Wirshing & Co.Download PDFNational Labor Relations Board - Board DecisionsMay 28, 194349 N.L.R.B. 1273 (N.L.R.B. 1943) Copy Citation In the Matter Of WIRSHING & COMPANIA, S. EN C., (SOCIEDAD EN COMANDITA) and UNION DE TRABAJADORES DE LA INDUSTRIA Azu- CARERA, PONCE LOCAL (C. G. T.) In the Matter of SUCESION J. SERRALLES AND PORTO RICAN AMERICAN SUGAR REFINERY , INC. and UNION DE TRABAJADORES DE LA INDUSTRIA AZUCARERA, PONCE LOCAL (C. G. T.) Cases Nos. B-5023 and R-5038, respectively. -Decided May 28, 1943 Mr. Melton Boyd and Mr. Vincent M. Rotolo, for the Board. Si f re, Franceschi and Si f re, by fir. Jaime Si f re, Jr., and Mr. Orlando Antonsanti, of San Juan, Puerto Rico, for the Companies. Ramos Antonini and Gutierrez Franqui, by Mr. Ernesto Ramos Antonini and Mr. Victor Gutierrez Franqui, of San Juan, Puerto - Rico; and Mr. Santiago de la Fuente and Mr. Nicolas Le Caroz Large, of San Juan, Puerto Rico, for the C. G. T. Mr. Hipolito Marcano and Mr. Nicolas Nogueras Rivera, of San Juan, Puerto Rico, for the F. L. T. Miss Melvern R. Krelow, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon petitions duly filed by Union de Trabajadores de la Industria Azucarera, Ponce Local (C. G. T.), herein called the C. G. T., alleg- ing that questions affecting commerce had arisen concerning the repre- sentation of employees of Wirshing & Compania, S. en C. (Sociedad en Comandita), Juana Diaz, Puerto Rico, and Sucesion J. Serralles and Porto Rican American Sugar Refinery, Inc., Mercedita, Puerto Rico, herein called the Companies, the National Labor Relations Board provided for appropriate hearings upon due notice before Samuel H . Jaffee, Trial Examiner. Separate hearings in the two cases were held at San Juan, Puerto Rico, on February 23, 24, 25, March 1, 2, 3, 4, 5, 8, 9, 11, 12, 15, and 16, 1943. The Board, the Com- 49 N. L. R. B., No. 185. 1273 1274 DBE-CISIPON i OF NATIONAL LABOR REfLMfffONS BOARD, 'panes, the C. G. T., and Federation Libre de los Trabajadores de Puerto Rico, 'Consej o Insular de, Uniones Agricolas y Fabricas, and Union de Trabajadores. de Factoria, Taller, Vias y Obras de Ponce, herein called the F.L. T., appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine wit- nesses , and to introduce evidence bearing on the issues. At the commencement of the hearing, the F. L. T. moved to dismiss the petitions on the ground that the C. G. T. has not made a sufficient showing of designation by the employees, in the units sought to be established by the C. G. T., to raise questions concerning representa- tion. The Trial Examiner reserved ruling. For reasons herein- after set forth, we deem it unnecessary to make a determination of this contention. The companies moved to dismiss the petitions on the.ground that the National Labor Relations Act is not 'applicable to Puerto Rico and that the Board does not have jurisdiction over the Companies. We find this contention to be without merit. At the commencement of the hearing in Case No. R-5038, the parties stipu- lated to incorporate that record in the proceeding in Case No. R-5023. The record in Case No. R-5038 is, hereby incorporated into and made a part of the record in Case No. R-5023. The cases are hereby consolidated for the purpose of decision. The Trial Examiner's rul- ings made at the hearings are free from prejudicial error and are hereby affirmed. I At the hearing in Case No. R- 5038, the parties stipulated that although the Companies are distinct and separate entities, the par- ties agree that, for the purposes of that proceeding only, the opera- tions conducted by each one of those Companies shall be considered as a single operational unit. On April 6, 1943, the F. L. T. filed briefs which the Board has considered. On April 13, 1943, oral argument was presented'before the Board at Washington, D. C. Upon the entire records in the cases, the Board makes the fol- lowing : FINDINGS OF FACT I. THE BUSINESSES OF THE COMPANIES A. Wirshing c Companiia, S. en C. (Sociedad en Comandita) Wirshing & Compania, S. On. C. (Sociedad en Comandita) is a partnership consisting of Armando O. Wirshing y Serralles and Juan Eugenio Serralles, managing partners, and Sucesion J. Ser- ralles, a partnership, silent partner. All members of Sucesion J.' WIRSHING & COMPANIA, S. EN c. 1275 Serralles, among whom are included Armando 0. Wirshing y Ser- ralles and Juan Eugenio Serralles Sanchez, have as such members of said partnership, a substantial interest in Porto Rican American Sugar Refinery, Inc., Destileria Serralles, Inc., and Puerto Rican American Liquor Company. All members of Sucesion J. Serralles have a substantial interest, individually, in Licoreria La, Bodega, Inc. Armando 0. Wirshing y Serralles is a member of the Board of Directors of Porto Rican American Sugar Refinery, Inc. and Des- tileria Serralles, Inc. Juan Eugenio Serralles Sanchez is a member of the Board of Directors of Puerto Rican American Liquor Com- pany. The Company has its principal executive offices and the mill and factory near Juana Diaz, Puerto Rico, where it is engaged in grinding and processing sugar cane and. extracting therefrom raw sugar and producing molasses as a byproduct, which mill and factory is known as "Central Boca, Chica." During the period from July 1, 1941, to June 30, 1942, the Com- pany used raw materials consisting of sugar cane; the gross value of which amounted to approximately $850,000. All of the sugar cane' was cultivated and grown within Puerto Rico. During the same' period, the Company purchased supplies used in connection with the production of raw sugar and molasses, at its Boca Chica Central, valued at approximately $80,000, all of which was shipped to, the Company from poits outside Puerto Rico, and which constituted Ap- proximately' 98 percent of the Company's expenditures for said sup- plies during said period. During the same period, the Company produced raw sugar amounting to 18,849 tolls, valued at approxi- mately $1,000,000, _ substantially all of which was sold and delivered' to Porto Rican American Sugar Refinery, Inc., which latter cor- poration in turn processed a total of 71,725 tons of refined sugar, of which 10,882 tons were sold within Puerto Rico, and 57,184 tons were exported by it to points outside of Puerto Rico, mainly to the United States, the remainder now being in storage in Puerto Rico. During 1942, the Company produced approximately 800,000 gal- lons of molasses, of which substantially 100 percent was sold and delivered to Destileria Serralles, Inc.,' for use in 'the distillation of rum and bulk spirits. During the same period, Destileria Serralles, Inc., Puerto Rican American Liquor Company, and Licoreria La Bodega, Inc., bottled approximately 852,011 proof gallons of rum from molasses received by them in a substantial part from the Com- pany and from other sources prior to 1942, of which approximately 45 percent was exported by said' bottling companies under the trade names owned by them, and marked respectively, "Don Q," "Boca Chica," and "Kofresi." 1276 ' IDECIKONS OF NATTO AL LABOR REfLA(rfONS BOARD r B. Sucesion J. Serralles Sucesion J. Serralles is a civil agricultural partnership consisting of Juan E. Serralles Perez, Rosita Serralles de Torruella, Felix J. Serralles, Juan E. Serralles, Jr., Juan-E. Serralles Hidalgo, Roselene Serralles Hidalgo, Julia Serralles Vda. de Wirshing, Juan A. Wirsh- ing Serralles, Margarita C. Wirshing Serralles, Herman H. Wirshing Serralles, Armando 0. Wirshing Serralles, Julita M. Wirshing Se- rralles, Mercedes C. Wishing Serralles, Pedro Juan Serralles,. Ro- sario June `Serralles Tristani,I Pedro, J. Serralles Tristani, and Juan E. Serralles Tristani. All members of Sucesion J. Serralles have, as -such members of said partnership, a substantial interest in Porto Rican-American, Sugar 'Refinery, Inc., Destileria Serralles, Inc., and Puerto Rican' American Liquor Company. All members of the Com- pany have-a substantial interest, individually in Licoreria La Bodega, Inc. - The Company has its principal executive offices in Mercedita, Puerto Rico, where it is engaged in grinding and processing sugar cane and extracting therefrom raw sugar and producing molasses as a byproduct, which mill and factory is known as "Central Mercedita." During 1942, the Company used "raw materials consisting of sugar cane in the production of raw sugar and molasses, at its Mercedita Central, the gross value of which amounted to approximately $2,061;- 363, all -of which was cultivated and grown within Puerto Rico. During 'the same period, the Company purchased supplies used in connection with, the production of raw sugar and molasses, at its Mercedita Central, valued at approximately $131,000, all of which was shipped to the Company from points outside Puerto Rico, and which constituted approximately 98 percent of the Company's expenditures for said supplies during said period. During the same period, the Company produced raw sugar amounting to 44,980 tons, valued at approximately $4,496,000, substantially all of which was sold and delivered to Porto Rican American Sugar Refinery, Inc. During the same period, the Company produced approximately 1,700,000 gal- lons of molasses, of which substantially 100 percent was sold and delivered to Destileria Serralles, Inc., for use in the distillation of rum and bulk spirits. The Destileria Serralles, Inc., Puerto Rican American Liquor Company, and Licoreria, La,Bodega, Inc., during the same period, bottled, approximately 852,011 proof gallons of rum from molasses ,received by them in a substantial part from the Com- pany and from other sources prior to 1942, of which approximately 45 percent was exported by said bottling Companies under the trade names marked respectively, "Don Q," "Boca Chica," and "Kofresi." WIRSHING & C'OMPANI'A, S. _ EN c. 1277 C. Porto Rican American' Sugar Refinery, Inc. Porto Rican American Sugar Refinery, Inc., is a Puerto Rican core poration,'having its principal executive offices and its refinery plant in Mercedita, Puerto Rico, where it is engaged in the production of refined sugar which is sold under the trade name of "Snow White." During 1942, the Company used raw materials, to wit, raw sugar, in the production of refined sugar, at its Mercedita plant, valued at ap- proximately $6,400,000, a substantial part of which was purchased from Sucesion J. Serralles. During the'same period, the Company purchased supplies used in connection with the production of refined. sugar at its Mercedita plant, valued at approximately $330,000, all of which was shipped to the Company from points outside Puerto Rico, and which constituted approximately 98 percent of the Com- pany's expenditures for sai4, supplies during said period. During the same period, the Company produced refined sugar amounting to approximately 71,725 tons, valued at approximately $6,700,000, 10,882 tons of which were sold within Puerto Rico, and 57,184 tons of which were exported to points outside Puerto Rico, the remainder now being in storage in Puerto Rico. 1 II. THE ORGANIZATIONS INVOLVED Union deTrabajadores de la Industria Azucarera, Ponce Local (C. G. T.), is an unaffiliated labor organization admitting to mem- bership employees of the Companies.- Federacion Libre de los Trabajadores de Puerto Rico, Consejo Insular, de Uniones Agricolas y Fabricas, and Union de Trabajadores do Factoria, Taller, Vias y Obras de Ponce, affiliated with. the Amer- ican Federation of Labor, are labor organizations admitting to mem- bership employees of the Companies. III. THE ALLEGED APPROPRIATE UNITS The C. G. T. contends that an employer unit is appropriate for the purposes of collective bargaining, whereas the Companies and the F. L. T. contend that the appropriate unit should be Association- wide. Puerto Rico is an island of an area of approximately 3500 square miles. The sugar industry is centered around the cane lands which ' The F. L. T. contends that the C. G T. is a political , rather than a bona tide labor organization , and that the petitions of the C G. T. should therefore be dismissed . We find no merit in this contention . The record shows that the C G T. has sought recognition as the collective bargaining representative of various types of employees and that it has entered into collective bargaining agreements with certain employers. It is clearly a labor organization within the meaning of the Act. 1278 D'ECI'SEIONiS OF NATIONAL LABOR RELAnONS BOARD follow the coastal plains almost entirely around the Island, except in the northwest where-the hilly terrain is devoted largely to fruits and minor crops. There are also some cane lands in the valleys of the interior. Sugar cane in Puerto Rico is cultivated by independent farmers called "colonos," and by sugar mills, so-called centrals. Dur- ing the season for 1941-1942, there were 41 centrals operating in Puerto Rico. The sugar, industry is the most important industry in Puerto Rico. There are approximately 125,000 , workers in the industry,: including the field workers.' It is estimated that over 25 percent of the total number of employees in the Island Work in sugar cane farms and mills. Sugar and molasses account for about 60 per- cent of the total value of exports from Puerto Rico, and it has- been estimated that the sugar industry represents 50 percent of the total volume of business in' Puerto Rico. As stated above, there are approximately 41 sugar mills (centrals) in Puerto Rico, all of which are engaged in manufacturing the same product, raw sugar. The operations of the various centrals are sim- ilar and necessarily so. With minor differences, all the centrals use the same process in the manufacture of raw sugar. Similar-skills by craft are required among, the employees in the various mills, and the records indicate that uniform wages, hours, and working conditions prevail throughout the Island. Labor organizations attempted.to organize the sugar fields as early as 1899, when the Federation Regioiiale came into existence. How- ever, this organization did not succeed, and, it disbanded. In 1900, the F. L. T. was organized and affiliated with the American Federation of Labor, which continued as the only labor, organization in the field. until 1940, when the C. G. T. organized. For a period of several years, prior to 1933, the F. L. T. endeavored to negotiate with individual sugar producers. It obtained agreements, some written, and some oral, which, however, were not particularly effective alleg- edly for the reason, that the sugar producers, who were associated on an insular-wide basis, used their combined strength to prevent the workers from improving their working conditions. In any event, wages, hours, and working conditions in the sugar industry were not appreciably improved during this period of bargaining upon a'single employer basis. , In 1909, Sugar Producers Association of Puerto Rico, herein called the Association, legally constituted 'by sugar cane' planters and proc- essors of sugar, was organized. The Association admits to mem- bership manufacturers of sugar, whether, incorporated or not, en- gaged in the manufacture of sugar in the Island,. and the growers WIRSHING & COMPANIA, S. EN C. 1279 'of sugar cane.2 Practically all ,,of the centrals have been members during the years, and at the present- time all are members. From 1933 to the present date, a system of collective bargaining on an insular basis was developed between the Association and the F. L. T. In 1933 the F. L. T. and the Association, on behalf of its members, executed the first Association-wide collective bargaining contract, and in, each subsequent year Association-wide contracts have been executed, each for the period of 1 year, with the',exception of the January 1942 contract, which is for a period of 3 years. ' Shortly prior to the expiration date of a F. L. T. contract, the Asso- ciation appoints a committee which appears to have general author- ity to enter into and conduct labor negotiations, although the ap- proval of the membership body is necessary before negotiations are consummated by final agreement. At a convention called by the F.' L. T., comprising delegates from the agriculture, factories, and railroad unions throughout the Island, amendments and/or modi-, fications of the agreement are discussed. At the convention a col- lective bargaining committee is appointed, which makes recommenda- tions that must be approved by the delegates. An Insular Committee is then appointed which is instructed to carry on negotiations with the Association. The Council sends a communication to the Associ- ation notifying the Association that it is ready to enter into nego- tiations. The Committee appointed by the Association and the Insular Committee of the' F. L. T. meet and discuss terms of a pro- posed contract. At the conclusion of the negotiations, a general meeting is called by the Association, at which each member may be represented by himself or a duly authorized agent. If the-member', or his agent, votes in the affirmative, that is to accept the agree- ment, the vote is, binding; if he reserves his vote, however, he has the right to reject the agreement within 110 days. If within the 10- day period no notice of rejection is received from the members who have reserved their votes, then those members are bound.3 The' agreement is ratified by the F. L. T. by a referendum, vote of the locals. The locals are given 10 days, and if'a majority '(half plus one) approves, then the agreement is signed. The agreement is signed in behalf of the F. L. T. by the Insular Council, and for the centrals by the Association. 2 Article V, section (a) of the Association 's Rules and` Reg , ulations, set up in 1909 and which are still in existence, sets forth that "active members are the sugar centrals or bona fide cane growers, who acknowledge this as their principal and recognized activity,_and who contribute with the assigned membership dues to the support of the Association Each member shall be entitled to one vote at the deliberations in general meetings,' for each dollar contributed by him to the Association, in the year which includes the date when the general meeting is held, a majority being understood to be one -half plus one of the total number of votes that are cast in each meeting.. - There have been years when members have signified their intention not to be bound by the agreement . The companies have never rejected any of the agreements , including the present one, executed by the Association and the F. L. T. 1280 DECISIION& OF NATff'ONAL 'liABOR • RE,LArTIONiS , BOARDi In their contracts ;the F. L.- T. and the Association' have set up a comprehensive machinery for the settlement of grievances and dis- putes. It is-provided that an attempt at settlement is first made by, a duly designated delegate of the affiliated unions in each local- ity. Failing a settlement, the grievance is referred to a Committee of Adjustment, which is composed of two members named by the Executive Council of the F. L. T., and two members appointed by the Association. This Council is in the nature of an appeals board. If the Committee disagrees, a fifth member is designated by unani- mous vote and the decision by a majority of this Committee of five members is final and binding upon the parties. The records indi- cate that at no time during the existence'of any of these agreements has it been necessary to appoint a fifth member. In the contracts executed between the C. G. T. and certain sugar' producers, the ma- chinery which -has been set up for the settlement of grievances and disputes is similar to that set up in, the F. L. T. contract. The C. G. T. was organized in 1940; in which year the C. G. T. addressed it communication to' the Association- explaining that it was a' labor organization of sugar cane workers and that it was interested in proceeding with collective bargaining negotiations with the Association. No answer wastreceived from the Association. On December 1, 1941, the F.'L. T. notified the Association- by letter that 'it desired, to negotiate with regard to the renewal 'of its 'agreement. On December 4, 1941, the C. G. T. wrote to the Association informing- it that it was the desire of the locals affiliated with the C. G. T. to obtain an agreement. On December 11, 1941, the Association entered into negotiations with the F. L. T. On December 16, 1941, the C. G. T. notified the Association that it had not received an answer from the Association to its leter of December 4, 1941; and that it was waiting for the*Association to appoint a committee to bargain with it. In the same month, a convention of the C. G. T. was held, and the membership decided to submit a proposed agreement (Asso-_ ciation-wide) to the Association. On December-30,1941, it forwarded a letter to the Association enclosing the proposed agreement. ' The Association answered that it would appoint a' committee to discuss the matter. 'The present F. L. T. agreement was'"executed on' Jan- ' ut ry 16, 1942.4 ' Not hearing from the Association as to.'"whbn a 4 The F. L. T. contends that this agreement is a bar to an investigation of representatives and that no questions have arisen concerning the representation of employees of the Com- panies. The Companies contend that although they desire to maintain strict neutrality, they nevertheless feel that they could not maintain 'that impariality if they arbitrarily and without cause ignored the existing contract with the F . L. T. They further maintain that they consider themselves bound by the terms of the present agreement and have always felt themselves bound by the previous agreements executed through the Association , of which they are members , and that the Board should not direct elections during the life of the agreement , which expires December 31, 1944. For reasons hereinafter set forth in the text, we deem it unnecessary to make a determination of these contentions., WIRSHING, & ' COMPANIA, S. EN c. 1281 committee would meet with its representatives, the C. G. T. addressed a letter to the Association on January 16, 1942, informing the Asso-, ciation that unless an agreement were executed by January 19, 1942, the C. G. T. would strike. On January 19, 1942, the C. G. T. went on strike. The C. G. T. claims that 18 centrals were "partially" or, completely prevented from working. The F. L. T. asserts that only ' about 8,000 workers were on strike. The records do not indi- cate the actual number of employees who were on strike. On Feb- ruary 16, 1942, a truce was called at the request of the Governor, of Puerto Rico on the promise that a Board would be set up to study the situation, and that any determination with respect to wages .would be retroactive as of February 16, 1942.' On February 16, 1942, the workers returned to work. The Companies admit that the C. G. T. made requests upon them for recognition as the exclusive bargaining representative of their employees. On December 31, 1942, in a conference, which followed the requests, the Companies informed the C. G. T. that until elec- tions were held to determine the proper collective bargaining agent they could not enter into agreements with the C. G. T., since they had already executed an agreement with the F. L. T., which would not expire until 1944. In support of its contention for the appropriateness of an Associa- tion-wide unit, the F. L. T. showed that prior to the organization of the sugar industry by the F. L. T., working conditions were chaotic, that during most of such °period the sugar workers were either unor- ganized or were organized on less than an Association-wide basis; that since 1933, when the first Association-wide agreement was executed, the basic work day has been reduced to 8 hours, minimum wages have been established, ^ piece work, which was one of the greatest evils in the sugar industry, has been abolished, and a number of other improve- ments in working conditions have been achieved. The C. G. T. contends that more effective bargaining would result if the unit were limited to the individual; employer or central, assert- ing that agreements on that basis could be enforced with the aid of a strong central body, whereas the potential effectiveness of an Associ- ation-wide agreement has been dissipated by laxity in enforcement. Witnesses for the C. G. T. testified to varying conditions in the industry as a whole, which included different operations according to the locality, different management practices according to the types of ownership; different classification of workers according to each locality; and to differing states of development of collective bargaining which in some instances due to the involvement of the terms of the Association agreement, the prolonger.proceedings to interpret said terms, the entailing delays, all resulting in confusion to theworkers, I 1. 1282 DECISTONIS OF NATIONAL,LABOR RELATIONS BOARD and the indifference of individual employers to the fulfillment of the terms in the agreement have rendered such collective bargaining ineffective.- The C. G. T. contends that these factors necessitate bar- gaining upon an individual employer or central basis.. Upon exam- ination, however, it seems clear that such differences in methods of operation and working conditions as exist are minor. No persuasive evidence was adduced to indicate that the bargaining machinery set up by the existing contract has proved unworkable, in any significant, respect in particular,centrals. - Even if the testimony of the C. G. T. witnesses concerning unde- sirable working conditions at the centrals is true, such facts do not establish the appropriateness of a unit limited to the individual em- ployer or central. We are convinced from the record before us that the alleged evils complained of by the C. G. T. would not be less preva- lent, but might be more prevalent, -if each central were considered an appropriate bargaining unit.- The history of bargaining in the sugar industry prior to 1933 supports this conclusion. The C. G. T. does not deny the desirability of uniformity in mini- mum requirements concerning wages and certain working conditions at the centrals for the entire Island. By its attempt through the years 1940, 1941, and the beginning of 1942, to.gain recognition from the Association on an Association-wide basis, as evidenced by the pro- posed agreement submitted by it to the Association in 1941, and the similarity 'of its grievance machinery to that set up by the F. L. T., the C. G. T. has recognized the desirabilitydof operating to at least a limited extent on an Association-wide basis. Working conditions of the sugar workers have improved and their understanding and par- ticipation in collective bargaining have increased as a result of the Association-wide bargaining which has existed in the Island since 1933. , We are convinced that the full benefit of their right to self-organiza- tion• and to collective bargaining cannot be insured to the- employees by breaking up the collective bargaining unit which has been estab- lished by a long history of contractual relations between the Associa- tion on behalf of the sugar producers, and the F. L. •T. on behalf of the sugar workers of the Island. We find that the employer unit urged by the C. ,G. T. is not appropriate for the purposes of collective bar- gaining. We shall therefore dismiss the, petitions of the, C. G. T. IV. THE QUESTION CONCERNING REPRESENTATION Since the bargaining units sought to be established by the petitions are inappropriate, as 'stated in Section,III, above, we find that no questions affecting commerce, have arisen concerning the representa- tion of employees•of the Companies in appropriate bargaining units. WIRSHINO & COMPANIA, S. EN C. 1283 ORDER Upori the basis of the foregoing findings of fact, the National Labor Relations Board hereby orders that the petitions for investigation and certification of representatives of employees of Wirshing & Compania, S. en C. ( Sociedad en Comandita ), Juana Diaz, Puerto Rico,, and Sucesion J. Serralles and Porto Rican American Sugar Refinery, Inc., Mercedita , Puerto Rico, filed by Union de Trabajadores de la Indus- tria Azucarera , Ponce Local ( C. G. T.), be, and they hereby are, dismissed. CHAIRMAN MiLms took no part in the consideration of the above Decision and Order. ` - I 531647-43-vol. 49-82 Copy with citationCopy as parenthetical citation