Marianas Stevedoring & Development Co., Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 1043 (N.L.R.B. 1970)

MARIANAS STEVEDORING & DEVELOPMENT
Marianas Stevedoring & Development Co , Inc and
Operating Engineers Local Union No 3 of the Interna-
tional Union of Operating Engineers , AFL-CIO, Peti-
tioner Case 37-RC-1381
June 2, 1970
SUPPLEMENTAL DECISION AND DIRECTION OF
ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On April 8, 1968, the National Labor Relations Board
issued a Decision and Order' in the above-entitled pro-
ceeding finding that in view of the control exercised
by the United States Navy over the affected employees
during their employment it would not effectuate the
purposes of the Act to assert jurisdiction over the parties
involved , and ordering that the petition be dismissed
On December 30, 1969, the Petitioner, citing certain
data negating the existence of any employer-employee
relationship between the affected employees and the
United States Navy, requested reinstatement and reacti-
vation of the petition Thereafter , the Board , on March
3, 1970, issued a notice to show cause why the subject
case should not be reinstated or reactivated for purposes
of reconsidering the question of assertion of jurisdiction
over the parties involved The Employer's response
opposes reinstatement of the petition After duly consid-
ering the matter , the Board has decided , for the reasons
set forth below, to reinstate the petition and direct
an election
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel
As more fully set forth in the Board's original decision
in this matter, the employees here involved are Philippine
alien contract workers recruited by the Employer, pur-
suant to a contract with the United States Navy, for
employment at the United States Naval ship repair facili-
ty located in the Territory of Guam The specialized
nature of the employees ' work, i e repair and alteration
of naval ships and related craft, brings them in constant
contact with various U S Naval personnel or civil serv-
ants in the direct employ of the U S Navy who have
and utilize the power to direct the work of the employees
involved and to effectively recommend their promotion
or discharge In view of this close contact between
the U S Navy and the employees involved, the Board
concluded that it would not effectuate the purposes
of the Act to assert jurisdiction
Subsequently, the United States Navy, which, through
the medium of its contract with the Employer, had
always disclaimed the existence of any employer-employ-
ee relationship between itself and the alien contract
workers involved herein, has again reiterated such posi-
tion and suggested that the Employer permit a representa-
I70 NLRB No 148
1043
tion election to be conducted which may lead to the
establishment of a collective -bargaining relationship
between the Petitioner and the Employer
In view of the position of the United States Navy
in this matter , we have again reviewed the record in
the subject case together with the submissions of all
interested parties and , as noted above , have decided
to reinstate the petition and direct an election In this
connection, we note, that while the U S Navy does
play a part in the day-to-day supervision of the affected
employees, such role does not in and of itself preclude
the Petitioner and Employer from entering into a collec
tive-bargaining relationship with respect to those subjects
and conditions of employment effectively within the
Employer's control and not in direct conflict with the
operations of the United States Navy or affecting national
defense 2 Thus the record discloses that the Employer,
among other things, is responsible for transportation
to and from Guam, supervises and maintains Roxas
Village where the alien workers are housed and fed,
grants vacations, and leaves of absences, arranges for
repatriation, pays the employees wages and makes the
necessary deductions for taxes, etc , establishes and
maintains recreation and canteen facilities, and provides
for hospitalization and medical and emergency dental
treatment Moreover, although the contract between the
Employer and the U S Navy sets forth the applicable
rate per employee classification, such contract makes
it clear that in the event any collective-bargaining con-
tract is executed which imposes higher rates upon the
Employer for such classifications, renegotiation of the
existing rates is in order Accordingly, under the circum-
stances , we find that the Employer, Marianas Stevedor-
ing & Development Co , Inc , retains such a degree
of effective control over the labor relations of the
employees here involved that it would best effectuate
the purposes of the Act to assert jurisdiction
Accordingly, we find that the following employees
of the Employer at the United States ship repair facility
in the Territory of Guam constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
All alien contract production and maintenance
employees of Marianas Stevedoring & Development
Co , Inc , at the United States Naval ship repair
facility in the Territory of Guam, excluding all
civil service employees and local hires covered
by a collective-bargaining agreement of American
Federation of Government Employees, all office
clerical employees, professional employees, guards,
and supervisors as defined in the Act
[Direction of Election3 omitted from publication l
2 Cf N L R B v Atkins & Co 331 U S 398
9 In order to assure that all eligible voters may have the opportunity
to be informed as to the issues in the exercise of their statutory
right to vote all parties to the election should have access to a list
of voters and their addresses which may be used to communicate
with them Excelsior Underwear Inc 156 NLRB 1236 N L R B v
Wyman Gordon Company 394 U S 759 Accordingly it is hereby
directed that an election eligibility list containing the names and address
es of all the eligible voters must be filed by the Employer with the
Regional Director for Region 20 within 7 days of the date of this
(Cont )
182 NLRB No 143
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER FANNING, concurring:
I concur in my colleagues' decision to grant Petition-
er's request that the petition in this case be reinstated.
In support of its request, Petitioner submitted, inter
alia, a copy of a letter from the Employer,4 dated
December 12, 1969, rejecting Petitioner's request for
bargaining, on grounds, inter alia, that it was engaged
in negotiations with another "group who claims represen-
tation of a majority of our employees." In view of
the disparity between the Employer's position before
the Board in this case that it was not the employer
of the employees involved and the position reflected
in its communication to the Petitioner, I am satisfied
that good cause exists for reinstating the petition and
for reconsideration by the Board of its determination
that it would not effectuate the purposes of the Act
to assert jurisdiction over the parties involved herein.'
On the basis of an independent review of the entire
record in this case, including the briefs filed by the
parties at the close of hearing," I find that Masdelco
is an employer within the meaning of Section 2(2) of
the Act of the employees involved herein. I base this
finding on the record evidence that demonstrates that
Masdelco retains and exercises power to hire and fire
the employees involved, that it controls numerous other
incidents of the employment relationship such as the
transportation of employees to and from Guam, the
determination of when employees may take home leave
without pay, and wages, as well as housing, food, dental
Supplemental Decision and Direction of Election The Regional Director
shall make the list available to all parties to the election No extension
of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever
proper objections are filed
service, and recreation and entertainment benefits. More-
over, the contract between Masdelco and the Navy
contains a provision permitting renegotiation of fees
to be paid to Masdelco in the event of increased costs
resulting from, among other things, the negotiation of
a collective-bargaining contract. Thus, it appears that
whatever the relationship of these employees to the
Navy, Masdelco and the Navy are in agreement that
the former can effectively bargain about wages as well
as about the other conditions of employment noted
above.
In these circumstances, it is apparent that Masdelco
retains control over significant aspects of the employment
relationship, and that it will therefore effectuate the
policies of the Act to permit the establishment of a
collective-bargaining relationship if the employees
desire.' Accordingly, I would exercise jurisdiction here-
in," and direct an election in the unit of employees
found appropriate for purposes of collective bargaining
by my colleagues.
Also referred to herein as Masdelco.
Nothing contained in the Employer's response to our notice to
show cause persuades me otherwise The notice to show cause along
with `copy of the Board decision and a copy of Petitioner's letter
requesting reinstatement of the petition were served on the Philippine
Trade Unions Council and its counsel, upon administrative advice from
the Board's Region 20 office, identifying it as the "group" with which
the Employer was purportedly negotiating No response to our notice
to show cause has been received from that source
" I did not participate in the original decision in this proceeding
See N L.R B v Atkins & Co 331 U S 398 Assuming without
deciding that the Navy may be a joint employer of the employees
involved because of the supervision, direction, and control of their
work, I would still assert jurisdiction herein, in view of the demonstration
in the Navy-Masdelco contract that the Navy accepts Masdelco's capaci-
ty to engage in collective bargaining See Herbert Harvey, Inc , 171
NLRB No 36, enfd 424 F 2d 770 (C.A D C )
" The Board's jurisdiction extends to Guam See R C A Communica-
tions, Inc , 154 NLRB 34