Puerto Rico Marine Mgt., Inc.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 181 (N.L.R.B. 1979)

PUERTO RICO MARINE MANAGEMENT. INC.
Puerto Rico Marine Management, Inc. and Union In-
dependiente Empleados Clericales Frentce Portu-
ario, Petitioner. Case 24 RC 6187
May 14. 1979
DECISION AND DIRECTION OF ELECTION
BY MEMBERS JENKINS, PENEI..O, AND MURPHY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Graciela J. Belaval of
the National Labor Relations Board. Following the
close of the hearing, the Regional Director for Region
24 transferred this case to the Board for decision.
Thereafter, the Employer filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board, having duly considered the Hearing Of-
ficer's rulings made at the hearing, finds they are free
of prejudicial error. They are hereby affirmed. At the
hearing, Local 402, Office and Professional Employ-
ees International Union, AFL-CIO, requested that it
be allowed to intervene in these proceedings because
"this petition was filed for the Puerto Rican employ-
ees of PRMMI [Puerto Rico Marine Management,
Inc.] only, and because the International Union rep-
resents all employees of PRMMI, Local 402 is the
one that represents the employees in Puerto Rico."
Office and Professional Employees International
Union, AFL-CIO,' opposed the intervention of Local
402 based on its contention that "representation is
vested in the International Union in a multi-location
contract...." The Hearing Officer referred her ruling
to the Regional Director who, subsequent to the hear-
ing, transferred the case to the Board for decision.
Based on the evidence in the record, we sustain the
objection of Office and Professional Employees Inter-
national Union, AFL-CIO, and do not permit the
intervention of Local 402. The evidence we rely on is
the collective-bargaining agreement signed by Puerto
Rico Marine Management, Inc., hereinafter PRMMI
or the Employer, and the Office and Professional Em-
ployees International Union, AFL-CIO, hereinafter
OPEIU or the International, effective between No-
vember 9, 1975, and November 9, 1978.2 Local 402 is
not signatory to the agreement, nor is it referred to
'Whose status as an intervenor has already been granted and which we
affirm.
2 Both Local 402 and the International have relied on the collective-bar-
gaining agreement as the basis for their respective intervention in the pro-
ceeding herein: and, since neither union has been certified. our decision must
be based on a construction of the collective-bargaining agreement, the only
relevant evidence in the record.
therein as a party to the agreement. Consequently.
we are in agreement, based on an examination of the
entire document. that the wording of the paragraph
preliminary to the collective-bargaining agreement
does not make Local 402 a party to the contract so as
to allow its intervention based on that document. 4 In-
deed, the unit delineated in the contract is employ-
erwide (multilocation) in scope: and, while it is ap-
parent that Local 402 may administer or police the
contract with respect to that segment of the total unit
located in Puerto Rico, it does not represent those or
any other employees as a separate unit for collective
bargaining. Accordingly, and for the reasons set out
above, we sustain the International's objection and
deny the motion for intervention of Local 402.
Upon the entire record in this proceeding, the
Board finds:
I. The Employer is a Delaware corporation en-
gaged in providing marine transportation and related
services between Puerto Rico and the mainland of the
United States and in interstate and foreign com-
merce. It has its principal office and place of business
at Elizabeth, New Jersey, and maintains other places
of business and port facilities throughout the United
States. including the Commonwealth of Puerto Rico.
During the past year PRMMI derived gross revenues
in excess of $500,000 from the handling and transpor-
tation of cargo in interstate and foreign commerce in
connection with its services as manager and operator
of vessels and related facilities owned by Puerto Rico
Marine Shipping Authority, hereinafter PRMSA, a
public corporation. During the same period PRMMI
provided and performed services valued in excess of
$50,000 for companies located outside the Common-
wealth of Puerto Rico.
The Petitioner seeks to represent a unit limited to
those employees employed as "office and clerical em-
ployees" by the Employer at all its locations through-
out the Commonwealth of Puerto Rico. Both the Em-
ployer and the Intervenor contend that an
employerwide, multilocation unit is appropriate. In
addition, a question is presented whether PRMMI is
an "employer" within the meaning of Section 2(2) of
the Act. This issue has previously been considered by
us in a series of situations involving National Mari-
3 The closing paragraph of the collective-bargaining agreement states:
IN WITNESS WHEREOF. the parties hereto have caused these pres-
ents to be signed by their duly authorized representatives.
The signatures which appear under this paragraph are those of the represen-
tatives of PRMMI and the International, only.
'The preliminary paragraph referred to supra reads as follows.
AGREEMENT entered into this 9th day of November. 1975 between
the OFFICE AND PROFESSIONAL EMPLOYEES INTERNA-
TIONAL UNION. AFL CIO. and affiliated Local Unions of the Office
and Professional Employees International Union. AFL-CIO. hereinaf-
ter referred to as the "Union," and PUERTO RICO MARINE MAN-
AGEMEN.F, INC.. its successors and assigns, hereinafter referred to as
the "Employer"
242 NLRB No. 31
181
DI.('CISIONS OF NA'IONAI. I.ABOR R.IA'I IONS BOARI)
time Union of America, AFL-CIO, Seafarers Inter-
national Union, AFL-CIO. and the Employer
herein.' The Board considered the Administrative
Law Judge's Decision and affirmed it without signifi-
cant modification, finding, inter alia, PRMMI to be
an "employer" within the meaning of Section 2(2) of
the Act.6
Since issuance of' our Decision and Order in that
case, and prior to the filing of the instant petition.
PRMSA acquired on June 30, 1978, the stock of'
TKM Corporation, a holding company which itself'
owned 100 percent of the stock of PRMMI.7 Upon
PRMSA's acquisition of TKM, a special meeting of
the stockholders of TKM was held on June 30, 1978,
in Newark, New Jersey, at which the resignations of
TKM's directors were accepted. The sole stockholder
of TKM, PRMSA, then nominated and elected Rud-
die E. Irizarry, Miguel A. Rossy, and Jose A. Cal-
deron as the new directors of TKM. These directors
thereupon passed a resolution electing themselves
president, executive vice president and secretary, and
treasurer, respectively, of TKM. TKM, then, as sole
stockholder of PRMMI, elected Irizarry, Rossy, and
Calderon as president, executive vice president and
secretary, and treasurer, respectively, of PRMMI.
These three individuals, now filling the top three of-
fices of both TKM and PRMMI, had all been em-
ployed by PRMSA, right up to the point in time they
had resigned to assume their new positions with
TKM and PRMMI.8 They did not, however, retain
any connection with PRMSA upon the assumption of
their duties with TKM and PRMMI. In addition, 15
other PRMSA employees left that entity and took
new positions with PRMMI, having formally severed,
like Irizarry, Rossy, and Calderon. any and all ties
with PRMSA. 9 Although PRMSA does not intend to
s National Maritime Union fJ' Ameri ca, 4FL CIO (Puerto Ro Marine
Management, Inc.), 227 NLRB 20 (1976).
* Member Penello dissented on this issue. refusing to assert jurisdiction
over PRMMI.
7 PRMSA. an instrumentality of the Commonwealth of Puerto Rico, was
created by the legislature for the express purpose of taking responsibility "for
the maritime transportation between Puerto Rico and abroad land] which
will provide this essential service wholly or pa-tially, as long as the public
interest, health and welfare of its citizens may require." Act of the Puerto
Rico Maritime Shipping Authority. Act No. 62 (approved June 10, 1974).
a When employed by PRMSA, Ruddie Irizarry had served as assistant
executive director, Miguel Rossy has served as assistant executive director of
finance and auditing, and Jose Calderon had occupied the position of assist-
ant executive director of hnance.
9 The following lists those individuals formerly employed by PRMSA who
are now employed by PRMMI, and the positions held by them respectively.
(It does not include the three individuals discussed in fn. , vupra.)
Angelo Colon Asst. Exec. Dir., Operations, (Gen. Mgr. Operations,
Puerto Rico. Freddie Vasquez Supervisor. Mgr. Marketing. Puerto
Rico; Roberto F. Cruz-Senior Internal Auditor, [)ir Administration.
Puerto Rico: Lorenzo Santiago Head Internal Auditor. Director. Au-
diting: Ramon Feliciano Tariff Officer. Documents Manager L.icinio
Hernandez Community Relations Officer, Special Projects Officer.
Froilan Ansa - Dir. Client Relations. Dir. Marketing. Puerto Rico; Mi-
guel Diaz Dir. Maritime Operations, ir. Corporate Maintenance.
L.uis Colon Personnel Officer, D)irector: Justinio Hernandez I)ir.
replace all those who left its employ for PRMMIL
there was testimony which indicated that PRMSA is
currently in the process of consolidating its opera-
tions, thus obviating the need fr many of' its employ-
ees who joined PRMMI.
Despite the changeover of personnel, there is no
evidence of any significant change in the relationship
between PRMSA and PRMMI. PRMMI continues to
oversee the day-to-day operations of the ships it man-
ages, and also continues to control all aspects of labor
relations with respect to its employees. Although
PRMSA has budgetary control over PRMMI, there is
no evidence that the nature or extent of that control
has changed since the stock acquisition by PRMSA.
Indeed, PRMMI continues to remain a separate cor-
porate entity, its relationship to PRMSA defined by
the amendment and restatement of the management
services contract entered into by PRMSA, PRMMI,
Puerto Rico Marine Operating Company, Inc., and
1KM Corporation. Moreover, there is no evidence
that this amendment and restatement differs in any
significant fashion from the management services
contract in effect at the time we considered this issue
in Puerto Rico Marine Management, Inc., .supra. Thus,
in accordance with our Decision in the earlier case, in
which held, inter alia., that asserting jurisdiction over
PRMMI would effectuate the policies of the Act, and
because we believe, based on the evidence herein, that
the acquisition of PRMMI' stock by PRMSA through
the intermediary corporation. TKM. does not alter
those factors on which we relied when we first as-
serted jurisdiction over PRMMI, ° we reaffirm our
Decision in the earlier case and find PRMMI to be an
Terminal Operations. Operations Nicholas Perez Officer, Division of
Terminals, Operations; Rosa Lopez Administrative Secretary. Secre-
tarial Staff: Ada Zayas Administrative Secretary, Secretarial Staff;
Nancy Santiago- Administratie Secretary, Secretarial Staff:l' Elba Vaz-
quez Secretary. Secretarial Staff.
m Puerto Rio'o Marine Managtement, Inc. supra Member Murphy, in af-
firming the assertion ofjurisdiction herein. notes that the Board's assertion of
jurisdiction in Puerto Rico Marine Management Inc, supral was based in
part upon an application of the "intimate connection" test. She, like her
dissenting colleague, would continue to apply that test in determining
whether to assert jurisdiction over an employer whose operation is closely
connected to a governmental entity. However. contrary to her dissenting
colleague she finds an appropriate application of' that test results in the
assertion of jurisdiction herein, for, as stated by the Administrative Law
Judge in the earlier case. "PRMSA's marine transportation operation consti-
lutes a purely commercial enterprise 'paralleled by employers in the private
sector' and not a universally recognized, essential and traditional govern-
mental function." Thus, she adheres to the iew that the Board should con-
tinue to assert jurisdiction over PRMMI for the reasons summarized by the
Administrative aw Judge as fbllows:
Considering the commercial nature of PRMSA's ocean transportation
operation. the great scope and direct impact this operation has on inter-
state commerce. and the substantial control exercised by PRMMI. as a
statutory employer, over its labor relations pohlicies and employment
conditions: and balancing the rights and protection the Act makes
available to the employees and employers against the jurisdictional ex-
emption the Act provides, I find that the purposes of' the Act to elimi-
nate disruptions in commerce would best be accomplished by assuming
jurisdiction in this case [Puerto Rico Marine Management. Inc. 227
NI.RB at 33.]
182
PUIERTO RICO MARINE MANAGEMENT. INC.
"employer" within the meaning of Section 2(2) of the
Act.
2. We find, as stipulated by the parties, that the
Petitioner and the Intervenor are labor organizations
within the meaning of the Act.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. Both the Employer and the Intervenor agree
that only an employerwide unit would be appropri-
ate. The Petitioner seeks a unit limited to office cleri-
cal employees located in the Commonwealth of
Puerto Rico.
During the course of the hearing the parties stipu-
lated to the history of collective bargaining: that,
since 1963, the Employer' has been bargaining with
the Intervenor in the unit as set out in the most recent
collective-bargaining agreement.'s
The Employer and the Intervenor take the position
that the unit set out in footnote 12, supra, is appropri-
" PRMMI since 1974. and its predecessor. Sealand Services. Inc.
12 That unit description as set out in the "Recognition" article of the col-
lective-bargaining agreement is as follows
The Company recognizes the Union as the sole and exclusive bargaining
agent for all office and clerical employees working at the locations iden-
tified in Appendix "A" and such operating units for which during the
term of this Agreement, it may be certified by the National Labor Rela-
tions Board or recognized by the Company as the exclusive bargaining
representative, and all such employees are referred to whenever the term
"employee" is used in this Agreement. Executives, secretaries to execu-
tives. professionals, administrative employees functioning at least at the
level of supervisors and not performing bargaining unit work, confiden-
tial employees, salesmen and supervisory employees with authonty to
hire, transfer, suspend, lay off, recall. promote, discharge or discipline
other employees, or effectively to recommend such action, if in connec-
tion with the foregoing, the exercise of such authority is not of merely
routine nature, but requires the use of independent judgement sic], are
excluded. The terms in the Recognition Article are used as defined by
the NLRB.
Appendix A reads as follows:
This Agreement covers all of
locations are as follows:
Fleet and Bombas Streets
Elizabeth. NJ 07207
I World Trade Center
New York City. NY
209 Dunmar Building
Dundalk Marine Terminal
2700 Broening Highway
Baltimore, MD 21222
2700 France Road
New Orleans. LA 70186
30 Mantime and Faragate
Streets
Blout Island
Jacksonville FL 32203
2 Charlotte Street
Charleston, SC 29403
Buchanan Terminal
Intersection Road to Catano
Pueblo Viejo, PR
the Company's OPEIU members. The
Shed D
Control Building
Central Market Area
Port Area
Puerto Nuevo. PR
Municipal Pier
Playa Ponce
Ponce, PR
Ponce Terminal
Free Zone Port Area
Mayaguez, PR
Isla Grande Terminal
Isla Grande Airport
San Juan. PR
Kilometer 2.5
Kennedy Highway
Puerto Nuevo. PR
ate. The Petitioner contends that the petitioned-for
smaller unit is appropriate herein."
In the absence of any evidence contrary to the
stipulated bargaining history and most recent collec-
tive-hargaining agreement. we find the employerwide
unit to he appropriate.
Therefore, we find that, under the circumstances of
this case, the appropriate unit under Section 9(b) of
the Act is: '4
All office clerical employees of the Employer em-
ployed at its Elizabeth. New Jersey: New York,
New York: Baltimore, Maryland: New Orleans.
Louisiana: Jacksonville. Florida: Charleston.
South Carolina: Pueblo Viejo. Puerto Nuevo,
Ponce. Mayaguez, and San Juan. Puerto Rico,
locations: excluding managerial employees, sec-
retaries to managerial employees, confidential
employees, professional employees, guards and
supervisors as defined in the Act.' 5
[Direction of Election" omitted from publica-
tion.]'"
MEMBER PENFIILo(), dissenting:
I dissent on the jurisdictional issue for the reasons
set forth in my dissenting opinion in National Mari-
lime Union of A4rmerica, AFLCIO (Puerto Rico Ma-
rine Management, Inc.). 227 NLRB 20 (1976).' 8 and,
13 The collective-bargaining history and the most recent collectie-hargain-
ing agreement comprise the sum total of the evidence adduced on the unit
question.
14 We have modified the language as set out in the collective-bargaining
agreement so as to conform to the usual idiom of Board certification
15 The recognition article in the collective-bargaining agreement referred
to "elxecuties, secretaries to executives, landl administrative employees
functioning at least at the level of supervisors not performing bargaining unit
work .. . We have used the word "managerial" to refer to executives."
and have included the "administratise employees" referred to above in our
standard supervisors classification.
The classification of "secretaries to executives" is referred to b> "secre-
taries to managerial employees.' Although these employees are normall
included in this type of unit unless the) are shown to possess supervisory or
confidential status, we shall, based upon the bargaining history. and upon
the apparent agreement of the parties the Petitioner having also specifically
excluded these employees in its petitioned-fi)r unit exclude them from the
unit found appropriate herein.
16 As we have found appropriate a unit substantially different from that
sought by the Petitioner herein, the Petitioner shall be given 10 days from the
date of this Decision and Direction of Election to make an additional show-
ing of interest. If the Petitioner fails to make the requisite showing of interest.
the Regional Director is directed to dismiss the petition herein. If the Peti-
tioner does not nov' wish to participate in an election in the unit we find
appropriate herein, we shall permit it to withdraw its petition upon written
notice to the Regional Director within 10 days from the date of this Decision
and Direction of Election.
i [Excelrior footnote omitted from publication.]
'B I continue to apply the "intimate connection" test. my position in this
area having been most recently discussed in the dissent in Nairnal Transpor-
tation Servirce. Iac. 240 NLRB A No. 99 ( 1979)
I take this opportunity to note, in disagreement with the conclusion
reached by Member Murphy (see fn 10, supra). that the dissent in National
Transporration Senice speaks directly to the situation under consideration
herein. Thus, whether or not PRMSA and/or PRMMI is a "commercial
enterprise 'paralleled by employers in the private sector' " is not the critical
((ontinued)
183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further, because the Employer herein is now wholly
owned by Puerto Rico Marine Shipping Authority,
hereinafter PRMSA, itself an instrumentality of the
Commonwealth of Puerto Rico. Thus, not only is
factor on which the analysis should turn Rather. iur exlmination must
revolve around the fact that the Commonwealth of Puerto Rico has deemed
that it take responsibililt "for the maritime transportation between Puerto
Rico and abroad" and, further. that the Commonwealth of Puerto Rico has
specifically) provided for the creation of an instrumentality (PRMSA) to
'provide this essential service wholly or partially. as long as the public inter-
est, health and welfare of its citizens may require." Act of the Puerto Rico
Maritime Shipping Authority. Act No. 62 (approved June 10, 1974) It is
PRMMI intimately connected with the exempt op-
erations of PRMSA, but PRMMI itself is also now
directly tied to the Commonwealth of Puerto Rico
through the umbilicus of PRMSA.
clear, then, that, whether the services performed by PRMMI are commercial
or nt,. they are in fact directly and solely related to the purposes for which
PRMSA was created by the Commonwealth of Puerto Rico. Moreover, and
as I have noted infira PRMMl's relationship to PRMSA is no longer that of
an independent contractor, for they are now tied, one to the other. through
the bond o ownership. I thus have difficulty perceiving the distinction be-
tween the acts of this case and those of National Transportation Service.
184