San Juan Mercantile Corp.

National Labor Relations Board - Board Decisions

Jan 4, 1957

117 N.L.R.B. 8 (N.L.R.B. 1957)

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All office clerical employees, excluding professional employees,i-
managerial and confidential employees, guards, all other employees,6
and supervisors as defined in the Act.
All plant clerical employees including timekeepers, but excluding
professional employees , managerial and confidential employees,
guards, all other employees,7 and supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication.]
cal units. The timekeepers work from stations on the production floor and time the work
of production employees . They work the same shift hours as the employees whose work
they time. We find contrary to the Petitioner 's contention , that the timekeepers are plant
clerical employees, and accordingly we shall include them in the plant clerical unit. Baden-
hausen Corporation, 113 NLRB 867.
6 The parties agreed that the following employees should be specifically excluded from
any unit or units found appropriate : Employees of the industrial relations department,
chief accountant , assistant chief accountant, budget analysts , cost accountants , artists,
technical illustrators , photographer-printer, designers, engineers , laboratory assistants,
laboratory helpers , draftsmen , model shop employees , chemists, laboratory technicians,
timestudy and methods analysts , methods engineers , tool designers, quality control ana-
lysts , outside expediters , traveling auditors , collectors , cashiers , sales representatives,
field service men, and secretaries to the sales manager , chairman of the board , division
manager, assistant division manager, manager of factory accounting, manager of general
accounting , works manager , director of purchases , and director of engineering.
4 Ibid.
San Juan Mercantile Corporation and Jose A . Cintron Rivera (on
behalf of 17 other employees), Petitioner and International
Longshoremen 's Association, District Council of the Ports of
Puerto Rico, Local 1575
San Juan Mercantile Corporation and ILA, District Council of
the Ports of P. It, ILA-IND., Petitioner
San Juan Mercantile Corporation and its agent Orlando Bravo
and ILA, District Council of the Ports of P. R ., ILA-IND., Pe-
titioner. Cases Nos. 24-RD-27, 24RC-922, and 24-RC-924. Jan-
uary 4,1957
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Robert J. Cannella, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Decertification Petitioner in Case No. 24-RD-27, an em-
ployee of the Employer, asserts that International Longshoremen's
Association, District Council of the Ports of Puerto Rico, Local 1575,
117 NLRB No. 3.
SAN JUAN MERCANTILE CORPORATION 9
hereinafter referred to as ILA-1575, which is currently recognized by
the Employer, is no longer the representative of certain employees of
the Employer as defined in Section 9 (a) of the Act.
ILA, District Council of the ports of P. R., ILA-IND., hereinafter
referred to as ILA, the Petitioner in Cases Nos. 24-RC-922 and
24-RC-924; Union de Trabajadores de Muelles y Ramas Anexas de
P. R., District Council #15, IBL-AFL-CIO, hereinafter referred to
as UTM; Union de Estibadores de Mayaguez, P. R. Ind., hereinafter
referred to as UEM; and Union de Empleados de Muelles de P. R.,
Local 1901, IBL-AFL-CIO, hereinafter referred to as UDEM (the
latter three unions being Intervenors in Cases Nos. 24-RC-922 and/or
24-RC-924) are labor organizations claiming to represent certain em-
ployees of the Employer.
3. For the reasons set forth in paragraph numbered 4, below, ques-
tions affecting commerce exist concerning the representation of em-
ployees of the Employer, within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act, in Cases Nos. 24-RC-922 and
24-RC-924;1 but none exists in Case No. 24-RD-27.
Cases Nos. 24-RD-27 and 24-RC-922
4. The Decertification Petitioner in Case No. 24-RD-27, an em-
ployee of the Employer, asserts that ILA-1575, is no longer the collec-
tive-bargaining representative of the Employer's checkers at the Em-
ployer's operations in the port of San Juan.2 ILA-1575 contends that
checkers alone do not now constitute an appropriate unit, and that the
only appropriate unit should include both the Employer's stevedores
and checkers at the port of San Juan. In Case No. 24-RC-922, ILA,
which is now the recognized bargaining agent of the Employer's
stevedores at the port of San Juan, seeks an election in a unit that
includes both these stevedores and the checkers in question. UTM
seeks to represent the Employer's stevedores at the port of San Juan,
but unlike the ILA, would exclude the checkers from such unit. The
Employer takes no position on these matters.
The record reveals that -the Employer's checkers at the port of
San Juan perform, essentially, the clerical work involved in delivering
cargo to consignees and receiving cargo from shippers on the Em-
ployer's piers and in the Employer's warehouses. In performing this
work checkers are separately supervised. Their services, moreover,
are utilized whether or not ships are at the docks. On the other hand,
I The Employer presently recognizes the ILA, Petitioner in Cases Nos 24-RC-922 and
24-RC-924, as the sole collective-bargaining representative of its employees in the units
sought by the ILA. The ILA, nevertheless , desires to receive a formal Board certification.
See General Box Company , 82 NLRB 678.
2 It appears that the term checkers used in this record includes delivery clerks, receiv-
ing clerks , tally clerks , and gatemen.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stevedores load and unload cargo from ships, and are employed only
when ships are at the docks. Because of differences in the nature of
their work, checkers, unlike stevedores, are not hired from a shapeup,
have a greater semblance of permanency of employment, and are paid
on a weekly basis. In addition, checkers receive 5 cents per hour more
than the stevedores, and do not work the same hours.
However, despite these differences, the collective-bargaining history
reveals that these checkers and stevedores have been customarily in-
cluded in the same bargaining unit. Thus, on October 24, 1950, at a
time when the Employer was a member of the Puerto Rico Steamship
Association, the ILA and the Association entered into a collective-
-bargaining agreement which included, in the same unit, stevedores
and checkers employed by the members of the Association.' This
-agreement was thereafter amended and extended to December 31, 1953.
On June 30, 1953, the Employer withdrew from membership in the
Association, but continued to operate under the Association's bar-
gaining agreement with the ILA. Subsequently, the Employer and
the ILA specifically agreed to extend to December 31, 1955, the As-
sociation's contract insofar as it applied to both the Employer's
stevedores and checkers.
On March 4, 1955, ILA-1575 was certified by the Board as the ex-
clusive bargaining agent of the Employer's checkers at the port of
San Juan 4 However, on March 15,1955, the Employer and ILA-1575
entered into an agreement providing that the Employer's checkers
would continue to be covered by the "current" contract that also
covered the Employer's stevedores. Subsequently, on February 17,
1956, the Employer and the ILA amended and extended to December
31, 1957, the collective-bargaining agreement covering both the Em-
ployer's stevedores and checkers.
In view of the foregoing, it is clear that even though the Board, in
early 1955, found that the Employer's checkers at the port of San Juan
constituted a separate appropriate unit, the Employer, ILA-1575, and
the ILA have since continued to bargain for the Employer's checkers
as part of a longstanding unit comprising both checkers and stevedores.
Under these circumstances , we find that the existing bargaining unit
is one which comprises both the Employer's stevedores and the Em-
ployer's checkers at the port of San Juan. As the Decertification
3 It appears that one local of the ILA was to represent the stevedores and another local
was to represent the checkers.
* San Juan Commercial Company , et al, 111 NLRB 599 The Board found, on a contract-
'bar issue , that as there was considerable dissension in the local representing the checkers
because of the expulsion of the ILA from the AFL , and as the "checker" local went out
of existence , the existing contract could not serve as a bar to an election However, in
that case , unlike the present case , the appropriateness of a separate checker unit was not
raised, the parties having agreed that the Employer's checkers at the port of San Juan
could constitute a separate appropriate unit.
SAN JUAN MERCANTILE CORPORATION 11
Petitioner is here seeking to decertify less than this existing unit, we
shall dismiss the decertification petition filed in Case No. 24-RD-27.5
In Case No. 24-RC-922, the ILA is now seeking to be certified as
the collective-bargaining representative in the existing unit compris-
ing stevedores and checkers at the port of San Juan. The UTM, on
the other hand, would exclude the checkers. The Employer takes no
position on this matter. Although the checkers have different job
functions and duties and do not interchange with the stevedores, both
are engaged in the performance of a phase of the principal function of
loading and unloading ships' cargoes. Moreover, from the nature of
their work, it appears that there is considerable contact between the
checkers and stevedores, and both have interests in common. Under
these circumstances, and as the checkers at the port of San Juan are
now, and have heretofore been, included in a unit with stevedores at
this port, we find that the broader unit is the appropriate unit and
shall direct an election therein.'
Case No. 24-RC-924
In this case the ILA seeks to be certified as the collective-bargaining
representative of the Employer's stevedores and checkers at the port of
Mayaguez. The Employer currently recognizes the ILA as collective-
bargaining representative of these employees. The UTM and UDEM,
Intervenors in this case, would exclude the checkers from the Unit .7
The Employer takes no position on this issue.
The facts concerning the position and duties of checkers and
stevedores at the port of Mayaguez are the same as those set forth
above for the port of San Juan. Moreover, the bargaining history for
the two ports is similar, showing that the Employer's checkers have
been bargained for as part of a stevedore unit for many years, and that
they are currently covered by an existing contract which includes
both the checkers and stevedores.8 Under these circumstances, and
6 United States Steel Corporation, American Steel and Wire Division, Cyclone Fence
Department ( not reported in printed volumes of Board Decisions and Orders ) ; see United
States Time Corporation , 108 NLRB 1435. Cf. Bull Insular Line, Inc. et al., 107 NLRB
674, 683 , where , based on a separate bargaining history for checkers , the Board granted a
separate unit of checkers . However, there , unlike the present case , no party was seeking
to include checkers with the stevedores . Cf. also San Juan Commercial Company, at al.,
supra, footnote 4.
8 See New York Shipping Association and its Members , 107 NLRB 364
1 The IIDEM was permitted to intervene at the hearing but submitted its showing of
interest to the Regional Director the day following the hearing . However, as it appears
that the showing of interest was dated before the close of the hearing, we shall permit the
UDEM to appear on the ballot . Cramet, Inc., 112 NLRB 975 ; General Electric Company,
89 NLRB 726, 728; United Boat Service Corporation, 55 NLRB 671, 675-676.
UEM was also permitted to participate at the hearing in this case but failed to submit
a showing of interest . Accordingly , we shall not accord it a place on the ballot in the
election hereinafter directed.
8 The Board has not previously directed a separate election for checkers at the port of
Mayaguez , as it did at the port of San Juan.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the reasons set forth above with respect to Case No. 24-RC-922,
we find that the appropriate unit in this case likewise includes the
Employer's checkers.
In accordance with our determinations herein, and on the basis of
the entire record, we find that the following constitute units appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
(A) All stevedores on shore and aboard ships, waterboys, winch-
men, sewers, hatchtenders, motormen, fingerlift operators, coopers,
mechanics, blacksmiths, carpenters, electricians, mechanic helpers,
blacksmith helpers, carpenter helpers, electrician helpers, laborers,
and all other workers, delivery and receiving clerks, tally clerks, gate-
men, and all employees engaged in the manual operation of loading
and unloading ships and the classification of cargo, maintenance of
equipment, piers, and warehouses working at the port of San Juan
for the Employer, excluding all office clerical employees, guards, and
supervisors as defined in the Act.
(B) All stevedores on shore and aboard ships, waterboys, winch-
men, sewers, hatchtenders, motormen, fingerlift operators, coopers,
mechanics, blacksmiths, carpenters, electricians, mechanic helpers,
blacksmith b elpers, carpenter helpers, electrician helpers, laborers, and
all other workers, delivery and receiving clerks, tally clerks, gatemen,
and all employees engaged in the manual operation of loading and
unloading ships and the classification of cargo, maintenance of equip-
ment, piers, and warehouses working at the port of Mayaguez for the
Employer and its agent Orlando Bravo, excluding all office clerical
employees, guards, and supervisors as defined in the Act.
5. The record shows that the employment of the stevedores herein
involved is intermittent. Accordingly, because they believed that in
these circumstances the Board's customary eligibility standard,
namely, those employees appearing on the payroll immediately pre-
ceding the date of the Board's Direction of Election, should not be
applied, the parties stipulated that all employees in the included classi-
fications, except the delivery and receiving clerks, tally clerks, and
gatemen, who have been employed by the Employer for a minimum of
210 hours between July 1, 1955, and June 30, 1956, should be eligible
to vote. The parties further agreed and stipulated that as the delivery
and receiving clerks, tally clerks, and gatemen have more permanent
employment, the Board's normal eligibility requirement should be
applied to these employees, and that only those delivery and receiving
clerks, tally clerks, and gatemen who were employed during the payroll
period immediately preceding the date of the Direction of Election
should be eligible to vote.
AMERICAN BROADCASTING COMPANY 13
We believe that by accepting the stipulation of the parties in its
entirety, we would disenfranchise certain otherwise included em-
ployees hired after June 30, 1956, who should be permitted to vote.
Accordingly, we hereby modify, in part, the parties' stipulation to
provide that all employees in the included classifications, except the
delivery and receiving clerks, tally clerks, and gatemen, who have
been employed by the Employer for a minimum of 210 hours within
the past 12-month period immediately preceding the date of the is-
suance of this Decision and Direction of Election, shall be eligible to
vote.9 We shall adopt the stipulation of the parties concerning the
eligibility of delivery and receiving clerks, tally clerks, and gatemen,
and hereby find that employees in these classifications who were em-
ployed during the payroll period immediately preceding the date of
this Decision and Direction of Elections are eligible to vote.
[The Board dismissed the petition in Case No. 24-RD-27.]
[Text of Direction of Elections omitted from publication.]
MEMBER BEAN took no part in the consideration of the above De•-
cision, Order, and Direction of Elections.
9 See American Pratt and Steamship Company, 88 NLRB 207.
American Broadcasting-Company , a Division of American Broad-
casting-Paramount Theatres, Inc., Columbia Broadcasting
System , Inc., National Broadcasting Company, Inc. and Com-
posers and Lyricists Guild of America , Petitioner. Case
No. 1-RC-4231. January 4, 1957
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act,' a hearing was held before Norman H. Greer,
hearing officer .2 The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.'
i The original petition also named Don Lee Broadcasting Company as an Employer, and
requested a unit of employees of the Employers employed at Los Angeles, Chicago, and
New York At the hearing, Petitioner amended its petition to delete all reference to
Don Lee Broadcasting Company and to the Employers' employees located in Chicago.
2 The request for oral argument of Songwriters Protective Association, herein called
SPA, is hereby denied as, in our opinion , the record and briefs adequately present the
issues and the positions of the parties
a The hearing officer granted the Employers a continuing exception to his ruling that
testimony and evidence regarding composers' relations with the Employers be permitted
to cover a 1-year period prior to the commencement of the hearing in this case. In view
of the casual and intermittent nature of such relationships , here in issue , the hearing
officer's ruling is affirmed. _
117 NLRB No 4.