Lykes Bros. S. S. Co., Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1947

74 N.L.R.B. 55 (N.L.R.B. 1947)

In the Matter of LYKES BROS. S. S. Co., INC., EMPLOYER and UNION
DE EMPLEADOS DE MUELLES DE PUERTO Rico, LOCAL 74, DISTRICT 1
(I. L. W. U.) (C. I. O.-C. G. T.), PETITIoNEx
Case No. 24-R-157.Decided June 11, 1947
Hartzell, Kelly, cC Hartzell, by Messrs. Jose L. Novas and E. Larroca,
of San Juan, P. R., for the Employer.
Messrs. Rodrigo Carreras Valle and J. A. Cintron Rivera, of San
Juan, P. R., for the Petitioner.
Messrs. Eusebio G. Moreno and Hipolito Marcamo, of San Juan,
P. R., for the I. L. A.
Mr. Morton B. Spero, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at San Juan,
Puerto Rico, on February 17, 1947, before Yamil Galib Frangie, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Lykes Bros. S. S. Co., Inc., a Louisiana corporation, is engaged in
the transportation of freight and cargo by steamship between various
ports in the United States and Puerto Rico, including the port of San
Juan, Puerto Rico, with which we are here solely concerned.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization, affiliated with the Interna-
tional Longshoremen's and Warehousemen's Union (C. I. 0.), and
74 N. L. R. B., No. 15. 55
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Confederation General de Trabajadores de Puerto Rico, claiming
to represent employees of the Employer.
International Longshoremen's Association, Local 1674, herein called
the I. L. A., is a labor organization affiliated with the International
Longshoremen's Association, District Council of Puerto Rico, claim-
ing to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On August 16, 1946, the Petitioner filed the instant petition, and
on August 19, 1946, it informed the Employer that it represented a
majority of the Employer's dock employees, and requested the Em-
ployer to recognize it as the exclusive bargaining representative of
these employees. The Employer refused recognition on the ground
that it was in contractual relationship with the I. L. A. with respect
to the requested employees.
At the hearing, the Employer took the position that its -1945 closed-
shop contract with the 1. L. A., as supplemented thereafter, operates
as a bar to this proceeding.1 The 1945 contract was executed on Jan-
uary 1, 1945, and covered, among others, the watchmen and mainte-
nance men involved herein. The supplement thereto was executed
on August 15, 1946, with an effective date of January 1, 1946, and
extended the coverage of the 1945 agreement to delivery clerks, guards,
and other dock employees of the Employer. Although both the
original contract and its supplement had a terminal date of December
31, 1946, it appears that the terms of these contracts have been ex-
tended by the parties thereto on a day-to-day basis, pending the out-
come of negotiations between them, with respect to a new contract.
We are unable to agree with the Employer that these contracts bar a
present determination of representatives. Inasmuch as the initial
term of the contract, as supplemented, has expired, and the agreement
is now being continued on a day-to-day basis, the contractual rela-
tionship between the parties is one of indefinite duration, and, as
such, cannot bar an election at this time.
We therefore find that a question affecting commerce has arisen con-
cerning the representation of employees of the Employer, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.2
' The I L. A. did not urge the contracts as a bar , but instead joined the Petitioner in
requesting an election among the requested employees at this time.
2 The Petitioner has waived any right to object to an election held in the instant pro-
ccedmg on the basis of any of the acts alleged as unfair labor practices in Case No 24-C-
154, filed by it against the Employer on August 19, 1946.
i
LIKES BROS. S. S. CO., INC.
IV. THE APPROPRIATE UNIT
57
The Petitioner requests a unit composed of all receiving, delivery,
and tally clerks, gatemen, watchmen, mechanics, and maintenance
employees of the Employer working in San Juan, Puerto Rico, ex-
cluding the head cargo inspector aboard, head watchman, head store-
room keeper, head paymaster, repairman, liquidator, and timekeeper,
main office and dock employees, clerical employees, weekly salaried
delivery clerks, gate inspectors, acting chief delivery clerks, chief
receiving clerks, pursers, foremen, and all other supervisory em-
ployees. The Employer takes the initial position that a unit limited
to its San Juan employees would be inappropriate for the purposes
of collective bargaining, and maintains that only a unit composed
of all its employees in these categories at all ports on the Island of
Puerto Rico would be appropriate. However, in the event that the
Board rejects its contention as to the scope of the unit, it agrees that
the requested unit is appropriate.
The Employer relies on the bargaining history which the Board con-
sidered in Matter of Bull Insular Line, Inc., et al., 63 N. L. R. B. 154,
and Matter of Bull Insular Line, Inc., et al., 71 N. L. R. B. 38,3 as well
as the 2-year contract and a supplement thereto, referred to in Section
III, supra, in support of its contention that an Island-wide unit is
appropriate.
In the above-mentioned cases, we were concerned with the appro-
priate unit for bargaining purposes for stevedores, bag sewers, and
waterboys on the Island. We there concluded that the bargaining his-
tory, which included the 2-year "Island-wide" contract cited specifically
by the Employer, did not warrant the establishment of an Island-wide
unit of such employees. Rather did we find that this history was indic-
ative of the appropriateness of units confined to separate ports on the
Island. We are now requested to reconsider the bargaining history as
it affects the requested employees, some of whom were bargained for
along with the stevedores over a period of years, and others who were,
at least insofar as the Employer is concerned, first included in the pre-
vailing bargaining pattern in August 1946. However, no evidence
was adduced to indicate why we should now reach a different conclu-
sion with respect to that bargaining history.
Under these circumstances, we find no merit to the Employer's con-
tention that the above history establishes the propriety of an Island-
wide unit for the employees sought herein. On the contrary, in the
.light of our prior decisions, and inasmuch as we have found appropri-
8 Tbe, record in the instant case incorporates by reference the pleadings, records, and
briefs in both cases.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ate at this very port a substantially similar unit to the one sought
herein,4 we are of the opinion that the requested employees may func-
tion together for-collective bargaining purposes.,
Accordingly, we find that all receiving, delivery, and tally clerks,
gatemen, watchmen, mechanics, and maintenance employees of the
Employer working in San Juan, Puerto Rico, excluding the head cargo
inspector aboard, head watchmen, head storeroom keeper, head pay-
master, repairman,5 liquidator," and timekeeper,' main office and dock
employees, clerical employees, weekly salaried delivery clerks,8 gate
inspectors,6 acting chief receiving clerks, pursers, foremen, and all
other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot, subject to the limi-
tations and additions set forth in the Direction.
The Petitioner takes the position that the Board should fix eligi-
bility to vote as of the pay-roll period immediately preceding August
15, 1946, the date of the execution of the supplemental closed-shop
agreement between the Employer and the I. L. A. The Petitioner con-
tends, in this connection, that inasmuch as its members have refused
to join the I. L. A., as required by the supplemental agreement, they
have either lost, or have been unable to obtain, employment status
with the Employer since the execution of that document. It contends
further that the use of a subsequent pay-roll period to determine
eligibility will disenfranchise all such individuals.
We perceive no merit in this argument. Where, as here, an election
is directed based upon'a petition filed during the existence of a valid
closed-shop contract, we have adhered to our usual practice of using
the pay-roll period immediately preceding the Direction of Election
to determine eligibility to vote 10 Accordingly, since no sufficient
Matter of The New York and Porto Rico Steamship Company, and San Antonio Com-
pany, 58 N. L R . B. 1301.
5 Primitivo Franz.
6 Jose A. Dfarerro.
a Rafeal Bravo
8 Jose Belaval , Ramon Leon . William Alverez , and Francisco Trujillo.
0 David Ramirez and Antonio Droz.
10 Matter of California Metal Trades Association, 72 N L. R B 624; Matter of California
State Brewers Institute , 72 N. L. R. B . 665; Matter of Bauer-Schweitzer Hop & Malt Co.,
72 N L. R B. 1223.
LYKES BROS. S. S. CO., INC. 59
reason appears for departing from our customary practice, we shall
direct that employees within the appropriate unit who were employed
during the pay-roll period immediately preceding the issuance of this
Direction of Election shall be eligible to vote.
DIRECTION OF ELECTION"
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Lykes Bros. S. S. Co., Inc., San
Juan, Puerto Rico, an election by secret ballot shall be conducted as
early as possible, but not later than thirty (30) days from the date
of this Direction, ulyder the direction and supervision of the Regional
Director for the Twenty-fourth Region, acting in this matter as agent
for the National Labor Relations Board, and subject to Sections 203.55
and 203.56, of National Labor Relations Board Rules and Regula-
tions-Series 4, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether they desire
to be represented by Union de Empleados de Muelles de Puerto Rico,
Local 74, District I (I. L. W. U.) (CIO-CGT), or by International
Longshoremen's Association, Local 1674 (I. L. A.), for the purposes
of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
"Any participant in the election herein may , upon its prompt request to , and approval
thereof by , the Regional Director , have its name removed from the ballot.