment with Abarca as a mechanic, intermittent employee.
On August 3, 1956, in accordance with a written request received from ILA
Local 1575, signed jointly by Ortiz and Moreno, the Puerto Rico Drydock
Company discharged Arroyo from its employ.5
On August 4, 1956, Arroyo was discharged by Abarca at Moreno' s request.
Arroyo conferred with Abarca's personnel manager, Machicote, and showed Machi-
4 Local 1575 ILA-Ind., whose president is Guillermo Ortiz, is the collective-bargaining
representative of the Puerto Rico Drydock employees. Ortiz is also treasurer of Respond-
ent ILA District Council.
5 This discharge is the subject of another unfair labor practice proceeding involving the
Puerto Rico Drydock & Marine Terminals, Inc., ILA Local 1575, and ILA District Council
as Respondents, Cases Nos, 24-CA-803 and 24-CB-190 (123 NLRB No. 160).
UNION DE SOLDADORES, MECANICOS, ETC. 1615
cote that he was a member in good standing in Local 1839, with his union dues
paid in full. Machicote told Arroyo that even though Abarca thought well of
Arroyo's abilities and there was work for him, it was unable to keep him in its
employ because Moreno would not permit it and it did not want trouble with
Moreno.
Although numerous efforts have been made by Arroyo and by Tavarez in his
behalf, to obtain further work at Abarca, he was told he could not be employed
until he obtained a letter of clearance from Moreno. Such letter has not been
forthcoming in spite of several calls at Moreno's home and at the ILA District
Council's office by Arroyo and Tavarez.6
Based upon the foregoing acts and conduct, and upon the entire record, I con-
clude and find that Respondent ILA District Council, by causing Abarca to dis-
criminate with respect to Arroyo's tenure of employment within the meaning of
Section 8(a)(3) of the Act, has itself engaged in conduct violative of Section 8(b)(2)
and 8(b)(1)(A) of the Act. I further conclude and find that by the acts and conduct
above, Respondents violated Section 8(b)(2) of the Act and have restrained and
coerced employees in the exercise of the rights guaranteed by Section 7 of the Act,
thereby violating Section 8(b)(1)(A) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents, set forth in section III, above, occurring in con-
nection with the operations of the Company, described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and the Commonwealth of Puerto Rico and tend to lead to
labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices, I shall
recommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent ILA District Council caused Abarca to discrimi-
nate against Arroyo with respect to his tenure of employment by Abarca on and
after August 4, 1956, it is recommended that Respondent ILA District Council
make him whole for any loss of pay suffered by him as a result of its unlawful
conduct, by payment to him of a sum of money equal to the amount he normally
would have earned as wages from August 4, 1956, absent the unfair labor practices
of Respondent ILA District Council as heretofore found. In computing the amount
of back pay, the customary formula of the Board set forth in F. W. Woolworth
Company, 90 NLRB 289, shall be followed.
The General Counsel argued that since the union dues of members of Respond-
ent Local 1839 were checked off by Abarca pursuant to the union-security clause
in an illegal contract,7 the remedy should include the reimbursement of checked-off
dues. The General Counsel did not adduce specific evidence of coercion or evi-
dence that the dues payments were required as a condition of employment. Indeed,
the record reveals only that the check-off authorizations were voluntarily given by
its members working at Abarca to Local 1839. Nevertheless, in accordance with
the Board's decisions in G. S. Brown-E. F. Olds Plumbing & Heating Corporation,
115 NLRB 594; Broderick Wood Products Company, 118 NLRB 38; and Unit
Parts Company, 119 NLRB 222, I recommended that Respondent Local 1839 re-
fund to all present and former employees all dues deducted from their earnings
during the period January 1957 to March 25, 1958,8 which Respondent Local 1839
has collected from Abarca.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
6 Counsel for the General Counsel made a motion at the completion of her case to amend
the complaint to strike from paragraph V the word "Respondents" and insert instead
"Respondent ILA District Council." Based on the proof adduced which showed that
Respondent Local 1839 did not cause Abarca to discharge Arroyo and in fact revealed
that Tavarez took affirmative steps to assist Arroyo in his efforts to obtain further
employment with Abarca, the said motion was granted.
P Respondent Local 1839 as heretofore found was not in compliance with Section 9(f).
(g), and (h) of the Act on November 16, 1956, when the contract with Abarca was
executed or within the preceding 12 months.
9 The record reveals that no dues were checked off prior to January 1957. March 25,
1957, Is the date Local 1839 came into compliance with the Act.
1616 DECIS16NS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Sucesores de Abarca , Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Respondent Union de Soldadores , Mecanicos , Montadores de Acero , Auxiliares
y Ramas Anexas, Local 1839 , ILA-Ind., and Respondent International Longshore-
men's Association , District Council of the Ports of Puerto Rico , ILA-Ind., are
labor organizations within the meaning of Section 2(5) of the Act.
3. By maintaining in effect , applying, and enforcing an arrangement or under-
standing with Abarca between March 19, 1956, and March 25, 1957, whereby its
members were given preference in the performance of ship repair and maintenance
work, and whereby nonmembers were required to obtain clearance and approval
from it as a condition for the performance of ship repair and maintenance work,
and by executing and maintaining in effect a collective -bargaining contract with
Abarca dated November 16, 1956 , to expire on June 30, 1958 , which contract
contains a union-security clause requiring intermittent ship repair and maintenance
employees of Abarca to become members of Local 1839 , notwithstanding that said
Local was not either at the time of the execution of said contract or within the
preceding 12-month period prior thereto in compliance with the provisions of
Section 9(f), (g), and (h) of the Act , Respondents have engaged in unfair labor
practices within the meaning of Section 8(b)(2) of the Act.
4. By causing Abarca to discriminate against Luis Rodriguez Arroyo in violation
of Section 8(a)(3) of the Act, Respondent ILA District Council has engaged in
unfair labor practices within the meaning of Section 8(b)(2) of the Act.
5. By coercing and restraining employees of Abarca in the exercise of rights
guaranteed in Section 7 of the Act , Respondents have engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Seattle Automobile Dealers Association and Gladys Cocks, Peti-
tioner and Clerical Workers Division A of Automobile Drivers
and Demonstrators Union , Local No. 882, Chartered by the
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Independent. Case No.
19-RD-126. February 26, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before William Gilbert
Nowell, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to Section 3(b) of the National Labor Relations Act,
the Board has delegated its powers herein to a three-member panel
[Chairman Leedom and Members Rodgers and Jenkins].
The Union moves that the petition should be dismissed because
(1) Gladys Cocks, the Petitioner, is a confidential employee; (2) the
petition was employer sponsored; (3) there was supervisory assist-
ance in securing signatures in support of the petition; and (4) there
is a contract bar to an election at this time.
As to„(1),the record shows that Cocks is an office secretary in the
employ of'one of the. Association's members . Although she did some,
122 NLRB No. 191.