The New York & Porto Rico Steamship Co., et al.

National Labor Relations Board - Board Decisions

Feb 28, 1949

81 N.L.R.B. 1034 (N.L.R.B. 1949)

In the Matter of THE NEW YORK & PORTO Rico STEAMSHIP COMPANY,
ET AL .,1 EMPLOYERS and ASSOCIACION INSULAR DE GUARDIANES DEL
FRENTE PORTUARIO DE PUERTO RICO ,2 PETITIONER
Case No. 38-RC-45.-Decided February 28, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition duly filed, a hearing was held before a
hearing officer of the National Labor Relations Board. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel, consisting of Chairman Herzog and
Members Houston and Murdock.
Upon the entire record in this case,3 the Board finds:
1. The Employers are engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization named below claims to represent certain
employees of the Employers.
3. The question concerning representation :
The Employers refuse to recognize the Petitioner as the exclusive
bargaining representative of the guards of the Employers until the
Petitioner has been certified by the Board in an appropriate unit.
I The following Employers are also involved in this proceeding • The San Antonio
Company , Waterman Dock Company , Inc , San Juan Mercantile Corporation ; Pope &
Talbot Lines ( formerly known as McCormick Steamship Company ) , Lykes Line Agency,
Inc. , Bull Insular Line , Inc. ; Felix Benitez Rexach , Inc , Pier 3 , Inc. , The Insular Dock
Company ; Pyramid Dock Company, Inc , The Porto Rico Coal Company, The Porto Rico
Lighterage Company ; and Puerto Rico Steamship Operators Association
2 The translation of the Petitioner 's name is . "Insular Association of Guards on the
Waterfront of Puerto Rico."
3 In accoid with the stipulation of the parties , the record in each of the following cases,
insofar as it relates to the history of collective bargaining among stevedores and related
workers of the Employers , is incorporated and made part of the record in the instant
proceeding : Matter of Bull-Insular Line, Inc , 56 N L . R B. 189 ; Matter of The New York
.4 Porto Rico Steamship Company, 58 N L R B 1301 , Matter of Bull Insular Line, Inc.,
63 N L . R. B 154 ; and Matter of Bull Insular Line, Inc ., 71 N. L. R B 38.
81 N. L. R. B., No. 159.
1034
THE NEW YORK & PUERTO RICO STEAMSHIP COMPANY 1035
At the hearing, the Employers requested that the Board pass upon
the eligibility of the Petitioner to represent the guards in view of
the requirements of Section 9 (b) (3) of the Act. That section pro-
vides, inter alia, that "no labor organization shall be certified as the
representative of . . . guards if such organization admits to mem-
bership, or is affiliated directly or indirectly with an organization
which admits to membership, employees other than guards."
The Petitioner was organized on August 15, 1948, for the exclusive
purpose of representing guards employed on the waterfront of Puerto
Rico.4 It adopted its own constitution and bylaws, elected its own
officials, and established a separate business office. The record in-
dicates that the Petitioner neither sought, nor was granted, a charter
by any other labor organization., Moreover, the Petitioner's officials
who were members of other unions formally resigned from such or-
ganizations,5 and no financial assistance, other than the guards' dis-
tributive shares of the assets of their former unions, was received
from any other labor organization.
In view of the foregoing and upon the entire record in the case, we
are of the opinion that the Petitioner does not admit to membership
employees other than guards, and that it is neither directly nor in-
directly affiliated with any other labor organization. Accordingly,
we find that the Petitioner is qualified, within the meaning of Section
9 (b) (3) of the Act, to be certified as a statutory representative of
guards.°
We further find that a question affecting commerce exists concern-
ing the representation of certain employees of the Employers, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
We find substantially in accordance with the agreement of the
parties that all guards on board (watching holds) or cargo inspectors
aboard,' dock guards, and gangway watchmen, employed by the Em-
ployers in San Juan, Ponce, Mayaguez, and all other ports in Puerto
4 On August 10, 1948, shortly before the organization of the Petitioner, the unions
which had theretofore represented the guards along with other employees of the Em-
ployers executed a collective bargaining agreement with the Employers wherein the unions
in effect disclaimed all interest in the guards as of August 21, 1948.
It appears that the presidents of two labor organizations, Union de Empleados de
Muelles, CGT, and International Longshoremen's Association, District Council No 1, have
served as advisers to the Petitioner during its organizational stages. However, it further
appears that these officials have acted in their individual capacities, rather than as rep-
resentatives of their own unions; that they have not occupied official positions in the
Petitioner; and that they have received no remuneration whatsoever for their services.
Cf Matter of Chrysler Corporation, 79 N. L R B 462
The parties herein stipulated that the cargo inspectors abroad, similar to the other
employees in the agreed unit, are guards engaged in enforcing against other employees
and other persons rules to protect the property of the Employers and to protect the safety
of persons on the Employers ' premises.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rico, but excluding gatemen,' professional employees, 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.'
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employers, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, 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, and also exclud-
ing employees on strike who are not entitled to reinstatement, to de-
termine whether or not they desire to be represented, for purposes
of collective bargaining, by Association Insular de Guardianes del
Frente Portuario de Puerto Rico.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.
8
The parties agreed that the status of the Employers' gatemen should be determined
for the purposes of this proceeding by the decision of the Board in Matter of Bull Insular
Line, Inc, et at, 38-UA-69, and Matter of New York and Porto Rico Steamship Co.,
et at, 38-UA-70 It has been ruled in those cases (unpublished Decision and Certifi-
cation of Results, dated December 31, 1948) that the gatemen are not "guards" within
the meaning of the Act and, accordingly, we have excluded the gatemen from the above
unit.
9 We are aware that in the cases cited in footnote 3, supra, we directed elections in units
of employees of the principal Employers, which were less comprehensive in scope than
that found appropriate above However, the record in the instant proceeding fails to
disclose any persuasive reason for not acceding to the primary desires of the parties
herein to establish a multiple-employer, island-wide unit of guards. Thus, it appears that
all the separate Employers are now members of the Puerto Rico Steamship Operators,
Association, formally organized on November 10, 1948, and a party herein, which has
authority, inter alia, to negotiate for its members, and to bind them in advance to adhere
to the results of such bargaining. (Cf Matter of Bull-Insular Line, Inc., 56 N L. R. B.
189, 193 ) Moreover, in connection with the history of collective bargaining, the most
recent agreement, apparently covering almost all the Employers' dock workers (including
guards, until August 21, 1948), was executed on August 10, 1948, on a multiple-employer,
island-wide basis Furthermore, with particular respect to the guards, the record shows
that there is substantial uniformity of wages, hours, and other conditions of employment
among these employees of the Employers in all the ports of Puerto Rico, and that, as
to certain Employers, there is some interchange of guards between the ports.