Colon Velez v. Puerto Rico Marine Management, Inc.
| Decision Date | 19 July 1988 |
| Docket Number | Civ. No. 86-1272(JP). |
| Parties | Wilfredo COLON VELEZ, et al., Plaintiffs, v. PUERTO RICO MARINE MANAGEMENT, INC., and Asociacion Internacional De Estibadores and/or International Longshoremen's Association, Local 1575 AFL-CIO, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Ana Rosa Biascoechea, Hato Rey, Puerto Rico, for plaintiffs.
Rafael Medina Zerpa, Hato Rey, Puerto Rico, for codefendant Puerto Rico Marine Management.
Nicolás Delgado Figueroa, Santurce, Puerto Rico, for codefendant Int'l Longshoremen's Assoc.
This is a case under § 301 of the Labor Management Relations Act of 1947, 29 U.S. C. § 185, and is before this Court on the parties' cross motions for summary judgment on the question of liability. Twenty-nine named plaintiffs were discharged from their positions as gatemen/guards ("porteros") when defendant Puerto Rico Marine Management, Inc. (PRMMI) eliminated their positions and replaced them with guards provided by the Wackenhut Corporation on a subcontract.
The plaintiffs claim that PRMMI breached the collective bargaining agreement when it contracted for guard services and discharged the plaintiffs without submitting the issue to bargaining, and that Local 1575 of the International Longshoreman's Association breached its duty of fair representation when it failed to press the plaintiffs' grievances. Each plaintiff claims $115,000.00 in damages and asks the Court for reinstatement with back pay and seniority.
In addition to the facts stipulated at the Initial Scheduling Conference, see unpublished Order of October 26, 1987,1 the Court considers the following facts to be undisputed:
PRMMI began operating in Puerto Rico in 1974. (Defendant PRMMI's Statement of Material Facts, p. 1) At the time, PRMMI voluntarily recognized ILA Local 1575 as representative both for the production and maintenance workers and for the guards, as members of one bargaining unit, at the Lo-Lo facilities in San Juan. In addition, PRMMI employed guards who were not affiliated with ILA at the Isla Grande facilities, and it subcontracted guard services to Wackenhut at both the Mayaguez and Ponce facilities. (Defendant PRMMI's Statement of Material Facts, p. 1). When negotiating a master contract with ILA in 1977, PRMMI proposed the elimination of those porteros who did guard-type work from the bargaining unit. (Defendant PRMMI's Statement of Material Facts, p. 1, 2). This proposal was ultimately withdrawn, and the porteros at the Ro-Ro facilities in San Juan were added to the collective bargaining agreement. (Defendant PRMMI's Statement of Material Facts, p. 2; Plaintiffs' Statement of Material Facts, p. 3). In March 1979, Local 1575 demanded that all guard services be included in the bargaining unit, including those at the Ponce facility, and PRMMI acquiesced. (Defendant PRMMI's Statement of Material Facts, p. 2).
PRMMI proposed eliminating the guards from the bargaining unit in negotiations over the 1980-83 and 1983-86 collective bargaining agreements. (Defendant PRMMI's Statement of Material Facts, p. 2, 3). PRMMI made the proposal once again in 1985, citing rising insurance costs due to inadequate security services which resulted in stolen property and vandalism. (Defendant PRMMI's Statement of Material Facts, p. 3). This proposal was rejected by the ILA. (Defendant PRMMI's Statement of Material Facts, p. 3).
Thus Local 1575 began its representation of PRMMI porteros in 1974, and by 1979 it was the representative of all the porteros. The porteros paid union dues and received the full benefits of representation, including grievance processing. (Plaintiff's Exhibit, Juan Vélez Rodríguez affidavit, p. 1, 2). The relationship of the porteros to Local 1575 did not change until February 12, 1986, when the porteros were discharged. Throughout the period, both PRMMI and Local 1575 were aware that the porteros performed both gatemen-type work and guard-type work, and that guard-type work predominated. The porteros were all guards within the meaning of the National Labor Relations Act. (Unpublished Settlement Conference Order of this Court, January 16, 1987).
During a seven-day national strike by the ILA in October, 1984, PRMMI hired additional security personnel, but the porteros did not participate in the strike. (Plaintiff's Exhibit, Luis Colón Ramos affidavit, p. 2).
In February 1985, the vice-president of security for PRMMI was instructed to solicit bids from private security firms for the subcontracting of guard services. (Casaine affidavit, p. 2).
On June 25, 1985, Local 1575 filed a complaint in this Court, requesting an injunction against a rumored subcontracting of guard services. In an attempt to settle this disagreement, PRMMI and Local 1575 entered into a stipulation in August 1985, which defined the exact duties of "gatemen". (Colón affidavit, p. 1, 2). In the stipulation, the parties agreed that the responsibilities of gatemen were "to check the number of trailers and vans that leave the premises to ensure they are correct according to a card, or to receive from the driver a pass, check the bills of lading, check the entrance and exit of cars."
In December 1985, the company approved the selection of Wackenhut as security services subcontractor (Ryan affidavit, p. 1, 2). The contract between PRMMI and Wackenhut was executed on December 13, 1985, with services to begin on February 3, 1986. (Carreras affidavit, p. 1).
Local 1575 became aware of the subcontracting plans in early 1986, and at that time PRMMI indicated to Local 1575 that it would honor all obligations under the collective bargaining agreement with respect to gatemen. (Carreras affidavit, p. 1). In response, the union counseled the porteros to form a new union exclusively comprising guards. Mr. Francisco Saurí filed a petition with the National Labor Relations Board seeking representation by Union de Guardianes Independientes. (Plaintiff's Exhibit, Juan Vélez Rodríguez affidavit, p. 4). The case was ultimately dismissed as moot after the plaintiffs were discharged. (Plaintiff's Statement of Material Facts, ¶ 47).
On February 12, 1986, PRMMI discharged 62 of 65 porteros. (Plaintiff's Statement of Material Facts, ¶ 45). The collective bargaining agreement between PRMMI and Local 1575 was to expire on September 30, 1986. (Plaintiff's Statement of Material Facts, ¶ 16).
The Wackenhut guards were substituted for the porteros and subsequently performed substantially the same work. (Plaintiff's Amendment to Statement of Material Facts, p. 2). The cost to PRMMI of Wackenhut guards was $6.20 per hour. (Plaintiff's Statement of Material Facts, ¶ 34). The cost to PRMMI of the Local 1575 porteros was over $16.00 per hour.
On May 23, 1986, Local 1575 filed an unfair-labor-practice charge against PRMMI, alleging violations of §§ 8(a)(1) and 8(a)(5) of the NLRA in the unilateral subcontracting of the porteros, in NLRB Case No. 24-CA-5378. (Plaintiff's Statement of Material Facts, ¶ 67). The NLRB refused to issue a complaint in this case because the union had failed timely to request bargaining over the decision. (Plaintiff's Exhibit I, # 2 — October 10, 1986, Memorandum of Harold J. Datz). In April and June, 1986, Local 1575 requested job preference for the porteros in other unit classifications. Although PRMMI agreed to consider this request, the agreement was never formalized or implemented. (Plaintiff's Statement of Material Facts, ¶ 62).
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Arriaga v. I.L.G.W.U.-Puerto Rico Council, 656 F.Supp. 309 (D. Puerto Rico 1987). Pursuant to Local Rule 311.12, the parties have submitted statements of material facts, sworn statements, and supporting documents. Most of the facts are undisputed, and those few that are controverted are immaterial to the issues before the Court. Thus the only questions for the Court are legal ones, and the matter is ripe for resolution by summary judgment.
In hybrid § 301 cases, i.e., cases in which the employees assert breach of contract by the employer as well as breach of duty of fair representation by the union, the plaintiffs have the burden of showing (1) that the discharge was contrary to the contract, and (2) that the union breached its duty. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976).
The breach of contract question is at first blush relatively straightforward. Article VI, Clause 38, clearly requires bargaining over subcontracting:
The Company will not subcontract any work covered by the Contract, unless it is negotiated by the parties and the subcontractor obliges himself to honor the contract subscribed by the Company; and the Company will guarantee the payments that the subcontractor will be obliged to make to the Welfare Fund.
The Wackenhut subcontract and the consequent discharge of the sixty-two porteros was clearly not negotiated and thus violated the collective bargaining agreement.2
The defendants argue that there was no duty to bargain over subcontracting of guard services because the porteros were not parties to the collective bargaining agreement.3 The defendants base their argument on § 9(b)(3) of the National Labor Relations Act:
(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or sub...
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