957 F.2d 933 (1st Cir. 1992), 91-1705, Colon Velez v. Puerto Rico Marine Management, Inc.

Docket Nº:91-1705, 91-1735.
Citation:957 F.2d 933
Party Name:Wilfredo COLON VELEZ, et al., Plaintiffs, Appellees, v. PUERTO RICO MARINE MANAGEMENT, INC., Defendant, Appellant. Wilfredo COLON VELEZ, et al., Plaintiffs, Appellees, v. PUERTO RICO MARINE MANAGEMENT, INC., Defendant, Appellee, International Longshoremen Association, Local 1575, Defendant, Appellant.
Case Date:February 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 933

957 F.2d 933 (1st Cir. 1992)

Wilfredo COLON VELEZ, et al., Plaintiffs, Appellees,

v.

PUERTO RICO MARINE MANAGEMENT, INC., Defendant, Appellant.

Wilfredo COLON VELEZ, et al., Plaintiffs, Appellees,

v.

PUERTO RICO MARINE MANAGEMENT, INC., Defendant, Appellee,

International Longshoremen Association, Local 1575,

Defendant, Appellant.

Nos. 91-1705, 91-1735.

United States Court of Appeals, First Circuit

February 28, 1992

Heard Jan. 9, 1992.

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Rafael Cueves Kuinlam with whom Cuevas Kuinlam & Bermudez, Hato Rey, P.R., was on brief for Puerto Rico Marine Management, Inc.

Nicholas Delgado Figueroa, Santurce, P.R., for International Longshoremen Ass'n, Local 1575.

Ana Rosa Biascoechea, Hato Rey, P.R., for appellees.

Before CYR, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

This appeal stems from an action under section 301 of the Labor Management Relations Act, 1947 ("Act"), 29 U.S.C. § 185, that the plaintiffs-appellees, Wilfredo Colon Velez, et al., brought against the defendants-appellants, Puerto Rico Marine Management, Inc. ("PRMMI") for breach of a collective bargaining agreement and International Longshoremen Association, Local 1575 ("Local 1575") for breach of its duty of fair representation. The district court granted summary judgment in favor of the plaintiffs-appellees. 693 F.Supp. 1335. The major issue on this appeal is whether § 9(b)(3) of the Labor Management Relations Act--which prohibits the N.L.R.B. from certifying a bargaining unit including both guards and non-guards--entitles an employer to breach its voluntary collective bargaining agreement with such a unit, and a union to refrain from pressing the grievance of the guard members thereof. There are three other issues: 1) whether PRMMI and Local 1575 could exclude the appellees from the collective bargaining

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agreement; 2) whether Local 1575 breached its duty of fair representation to the appellees; and 3) whether pre-judgment interest was properly awarded and computed.

BACKGROUND

As the appellants appeal a grant of summary judgment, we view the facts of the case and inferences to be drawn therefrom in the light most favorable to them. See Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988).

The appellees are twenty-eight gatemen/guards 1 who were employed by PRMMI since the beginning of its operation as administrator of the Puerto Rico Maritime Shipping Authority in 1974. At the time, Local 1575 served as the union representative for both the production and maintenance workers and for the guards as members of one bargaining unit at the "Load on-Load off" facilities in San Juan. PRMMI voluntarily recognized Local 1575 as the bargaining representative for such employees. PRMMI also employed guards who were not affiliated with Local 1575 at its Isla Grande facilities and subcontracted guard services to Wackenhut Corporation at both its Mayaguez and Ponce facilities.

In 1977 when negotiating a master contract with Local 1575, PRMMI proposed the elimination of employees who performed guard-type work from the bargaining unit. PRMMI eventually withdrew this proposal and included gatemen/guards at the "Roll on-Roll off" facilities in San Juan in the collective bargaining agreement. In March 1979, Local 1575 demanded the inclusion of all guards in the bargaining unit, including those at the Ponce facility. PRMMI agreed. During the negotiations for both the 1980-83 and 1983-86 collective bargaining agreements, PRMMI again proposed the elimination of guards from the bargaining unit. In reiterating its proposal in 1985, PRMMI gave as its reason rising insurance costs due to inadequate security services which had allegedly resulted in stolen property and vandalism. Local 1575 rejected the proposal at all times. The final collective bargaining agreement agreed upon by both Local 1575 and PRMMI included the guards and was effective until September 30, 1986.

The guards were all bona fide members of Local 1575. They paid union dues and received the full benefits of representation, including grievance processing. The relationship of the guards to Local 1575 did not change until February 12, 1986, when they were discharged by PRMMI. From 1974 to the date of the appellees' discharge, both PRMMI and Local 1575 knew that the appellees performed both gatemen and guard work and that the guard work predominated. During this period, PRMMI and Local 1575 entered into four collective bargaining agreements which contained identical clauses that: 1) required a "just and reasonable cause" standard for discipline, suspension, or discharge of employees; 2) established a seniority system; 3) prohibited PRMMI from subcontracting any work covered under the agreement unless it was negotiated by the parties and the subcontractor obliged itself to honor the contract; and 4) established a grievance procedure that culminated in binding arbitration to resolve "any incident, dispute, claim or controversy" between the parties over the interpretation and implementation of the agreement.

During Local 1575's participation in a seven-day national strike in October 1984, PRMMI hired additional security personnel. The appellees did not participate in the strike. 2

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In February 1985, PRMMI instructed the vice-president of security to solicit bids from private security firms for the subcontracting of guard services. On June 25, 1985, Local 1575 filed a complaint in federal district court requesting an injunction against the rumored subcontracting of guard services. In settling the case, PRMMI and Local 1575 entered into a stipulation in August 1985 defining the exact duties of the "gatemen." The parties agreed that "gatemen" were "to check the number of trailer 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."

On December 13, 1985, PRMMI contracted with Wackenhut Corporation for guard services to commence on February 3, 1986. The Wackenhut guards would perform substantially the same work as the discharged guards and were to be paid $6.20 per hour. In contrast, the discharged guards were paid over $16.00 per hour.

In January 1986, Local 1575 became aware of PRMMI's subcontracting plans and instructed the guards to form a new union comprised exclusively of guards and to petition the National Labor Relations Board ("Board") for certification. This was done. The Board dismissed the petition as moot after PRMMI discharged the appellees. On January 28, 1986, PRMMI formally notified Local 1575 that it was planning to subcontract out the guard services to Wackenhut. PRMMI indicated to Local 1575 that it would honor all obligations under the collective bargaining agreement with respect to gatemen.

On February 12, 1986, seven months prior to the expiration of the collective bargaining agreement, PRMMI summarily discharged sixty-two of sixty-five gatemen/guards, including the appellees, and replaced them with Wackenhut guards. On May 23, 1986, Local 1575 filed an unfair labor practice charge against PRMMI before the Board, alleging violations of § 8(a)(1) and 8(a)(5)...

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