Appendix — International Longshoreman's Ass'n, Local 1922 v. National Labor Relations Board

hex

la

APPENDIX A — PER CURIAM OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT DATED AND FILED

JANUARY 17, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 01-12067

D.C. Docket No. 00-02003-CV-JLK

LONGSHOREMAN, INTERNATIONAL

LONGSHOREMAN’S ASSOCIATION LOCAL 1922,

Plaintiffs-Appellants,

versus

NATIONAL LABOR RELATIONS BOARD,

SEABOARD MARINE, LTD.,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Florida

(January 17, 2002)

- Before MARCUS, FAY and WINTER*, Circuit Judges.

* Honorable Ralph K. Winter, Jr., U.S. Circuit Judge for the

Second Circuit, sitting by designation.

2a

Appendix A

PER CURIAM:

AFFIRMED. See 11th Cir. R. 36-1**

** 11th Cir. R. 36-1 provides:

When the court determines that any of the following |

circumstances exist: |

(a) judgment of the district court is based on

findings of fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is

sufficient;

(c) the order of an administrative agency is

supported by substantial evidence on the record

as a whole;

(d) summary judgment, directed verdict, or

judgment on the pleadings is supported by the

record;

(e) judgment has been entered without a reversible

error of law; and an opinion would have no

precedential value, the judgment or order may

be affirmed or enforced without opinion.

3a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF FLORIDA, MIAMI DIVISION

DATED MARCH 14, 2001 AND

FILED MARCH 19, 2001

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 00-2003-CIV-KING

INTERNATIONAL LONGSHOREMAN’S

ASSOCIATION, LOCAL 1922,

Plaintiff,

V.

NATIONAL LABOR RELATIONS BOARD

AND SEABOARD MARINE LIMITED,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTIONS TO

DISMISS AMENDED COMPLAINT FOR

DECLARATORY JUDGMENT

THIS CAUSE comes before the Court upon Defendant

National Labor Relations Board’s Motion to Dismiss

Amended Complaint for Declaratory Judgment filed

November 27, 2000 and Defendant Seaboard Marine

Limited’s Motion to Dismiss Amended Complaint for

Declaratory Judgment filed December 8, 2000. Plaintiff

4a

Appendix B

International Longshoreman’s Association, Local 1922

(“Local 1922”), filed a Response on January 8, 2001.

Defendant Seaboard Marine Limited (“Seaboard”) filed a

Reply on January 19, 2001. Defendant National Labor

Relations Board (“NLRB” or the “Board”) filed a Reply on

March 2, 2001.

Seaboard is a business that transports cargo between the

United States and various destinations in the Americas.

Seaboard conducts part of its shipping business at the

Port of Miami and stores cargo in the 36th Street Yard.

(See Amend. Compl. 3). Local 1922 is a labor union affiliated

with the International Longshoreman’s Association, AFL-

CIO. On November 25, 1997, Local 1922 filed a petition

with the NLRB to designate certain classes of Seaboard’s

employees as a unit for collective bargaining purposes.

(See Amend. Compl. 418). Local 1922 petition covered 17

employees from three job classifications. Seaboard filed

objections to Local 1922’s petition on the grounds that the

only appropriate bargaining unit was a wall-to-wall, including

about 198 employees from fifteen job classifications.

The NLRB Acting Regional Director conducted an

evidentiary hearing on December 12, 1997 to determine the

appropriate bargaining units. The Acting Regional Director

concluded that the 17 employees of the three job classification

shared a sufficient community of interest and certified them

as a unit. (See Amend. Compl., Ex. A, NLRB Decision Dated

January 9, 1998). Seaboard filed a timely request for the

NLRB to review its Acting Regional Director’s decision.

On February 4, 1998, the NLRB granted Seaboard’s request

stating that the Acting Director’s decision “raises substantial

issues warranting review.”) (Amend. Compl. Ex. B, February

5a

Appendix B

4, 1998 NLRB Order). On February 5, 1999, the NLRB

reversed the Acting Regional Director’s decision and vacated

the election held on February 5, 1998. The NLRB remanded

the case to the Regional Director to determine the appropriate

unit for collective bargaining, the adequacy of the Local

1922’s showing of interest in such a unit and the scheduling

of a new election. (See Amend. Compl., Seaboard Marine,

Ltd., 327 NLRB 108 (1999)). The NLRB found that the

Acting Regional Director’s decision was contrary to

“well established [NLRB law] that the Board does not

approve fractured units, i.e., combinations of employees that

are too narrow in scope or that have no rational basis.” (/d.).

On March 26, 1999, the Regional Director issued a

Supplemental Decision and Direction of Election in which

she concluded that the only appropriate unit was an overall

unit of employees. (See Amend. Compl., Ex D., Supplemental

Decision). Local 1922 requested for the NLRB to review the

Acting Director’s Supplemental Decision. However, the

NLRB denied Local 1922 request for failure to raise any

issues warranting review. (See Amend. Compl., Ex. E).

Local 1922 filed suit on June 6, 2000 and amended its

Complaint on October 16, 2000 against NLRB and Seaboard.

In Local 1922’s Amended Complaint for Declaratory

Judgment, it seeks declaratory judgments pursuant to

28 U.S.C. § 2201 that the NLRB violated its own rules and

regulations and statutory directives by reviewing and/or

reversing a decision by the Acting Regional Director in a

representation case and that the NLRB violated Local 1922

and Seaboard employees’ constitutional due process rights

by denying Seaboard’s employees the right to select a

bargaining representative as authorized under the Nation

6a

Appendix B

Labor Relations Act. Specifically, Local 1922 requests that

this Court reinstate the NLRB’s Acting Regional Director

original decision that the trailer interchange clerks, vehicle

and equipment receiving clerks, and equipment control clerks

are an appropriate unit for bargaining purposes and recognize

the ballots from the election held on February 15, 1998 as

the true expression of the unit members’ will. The NLRB

moves for dismissal of the Amended Complaint on the

grounds that this Court lacks subject matter jurisdiction over

- the Local 1922 claims, for failure to state a claim upon which

relief can be granted and for failing to comply with

Fed.R.Civ.P. 10(b). Seaboard seeks dismissal of the Amended

Complaint on the same grounds as NLRB moves.

II. Legal Standard

Dismissal is justified only when “it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” See Hartford Fire

Ins. Co. v. California, 509 U.S. 764, 810 (1993) (quoting

McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S.

232, 246 (1980)). The complaint at issue should be construed

in the light most favorable to the plaintiff, and all facts alleged

by the plaintiff are accepted as true. See Hishon, 467 US. at

73. Regardless of the alleged facts, however, a court may

dismiss a complaint on a dispositive issue of law. See

Marshall County Bd. of Educ. v. Marshall County Gas Dist.,

992 F.2d 1171, 1174 (11th Cir. 1993).

7a

Appendix B

III. Discussion

Under 29 U.S.C. § 159(b), the NLRB has the authorization

and responsibility to determine what constitutes an appropriate

bargaining unit.’ The NLRB has exclusive jurisdiction over

questions regarding representation. See Minn-Dak Farmers

Coop. Employees Org. v. Minn-Dak Farmers Coop., 3 F.3d

1. Section 159(b) of the National Labor Relations Act states that:

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 subdivision thereof:

Provided, That the Board shall not (1) decide that any unit

is appropriate for such purposes if such unit includes both

professional employees and employees who are not

professional employees unless a majority of such

professional employees vote for inclusion in such unit; or

(2) decide that any craft unit is inappropriate for such

purposes on the ground that a different unit has been

established by a prior Board determination, unless a

majority of the employees in the proposed craft unit vote

against separate representation or (3) decide that any unit

is appropriate for such purposes if it includes, together with

other employees, any individual employed as a guard to

enforce against employees and other persons rules to protect

property of the employer or to protect the safety of persons

on the employer’s premises; but no labor organization shall

be certified as the representative of employees in a

bargaining unit of guards if such organization admits to

membership, or is affiliated directly or indirectly with an

organization which admits to membership, employees other

than guards.

8a

Appendix B

1199, 1201 (8th Cir. 1993). It is settled law that NLRB

decisions regarding representations are generally directly

non-reviewable by district courts except in certain limited

circumstances. Federal courts have recognized three

circumstances where federal jurisdiction exists over

representation matters. See McCulloch v. Sociedad Nacional

de Marineros de Honduras, 1963, 372 U.S. 10, 17 (1963)

(finding federal jurisdiction where “public questions

particularly high in the scale of our national interest because

of their international complexion.”) (Id. at 17); Milk & Ice

Cream Drivers’ Union, Local 98 v. McCulloch, 306 F.2d 763

(U.S. App. D.C. 1962) (federal jurisdiction exists where the

NLRB has violated a constitutional right of the complaining

party); Leedom v. Kyne, 358 U.S. 184 (1958) (finding federal

jurisdiction where the NLRB had clearly acted “in excess of

its delegated powers and contrary to a specific prohibition

in the Act.”) Jd. at 188. In Boire v. Greyhound Corp., 376

U.S. 473, 476-77 (1964), the Court held that “[t)he [Leedom

v.] Kyne exception is a narrow one, not to be extended to

permit plenary district court review of Board orders in

certification proceedings whenever it can be said that an

erroneous assessment of the particular facts before the Board

has led it to a conclusion which does not comport with the

law.” Id. at 481. Local 1922 only relies on the constitutional

deprivation and Leedom v. Kyne exception as ground for this

Court’s jurisdiction.

NLRB argues that Local 1922 claims do not meet any of

the exceptions for the Court to exercise jurisdiction. On the

other hand, Local 1922 argues that its constitutional right as

codified in 29 U.S.C. § 157 for “[e]mployees shall have the

right to self-organization, to form, join, or assist labor

9a

Appendix B

organizations, to bargain collectively through representatives

of their own choosing” has been violated by Seaboard

employees’ ability to determine their own representatives.

In response, NLRB contends that Local 1922 failed to make

a clear and strong showing that the NLRB violated Local

1922 constitutional rights. This Court agrees.

Next, Local 1922 argues that the Leedom v. Kyne

exceptions applies here because the NLRB acted in excess

of “clear and mandatory” statutory provisions by not

articulating a reason for reviewing the Acting Regional

Director’s decision as required by 29 C.F.R. 102.67(c)’ and

exceeded its authority by reviewing the Acting Regional

Director’s decision. Local 1922’s Amended Complaint does

not allege that the NLRB violated a clear and mandatory

statutory provision as required for the Leedom v. Kyne

exception. This Court finds that Local 1922 failed to meet to

Leedom v. Kyne exception because under 29 U.S.C. § 159(b)

the NLRB has discretion to determine appropriate bargaining

units. See Computer Sciences Corp. v. NLRB, 677 F.2d 804,

2. (c) The Board will grant a request for review only where

compelling reasons exist therefor. Accordingly, a request

for review may be granted only upon one or more of

the follcwing grounds: (1) That a substantial question

of law or policy is raised because of (i) the absence of,

or (ii) a departure from, officially reported Board

precedent. (2) That the regional director’s decision on

a substantial factual issue is clearly erroneous on the

record and such error prejudicially affects the rights of

a party. (3) That the conduct of the hearing or any ruling

made in connection with the proceeding has resulted in

prejudicial error. (4) That there are compelling reasons

for reconsideration of an important Board rule or policy.

10a

Appendix B

807 (11th Cir. 1982). The instant case involves represeniation

matters, which are within the exclusive jurisdiction of the

NLRB. The NLRB is not mandated by statute to state specific

reasons when it decides to grant review of a NLRB

representation decision. See NLRB v. Sav-On-Drugs, Inc.,

709 F.2d 536 (9th Cir. 1983). Moreover, the NLRB found

that the Acting Regional Director’s decision “raises

substantial issues warranting review” in its February 4, 1998

NLRB Order and concluded that the Acting Regional

Director’s decision was contrary to established law. Hence,

the NLRB complied with its rules and regulations.

IV. Conclusion

Therefore, this Court concludes that it lacks subject

matter jurisdiction over Local 1922 claims.

Accordingly, after a careful review of the record, and

the Court being otherwise fully advised, it is

ORDERED and ADJUDGED that Defendant National

Labor Relations Board’s Motion to Dismiss Amended

Complaint and Defendant Seaboard Marine Limited’s Motion

to Dismiss Amended Complaint be, and the same are hereby,

GRANTED. All other pending Motions are hereby DENIED

as MOOT. It is further

ORDERED and ADJUDGED that the above-styled be,

and the same is hereby, DISMISSED with prejudice.

lla

Appendix B

DONE and ORDERED in chambers at the James Lawrence

King Federal Justice Building and United States District

Courthouse, Miami, Florida, this 14th day of March, 2001.

s/ James Lawrence King

JAMES LAWRENCE KING

U.S. DISTRICT JUDGE

SOUTHERN DISTRICT OF FLORIDA

cc: Margery E. Lieber, Esq.

Assistant General Counsel

for Special Litigation

Nation Labor Relations Board

1099 14th Street, N.W.

Washington, D.C. 20570

Counsel for Defendant National Labor Relations Board

Michael W. Casey, Ill

Muller, Mintz, Kornreich, Caldwell, Casey,

Crosland & Bramnick, P.A.

First Union Financial Center

Suite 360

200 South Biscayne Blvd.

Miami, Florida 33131-2338

Counsel of Defendant Seaboard Marine Limited

Jack R. Reiter, Esq.

Adorno & Zeder, P.A.

Suite 1600

2601 South Biscayne Drive

Coral Gables, Florida 33134

Counsel for Plaintiff

12a

APPENDIX C — DECISION AND DIRECTION OF

ELECTION OF THE UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS

BOARD, REGION 12 DATED JANUARY 9, 1998

EE eo a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 12

Case 12-RC-8176

f

-

f

:

:

t

:

;

‘

e

SEABOARD MARINE, LTD.'

Employer

and

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

LOCAL 1922, affiliated with INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION, AFL-CIO

Petitioner

DECISION AND DIRECT ION OF ELECTION

Upon a petition duly filed under Section 9c) of the National

Labor Relations Act, as amended, a hearing was held before a

hearing officer of the National labor Relations Board.

Pursuant to the provisions of Section 3(b) of the Act,

the Board has delegated its authority in this proceeding to

the undersigned.

1. The name of the Employer appears as amended at the hearing.

13a

Appendix C

Upon the entire record in this proceeding,’ the

undersigned finds:

1. The hearing officer’s rulings made at the hearing are

free from prejudicial error and are hereby affirmed.

2. The Employer is engaged in commerce within the

meaning of the Act, and it will effectuate the purposes of the

Act to assert jurisdiction herein.’

3. Petitioner is a labor organization within the meaning

of the Act.

4. Aquestion affecting commerce exists concerning the

representation of certain employees of the Employer within

the meaning of Section 9(c)(1) and Section 2(6) and (7) of

the Act.

The parties are in disagreement as to the scope and

composition of the unit. The Petitioner seeks a bargaining

unit limited to trailer interchange clerks, vehicle and

equipment receiving clerks and equipment control clerks

2. The briefs submitted by Petitioner and Employer have been

carefully considered.

3. The Employer is a Liberian corporation licensed to do

business in the State of Florida, with an office and place of business

located at the Port of Miami, Florida, where it is engaged in the

business of transporting cargo inside and outside the State of Florida.

During the past 12 months, the Employer, in conducting its business

operations derived gross revenues in excess of $50,000 for the

transportation of cargo from the State of Florida directly to points

outside the State of Florida.

l4a

Appendix C

employed by the Employer solely at its Port of Miami

terminal. Contrary to the Petitioner, the Employer contends

that in addition to the trailer interchange clerks, vehicle and

equipment receiving clerks and equipment control clerks

petitioned-for, the only unit appropriate for bargaining must

also include all remaining employees of the Employer at both

the Port of Miami terminal and at its 36" Street location,

including power mechanics (including welders), reefer

mechanics, trailer mechanics (including maintenance

employees), tiremen, parts and purchasing clerks, boarding

agents, equipment operators, stevedore coordinators, inbound

coordinators, claims clerks, dispatch employees (including

clock drivers, dispatchers, and compliance clerks), and

vehicle shuttlers. The Petitioner would proceed to an election

in any alternate unit if the Board determines that the

petitioned-for unit is inappropriate. The petitioned-for unit

includes about 17 employees while the unit urged by the

Employer would include about 198 employees.

The Employer is engaged in the business of transporting

cargo’ for importer and exporter customers between the

United States and primarily Central America, South America

and the Caribbean. The Employer has its administrative

office’ in Medley, Florida. The Employer’s shipping operation

is conducted on approximately 50 acres at the Port of Miami,

4. Cargo transported by the Employer includes dry goods,

perishables, heavy equipment and vehicles which are shipped in

refrigerated or dry containers and trailers or on flat-bed trailers, in

open containers or with no containers.

5. Neither party seeks to include any classification of employees

who work out of the Employer’s administrative office.

15a

Appendix C

hereinafter called the terminal, and, since 1991, has expanded

its operation to a 25-acre piece of land, hereinafter called

the 36" Street Yard,° located ‘“‘a couple of miles” from the

terminal. The Employer owns or leases over 22,000 pieces

of equipment for its operation: equipment that holds cargo,’

equipment that moves cargo,*® and equipment necessary to

maintain the aforementioned operational equipment. The

Employer is not involved in the direct loading or unloading

of customer cargo onto or off of seagoing vessels; rather, a

separate stevedoring company is employed for this operation.

The Employer’s vice-president of operations, Tom Paelinck,

who has an office located in the terminal, has overall

responsibility for the transportation operation at the terminal

and the 36" Street Yard. At the terminal; each of the 15

classifications urged by the Employer in a wall-to-wall unit

has separate supervision. At the 36" Street Yard, one foreman

supervises the mechanics and one foreman supervises the

remaining employees assigned to that location; both foreman

6. The 36" Street Yard is an expansion of the Employer’s

terminal operation necessitated by the Employer’s increased workload

and lack of available space at the terminal. The 36" Street Yard is

used primarily for the storage of empty trailers and the overflow of

empty containers returned from overseas which are in excess to those

needed at the terminal. The 36" Street Yard is also utilized by the

Employer for the repair of empty containers and trailers. No imported

or exported cargo is received or housed at the 36" Street Yard.

7. Equipment that holds cargo includes containers, trailers,

reefers (refrigerated containers or trailers), chassis and flatbeds.

8. Equipment that moves cargo includes forklifts, trucks,

top-loaders, cranes and “mule” trucks (specially designed short trucks).

16a

Appendix C

report to one supervisor, Juan “Pepe” Gonzales. Vice-President

of Operations Paelinck testified that the stipulated supervisors

at the terminal and stipulated supervisor Gonzales from the

36" Street Yard report to him.?

There are employees in all 15 classifications the Employer

seeks to include in the unit, including the three petitioned-for

classifications, who perform duties at the terminal. Additionally,

employees in some of these classifications perform their duties

at the 36" Street Yard. The functions of those classifications,

as established in the record, are as follows:

1. Vehicle and Equipment Receiving Clerks: Six vehicle

and equipment receiving clerks (also referred to as checkers),

hereinafter called V/E clerks, are separately supervised by

stipulated supervisor Carol Ehrlich. V/E clerks physically

work in the car lot located directly across the street from the

entrance of the terminal. Customers deliver their vehicles to

a “vehicle lane” in the car lot for export by the Employer.

In the “vehicle lane” V/E clerks prepare a “dock receipt;”

inspect the vehicle to insure it is running and that the brakes

work; note any damage, defects or missing equipment;

measure the vehicle; and then enter this information into the

computer system via a computer terminal which is located

in an adjacent office. The V/E clerks then move the vehicle

to an area of the car lot designated by port of destination.

9. Vice-President of Operations Paelinck testified that a

“terminal manager” position was vacant and that Operations Manager

Tim Dzierzanowski had an office next to Paelinck’s at the terminal.

There is no evidence as to the duties of the “terminal manager”.

Paelinck only testified that the operations manager spends 70 to 80

percent of his time “managing the vessels” and that he “completes

the evaluations of the equipment operators at the terminal.”

PORT PRMEy HET AAPM TOTES Cs SEAR SINR ROTI

17a

Appendix C

V/E clerks also receipt and inspect heavy equipment.

Customers deliver heavy equipment to a side gate at the

terminal. On a rotational basis, all V/E clerks perform the

receipt and inspection of heavy equipment. When heavy

equipment is delivered, V/E clerks prepare the dock receipt,

wait while an equipmeni operator unloads the heavy

equipment onto the ground, and then inspect and measure

the equipment. Upon completion of the inspection, V/E clerks

return to the car lot and input the information into the

computer system.

2. Trailer Interchange Report Clerks: Eight trailer

interchange report clerks (also referred to as TIR checkers),

hereinafter called TIR clerks, are separately supervised by

stipulated supervisor Juan Carlos Perara. TIR clerks

physically work in and rotate between two garage-like

drive-through facilities, hereinafter called the “outbound” TIR

lanes and the “inbound” TIR lanes. Use of the “outbound”

TIR lanes is required for trucks/equipment exiting the

terminal and use of the “inbound” TIR lanes is required for

trucks/equipment entering the terminal. Immediately adjacent

to each TIR lane is a glass enclosed office where a computer

terminal is located. One TIR clerk stands in each TIR lane to

inspect trucks/equipment moving through and one TIR clerk

inputs inspection data into the computer terminal located

inside the office. Truckers, when exiting the terminal with

empty equipment requested by an exporter customer’s

“pick-up” booking or with loaded equipment destined for

delivery to an import customer, must drive through the

“outbound” TIR lane. The trucker hands the TIR clerk a

Trailer Interchange Report, hereinafter called a TIR, which

the trucker has obtained from a dispatcher. The TIR clerk

takes information off the equipment and notes it on the TIR

18a

Appendix C _

and verifies the accuracy of equipment type. To determine

whether the truck/equipment is “roadworthy”, the TIR clerk

performs a visual inspection of the truck and equipment for

obvious mechanical and structural deficiencies or damage

such as broken tail or indicator lights, the condition of the

tires and mud flaps, the validity of license plates, the currency

of the required annual highway inspection, and any obvious

tears or rips in the container. The TIR clerk records his

_ observations onto the pre-printed TIR form. While

performing this inspection, a tireman is inflating the truck/

equipment’s tires to the required level. The record establishes

that TIR clerks may perform minor repairs such as replace

broken tail lights, replace crank handles for landing gear,

affix tape over small tears, install necessary placards and

remove or spray paint over unnecessary placards, and replace

expired license plates. Supplies needed to perform the

aforementioned repairs are maintained in a cabinet within

the glass-enclosed office adjacent to the TIR lane. Repairs

which exceed the skill level associated with the

aforementioned tasks are performed by either a reefer

mechanic, trailer mechanic, or power mechanic. TIR clerks

note needed repairs onto the TIR and then use a two-way

- radio to request that a mechanic respond to perform the

needed repairs. Depending upon the type of repair needed, a

reefer mechanic, trailer mechanic, or power mechanic will

respond to the “outbound” TIR lanes. It appears from the

record that if the repair can be made quickly, the mechanic

completes the repair in the TIR lane; however, if the repair

will impede the flow of advancing trucks/equipment, the

mechanic will perform the repair outside of the TIR lanes.

A similar inspection, this time for “seaworthiness” is performed

by the TIR clerk in the “inbound” TIR lanes for truck/

equipment entering the terminal.

19a

Appendix C

3. Equipment Control Clerks: Five equipment control

clerks (also referred to as ship checkers) are separately super-

vised by stipulated supervisor Valentina Marrero. The equipment

control clerks work out of an equipment control trailer and

maintain the inventory of equipment owned or leased by the

Employer through its computer system. Three of the

equipment control clerks spend approximately 80 percent of

their time physically standing on the “string piece”'® next to

a vessel and recording the identification numbers of cargo

and equipment being loaded or unloaded onto or from the

vessel, either through use of a hand-held computer and/or a

clipboard with the stow plan or manifest, for inventory

tracking purposes. The remainder of the three equipment

control clerks’ time is spent in the equipment control trailer

performing related equipment inventory tasks and reconciling

discrepancies in equipment location. Conversely, the

remaining two equipment control clerks occasionally perform

the above-described ship-side function and spend the

remainder of their time in the equipment control trailer

performing related equipment inventory tasks and reconciling

discrepancies in equipment location. The two equipment

control clerks working in the trailer assist the equipment

control clerks performing the ship-side function by inputting

their data when back-to-back vessels are being loaded and

unloaded and they have insufficient time to complete their

data entry into the computer system.

4. Vehicle Shuttlers: Six vehicle shuttlers are separately

supervised by stipulated supervisor Thomas Hernandez.

10. The “string piece” is an approximately 150 foot strip of

land adjacent to the waters edge where cargo is “staged” prior to

being loaded onto the awaiting vessel.

20a

Appendix C

When a ship arrives, vehicle shuttlers drive the vehicles from

the car lot across the street to the terminal to the “string piece”

for loading. Vehicle shuttlers may “stuff” the vehicle into a

container and secure it with binders as directed by their

supervisor; a “stuffing report” is completed by the supervisor.

Vehicle shuttlers may assist equipment operators “in a

learning process” on weekends and during peak need.

5. Dispatch employees (Dispatchers, Clock Drivers,

and Compliance Clerk): Five dispatchers, five clock drivers,

and one compliance clerk are supervised by stipulated super-

visors Armando Rodriquez and Ciro Cordero. The dispatchers

receive computer-generated dispatch instructions from the

main office, print a TIR, and give the TIR to an available

independent truck driver'' who is in the area looking for work.

The dispatcher may give the TIR to a “clock driver”, an hourly

paid employee of the Employer, when the booking is for a

customer requiring multiple location loadings or when the

booking involves special “bonding” requirements. Clock drivers

pick up the requested equipment from the designated area of

the terminal or 36" Street Yard, proceed to the “outbound”

TIR lanes for inspection, drive to the customer’s location,

await the filling of the load, generate a TIR for the next load,

and when completed, return the loaded equipment back

to the terminal for inspection in the “inbound” TIR lanes.

Upon completion of the inspection, clock drivers drive the

cargo to the designated location at the terminal where an

equipment operator off-loads the cargo. The compliance clerk

11. The Employer contracts with approximately 80 truck drivers

who are independent contractors and thus not employees of the

Employer. Neither party is seeking to include the independent truck

drivers in any unit found appropriate.

2la

Appendix C

works in the dispatch office and is responsible for insuring

that all drivers are in compliance with highway regulations.

6. Boarding Agents: Four boarding agents are separately

supervised by stipulated supervisor Susan Aronov. Boarding

agents coordinate a ship’s arrival with the U.S. Customs, the

U. S. Coast Guard, the pilot station, and the Port Authority.

Boarding agents are the first employees of the Employer to

board an incoming vessel. Boarding agents perform

unspecified clerical aspects of preparing for the ship’s arrival.

7. Inbound Coordinators: Fourteen inbound coordinators

are separately supervised by stipulated supervisors Soli Chiu,

Teodoro Bruns, Marta Donnelly, and Ana Chao. Inbound

coordinators obtain an incoming ship’s manifest (a detailed

list of the cargo and containers onboard the ship) prior to the

ship’s arrival and enter the data from the manifest into the

Employer’s computer system. Simultaneously, the inbound

clerks notify customers of the expected arrival time of their

cargo. Inbound clerks coordinate with the U. S. Department

of Agriculture (USDA) for its inspection of all incoming

reefers. When fumigation of the reefer is required by USDA,

inbound clerks contact a dispatcher who will arrange for a

clock driver to move the reefer to the fumigation company

operating within the terminal. When other incoming

containers are selected by U.S. Customs for inspection, the

inbound clerks coordinate by radio with the dispatchers to

have the container moved by clock drivers to Custom’s

facility for inspection.

8. Claims Clerks: Three claims clerks are separately

supervised by stipulated supervisor Ingrid Cotes. The claims

clerks are located in an office next to the inbound coordinators

22a

Appendix C

and process all claims of damaged cargo. Claims clerks

contact an equipment operator by radio to coordinate the

placement of damaged cargo for inspection. A claims clerk

is present when a surveyor and the customer inspect the

damaged cargo. The claims clerk photographs the damaged

cargo and initiates a damage report. The claims clerk obtains

backup paperwork relevant to the cargo, i.e. TIR reports, dock

receipt, reefer report to evaluate the liability for the claims.

Claims clerks maintain files on all drivers, ensure that each

driver is properly insured to haul cargo, and ensure that master

TIR agreements are on file for each driver.

9. Parts and Purchasing Clerks: Six parts and

purchasing clerks are separately supervised by stipulated

supervisors Carlos Rodriguez and Rudolfo Reyes. They

physically work in an area adjacent to dispatch. Parts and

purchasing clerks order, receive, check and inventory parts

and materials for all terminal operations, including seals for

containers. They are responsible for keeping an up-to-date

inventory of all parts and materials needed for terminal

operations. Parts and purchasing clerks disburse parts and

materials to all departments on an as needed basis.

10. Stevedore Coordinators: Four stevedore coordi-

nators are separately supervised by stipulated supervisor

Fernando Delgato. Stevedore coordinators are located in a

trailer in the terminal. Based upon computer-stored

“booking” data, stevedore coordinators develop a “stow plan”

depicting where cargo scheduled for an outbound vessel will

be placed aboard the vessel. Stevedore coordinators work

closely with the equipment operators as they move the

containers, trailers, reefers, and chassis to the string piece

alongside the vessel. When problems arise with locating

23a

Appendix C

scheduled cargo or with placement of scheduled cargo safely

on the vessel, the stevedore coordinators may contact

mechanics, TIR clerks, or equipment operators for relevant

information. Stevedore coordinators assist equipment control

clerks in resolving discrepancies between the stow plan and

cargo actually loaded onto the vessel.

11. Equipment operators: Thirty-seven equipment

operators are separately supervised by stipulated supervisors

Joseph Cruz, Gerardo Palomo, Albert Smalls, Jr., Manuel

Florian and Richard Deroxtro. Four teams of six equipment

operators, one of whom on the team is designated as the

“header” of the team, move equipment within the terminal.

The teams are assigned to staggered shifts and are responsible

for moving (“staging”) scheduled cargo from its designated

location in the terminal to the string piece beside their

assigned outgoing vessel. “Headers” obtain a copy of the stow

plan for their teams’ assigned vessel from the stevedore

coordinator and distribute assignments to the equipment

operators so that cargo will be staged in the proper sequence.

Equipment operators will also unload heavy equipment

delivered by customers to the terminal side gate. Equipment

operators use forklifts, top-loaders or cranes to remove a

container from the chassis or use a “mule” to position trailers,

chassis or reefers within the terminal.

12. Tiremen: Three tiremen are separately supervised

by stipulated supervisor Manuel Alvarez. One of the tiremen

works within the “outbound” TIR lane inserting equalized

pressure into truck and trailer tires prior to the rig traveling

on public roads. The remaining two tiremen perform tire

repair within the tire repair building adjacent to the “inbound”

TIR lane.

“

24a

Appendix C

13. Power mechanics (including welders): Thirteen

power mechanics are separately supervised by stipulated

supervisors Raoul Arcia and Castor Garcia. Power mechanics

perform maintenance on the Employer’s equipment used to

move cargo, (i.e. “mules”, forklifts, and toploaders) and on

some cargo such as used busses/trucks being shipped overseas

to make them self-propelled. Unlike reefer and trailer

mechanics, power mechanics are not provided the use of step

vans out of which to work. The record does not disclose the

principal location within the terminal where power mechanics

perform their work.

14. Reefer mechanics: Twenty-three reefer mechanics

are separately supervised by stipulated supervisors Clyde

Wingate, Steven Tzoumas, and Juan Urbina. Reefer mechanics

inspect and maintain refrigerated trailers and containers.

Reefer mechanics drive step vans which contain needed tools

and equipment to perform their repairs throughout the

terminal. Reefer mechanics monitor refrigerated cargo

awaiting shipment every six hours to insure that the required

refrigeration level is maintained so as to avoid spoilage.

15. Trailer mechanics: Fifteen trailer mechanics are

separately supervised by stipulated supervisor Juan

Rodriguez. Trailer mechanics inspect and repair containers,

reefers, chassis or trailers for general structural or mechanical

problems. Trailer mechanics work throughout the terminal

out of step vans which contain needed tools and equipment

to perform necessary repairs.

25a

Appendix C

The 36" Street Yard

At its 36" Street Yard, the Employer employs only 7 of the

aforementioned 15 classifications for a total of 38 employees.

The seven classifications assigned to the 36" Street Yard are:

trailer mechanics, power mechanics (including a welder),

reefer mechanics, equipment operators, a clock driver, a TIR

clerk, and two dispatchers. The primary function of the 36"

Street Yard is to store most empty trailers, store overflow

empty containers which are in excess of the immediate need

at the terminal, and to perform necessary repairs to empty

trailers and containers. No inbound or outbound cargo enters

the 36" Street Yard. The record reflects that the duties of

each classification assigned to the 36" Street Yard are similar

to the duties for that classification at the terminal except for

those of the TIR clerk. Thus, at the 36" Street Yard, the TIR

clerk completes only the top portion of the TIR and does not

perform a visual inspection or record data regarding the

mechanical or structural condition of the equipment.

Vice-President of Operations Paelinck testified that the TIR

clerk at the 36" Street Yard is temporarily assigned to work

as a TIR clerk at the terminal to cover for absences

approximately once a month.

Uniform Working Conditions/Policies/Practices/Wage

Scale/Benefits

The Employer’s personnel policies and practices for

employee complaints, absenteeism, leave of absence,

tardiness, sick leave, code of conduct, dress codes, drug and

alcohol use, discipline, evaluations, wage increases, and

benefits are uniformly applied to all employees. Labor

26a

Appendix C

relations is centralized in a Human Resources Department

located at the main office. Work and safety rules are

applicable to all employees. All employees at the terminal

punch one of two timeclocks. All employees, except for

vehicle shuttlers and employees working during their initial

90-day probation, are paid biweekly by the Employer through

direct deposit.'? Beginning wage rates for all classifications

range from $8.00 to $10.00 per hour, wage caps for all

classifications range from $13.00 to $16.00 per hour. The

Employer provides uniforms to employees who work outside

of the trailer offices. Blue shirts (pullover or button down)

with blue pants are provided employees; supervisors and

foremen wear white shirts with blue pants. Employer

sponsored activities are open to all employees and one

employee newsletter is distributed to all employees.

Permanent Transfers and Temporary Interchange

Human Resource Director Dumkley testified that

91 employees have permanently transferred between

classifications. Documentation received in evidence to support

her testimony establishes that since 1983 approximately

91 employees transferred between classifications. Of these

91 employees who transferred, only 15 involved petitioned-for

classifications. Of those 15, ten (10) took place prior to 1993.

Of the remaining five of those transfers, all transfers were

between the petitioned-for positions. TIR clerk supervisor

Perara testified that TIR clerks had only cross-trained with

V/E receiving clerks and that the skills of TIR clerks and

V/E receiving clerks were the same. Vice-President of

12. Vehicle shuttlers and employees serving their initial 90 day

probationary period are each paid by a temporary agency.

27a

Appendix C

Operations Paelinck testified that equipment control clerks

working in the equipment control office provide backup

services for the “checkers by the ship” and similar backup

services for the TIR clerks.

ANALYSIS AND CONCLUSION

Section 9(b) of the Act states that “the Board shall decide

in each case whether, to assure to employees the fullest

freedom in exercising the rights guaranteed by this Act, the

unit appropriate for the purpose of collective bargaining shall

be the employer unit, craft unit, or subdivision thereof.”

The statute does not require that a unit for bargaining be

the only appropriate unit, or the ultimate unit, or the most

appropriate unit. Rather, the Act requires only that the unit

be “appropriate,” that is, appropriate to insure to employees

in each case “the fullest freedom in exercising the rights

guaranteed by this Act.” Morand Bros. Beverage Co.,

91 NLRB 409 (1950), enfd. 190 F.2d 576 (7" Cir. 1951); and

Dezcon. Inc., 295 NLRB 109 (1989). A union 1s, therefore,

not required to seek representation in the most comprehensive

grouping of employees unless “an appropriate unit compatible

with that requested does not exist.” P. Ballantine & Sons,

141 NLRB 1103 (1963); Bamberger '’s Paramus, 151 NLRB

748, 751 (1965); and Purity Food Stores, 160 NLRB 651

(1966). Moreover, it is well established that there is more

than one way in which employees of a given employer may

appropriately be grouped for purposes of collective

bargaining. General Instrument Corp. v. NLRB, 319 F.2d 420,

422-423 (4 Cir. 1963), cert. denied 375 U.S. 956 (1964);

and Mountain Telephone Co. v. NLRB, 310 F.2d 478, 480

28a

Appendix C

(10 Cir. 1962). In making unit determinations, the Board is

required to strike a balance between the competing interests

of the union, employer, employees and the public. The

Petitioner’s desire as to the unit is a relevant consideration,

although not dispositive. See The Lundy Packing Company,

Inc., 314 NLRB 1042 (1994); Airco, Inc., 273 NLRB 348

(1984). While the Act does not lay down any specific

standards for making unit determinations, the Board has

developed a number of criteria to be applied in such cases.

Foremost is the principle that mutuality of interest in wages,

hours, and working conditions is the prime determinant of

whether a given group of employees constitutes an

appropriate unit. Continental Baking Co., 92 NLRB 777, 782

(1952). The key question is whether the employees have a

sufficient community of interest to constitute an appropriate

unit. Tidewater Oil Co. v. NLRB, 358 F.2d 363, 366 (2d Cir.

1964), cert. denied 380 U.S. 910 (1965). As stated by the

Board in Continental Baking:

In deciding whether the requisite mutuality exists,

the Board looks to such factors as the duties, skills,

and working conditions of the employees involved,

and especially to any existing bargaining history.

[Continental Baking Co., supra at 782-783.]

The community-of-interest test also considers factors

such as the degree of functional integration, Atlanta Hilton

& Towers, 273 NLRB 87 (1984); common supervision,

Associated Milk Producers, 250 NLRB 1407 (1970);

employee skills and functions, Phoenician, 308 NLRB 826

(1992); interchangeability and contact among employees,

Associated Milk Producers, supra; and general working

29a

Appendix C

conditions and fringe benefits, Allied Gear & Machine Co.,

250 NLRB 679 (1950).!°

Applying these principles to the instant case, I find that

a unit of trailer interchange report clerks, vehicle and

equipment receiving clerks, and equipment control clerks

working at the Port of Miami terminal only is an appropriate

- unit for purposes of collective bargaining. As detailed above,

the petitioned-for classifications at the terminal have similar

duties to receipt, inspect, and record the condition and location

of the Employer’s equipment and customer cargo as it enters

and exits the terminal location. There is no overlap of immediate

supervision between the petitioned-for employees and other

employees at the terminal. The vice president of operations

makes certain final decisions on important personnel matters,

such as hiring and discipline. However, there is no record

evidence that he provides significant day-to-day direction and

supervision to the petitioned-for employees. Further, the only

specific evidence in the record of cross training reflects cross

training only between the trailer interchange clerks and the

- vehicle and equipment receiving clerks, not between the

requested classifications and any of the other employees.

Although the record reflects some employee transfers between

non-petitioned-for classifications, no employees in non-

13. At hearing, administrative notice was taken ofa July 1, 1988

Decision and Direction of Election in Seaboard Marine, LTD, Case

12-RC-6969, involving the same Employer and Petitioner, wherein

the Regional Director directed an election in a unit limited to

mechanics and mechanics helpers including mechanics’ foremen,

reefer mechanics, dry trailer mechanics, power mechanics, and body

mechanics, welders, tiremen and partsmen. The Employer’s Request

for Review was withdrawn prior to ruling by the Board. A Certificate

of Results issued on August 11, 1988.

30a

Appendix C

petitioned-for classifications transferred into petitioned-for

positions during the past four years.

As for the trailer interchange report clerk assigned to

the 36" Street Yard, he does not perform the inspection

function on the equipment; there is overlap in his immediate

supervision with other classifications at the 36" Street Yard

and not with those at the terminal; and he is geographically

separated from the terminal. The fact that he is temporarily

assigned as trailer interchange clerk at the terminal

approximately one time per month does not mandate that he

be included in the petitioned-for unit.

In view of the above, and noting in particular that no

other labor organization seeks to represent the petitioned-for

employees in a more comprehensive unit, I find that the

Employer’s trailer interchange report clerks, vehicle and

equipment receiving clerks, and equipment control clerks

share a community of interest and that the petitioned-for unit

is an appropriate unit for collective bargaining. There is no

basis in the record to exclude the equipment control clerks

who work primarily in the equipment control trailer from

the unit found appropriate herein."

14. It appears from the record that trailer interchange report

clerks, vehicle and equipment receiving clerks, equipment control

clerks, as well as all other classifications, while serving their initial

90-day probationary period are paid by a temporary agency and “do -

not become Seaboard employees” until satisfactory completion of

their probation. The unidentified temporary agency was not a party

to this representation proceeding. While 90-day probationary

employees may be solely employed by the Employer, I cannot

determine, based upon the record before me, whether that is the case

(Cont'd)

3la

Appendix C

Birdsall, Inc., 268 NLRB 186 (1983), principally relied

upon by the Employer to support its contention that the

petitioned-for classifications constitute a fragmented group,

rather than an appropriate unit, is distinguishable. In Birdsall,

where the Board found a unit limited to employees in the

employer’s warehouse operation inappropriate, the Board relied

in large part on the employer’s requirement that employees be

frequently shifted from one area to another on an ad hoc basis,

its temporary inter-area 1- to 3-week transfers as well as

“as needed” flexibility, and the employer’s extensive orientation

procedure where new employees worked in various classifications

for a period of time to obtain an overview of the employer’s

operations. These factors are not present herein. There is no

evidence that the Employer herein regularly shifts employees

from one work area to another as did the Employer in Birdsall.

Also, there is no evidence of temporary transfers among the

classifications the Employer contends should be included in the

unit except those involving petitioned-for employees and the trailer

interchange report clerk at the 36* Street Yard discussed above."

(Cont’G)

or whether there is a joint employer relationship, and I shall therefore

allow the employees in the unit found appropriate who are serving

their initial 90-day probationary period to vote subject to challenge.

See Hexacomb Corp. 313 NLRB 983 (1994); and Hughes Aircraft

Co., 308 NLRB 82 (1992).

15. The record is unclear whether overtime work performed by

vehicle and equipment receiving clerks as vehicle shuttlers or the

overtime work performed by vehicle shuttlers as equipment operators

was voluntary or whether they were paid for the overtime work by

the temporary agency or the Employer. Even assuming a wall-to-wall

unit was found appropriate, vehicle shuttlers may not be included

due to the temporary nature of their work.

32a

Appendix C

Finally, there is no evidence of any orientation procedure

offered by the Employer except for on-the-job training within

the classification into which the employee was hired.

In view of the foregoing and the record as a whole, I find

the following employees of the Employer constitute a unit

appropriate for the purpose of collective bargaining within

the meaning of Section 9(b) of the Act:

All transportation interchange report clerks,

vehicle and equipment receiving clerks, and

equipment control clerks employed by the

Employer at 1306 Port Boulevard, Miami, Florida,

but excluding all other employees, guards and

supervisors'* as defined in the Act.

16. The parties stipulated, and I find, that the following assistant

foremen, foremen, and supervisors responsibly direct employees in

a manner which is not of a merely routine or clerical nature but which

requires the use of independent judgment and are thus excluded from

the unit as supervisors within the meaning of Section 2(11) of the

Act: Supervisor of trailer interchange clerks — Juan Carlos Perara;

Supervisor of vehicle and equipment receiving clerks — Carol

Ehrlich; Supervisor of equipment control clerks — Valentina Marrero;

Supervisors of power mechanics — Raoul Arcia and Castor Garcia;

Supervisors of reefer mechanics — Clyde Wingate, Steven Tzoumas,

and Juan Urbina; Supervisor of trailer mechanics — Juan Rodriguez;

Supervisor of tiremen — Manuel A.varez, Supervisors of parts and

purchasing clerks — Carlos Rodriguez and Rudolfo Reyes;

Supervisor of boarding agents — Susan Aronov; Supervisors of

equipment operators — Joseph Cruz, Gerardo Palomo, Albert Smalls,

Jr., Manuel Florian, and Richard Deroxtro; Supervisor of stevedore

coordinators — Fernando Delgato; Supervisors of inbound

coordinators — Soli Chiu, Teodoro Bruns, Marta Donnelly, and Ana

(Cont'd)

33a

Appendix C

DIRECTION OF ELECTION

An election by secret ballot shall be conducted by the

undersigned among the employees in the unit found appropriate

at the time and place set forth in the notice of election to be

issued subsequently, subject to the Board’s Rules and

Regulations. Eligible to vote are those in the unit who were

employed during the payroll period ending immediately before

the date of this Decision, including employees who did not work

during that period because they were ill, on vacation or

temporarily laid off. Also eligible are employees engaged in an

economic strike which commenced less than 12 months before

the election date and who retained their status as such during

the eligibility period and their replacements. Those in the military

services of the United States may vote if they appear in person

at the polls. Ineligible to vote are employees who have quit or

been discharged for cause since the designated payroll period,

employees engaged in a strike who have been discharged for

cause since the commencement thereof and who have not been

rehired or reinstated before the election date and employees

engaged in an economic strike which commenced more than

12 months before the election date and who have been

permanently replaced.'’ Those eligible shall vote whether or

(Cont’d)

Chao; Supervisor of claims clerks — Ingrid Cate; Supervisors of

dispatch employees — Armando Rodriguez and Ciro Cordero;

Supervisor of vehicle shuttlers — Tomas Hernandez: and Supervisors

of employees assigned to the 36" Yard — Juan “Pepe” Gonzales,

Miguel Hiedra, and Alexis Jimenez.

17. In order to assure that all eligible voters may have the

opportunity to be informed of the issues in the exercise of their

(Cont’d)

34a

Appendix C

not they desire to be represented for collective bargaining

purposes by International Longshoremen’s Association, Local

1922, affiliated with International Longshoremen’s

Association, AFL-CIO."

DATED at Tampa, Florida, this 9th day of January, 1998.

Margaret J. Diaz, Acting Regional Director

National Labor Relations Board, Region 12

201 E. Kennedy Bivd., Suite 530

Tampa, FL 33602-5824

(Cont’d)

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

(1966); N.L.R.B. v. Wyman-Gordon Company, 394 U.S. 759 (1969).

Accordingly, it is hereby directed that within seven (7) days of the

date of this Decision and Direction of Election, two (2) copies of an

alphabetized election eligibility list, containing the full names and

addresses of all eligible voters in the unit found appropriate, shall be

filed by the Employer with the Regional Directo: for Region 12. North

Macon Health Care Facility, 315 NLRB 359 (1994). The Regional

Director shall make the list available to all parties to the election.

In order to be timely filed, such list must be received in the Regional

Office on or before January 16, 1998. No extension of *ime to file this

list may be granted except in extraordinary circumstances, nor shall the

filing of a request for review operate to stay the filing of such list.

18. Under the provisions of Section 102.67 of the Board’s Rules

and Regulations, Series 8, as amended, a request for review of this

Decision may be filed with the National Labor Relations Board,

addressed to the Executive Secretary, 1099 14" Street NW,

Washington, DC 20570-0001. This request must be received by the

Board in Washington by January 23, 1998.

35a

APPENDIX D — ORDER OF THE UNITED STATES

OF AMERICA BEFORE THE NATIONAL LABOR

RELATIONS BOARD DATED FEBRUARY 4, 1998

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

Case 12-RC-8176

SEABOARD MARINE, LTD.

Employer

and

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

LOCAL 1922, affiliated with INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION, AFL-CIO

Petitioner

ORDER

Employer’s Request for Review of the Acting Regional

Director’s Decision and Direction of Election is granted as

it raises substantial issues warranting review.

WILMA B. LIEBMAN, MEMBER

PETER J. HURTGEN, MEMBER

J. ROBERT BRAME III], MEMBER

Dated, Washington, D.C., February 4, 1998.

36a

APPENDIX E — DECISION ON REVIEW AND ORDER

REMANDING OF THE REGIONAL DIRECTOR OF

THE NATIONAL LABOR RELATIONS BOARD

DATED FEBRUARY 5, 1999

Case 12—RC-8176

SEABOARD MARINE, LTD.

and

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

LOCAL 1922, affiliated with INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION, AF L-CIO

Petitioner

February 5, 1999

BY MEMBERS LIEBMAN, HURTGEN, AND BRAME

On January 9, 1998, the Acting Regional Director for

Region 12 issued a Decision and Direction of Election in the

above-entitled proceeding, in which the Petitioner seeks to

represent a unit limited to approximately 17 employees in

three classifications — trailer interchange clerks, vehicle and

equipment receiving clerks, and equipment control clerks —

employed by the Employer at its Port of Miami terminal

facility. The Acting Regional Director found that the

petitioned-for unit constitutes a unit appropriate for the

purpose of collective bargaining, and ordered an election.

37a

Appendix E

Thereafter, in accord with Section 102.67 of the Board’s

Rules and Regulations, the Employer filed a timely request

for review of the Acting Regional Director’s Decision,

maintaining that the only appropriate unit is an employerwide

or overall unit which would include all of the Employer’s

approximately 181 employees in an additional 12

classifications who are employed at the Port of Miami

terminal or at the Employer’s 36th Street location (the Yard).

The Petitioner filed a request for review. The election was

held on February 5, 1998, and the ballots impounded.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

Having carefully considered the entire record, including

the Petitioner’s Brief on Review, we agree with the Employer

that the unit in which the Acting Regional Director has

directed an election is not appropriate. It is well established

that the Board does not approve fractured units, /.e.,

combinations of employees that are too narrow in scope or

that have no rational basis. Colorado National Bank of

Denver, 204 NLRB 243 (1973). In the instant case, we find,

contrary to the Acting Regional Director, that the petitioned-

for employees do not share a sufficiently distinct community

of interest from other employees to warrant a separate unit

and, therefore, that the unit grouping sought by the Petitioner

is an arbitrary one. See, e.g., Brand Precision Services, 313

NLRB 657 (1994); Transerv Systems, 311 NLRB 766 (1993).

The employees in the three classifications the Petitioner

seeks to represent perform similar unskilled cler:cal and/or

visual inspection tasks as do the employees in a number of

38a

Appendix E

excluded classifications. It is clear from the record that, as

the Employer contends, there is a high degree of functional

integration in its operations and that the work performed by

these employees is directly related to and integrated with the

work of the majority, if not all, of the Employer’s remaining

employees.

The clerk-type and inspection duties of the petitioned-for

vehicle and equipment clerks (who prepare “dock receipts”

in acceptance of vehicles to be transported, and who visually

inspect, and enter data on, these vehicles), trailer exchange

clerks (who visually inspect, and enter data on, all trucks

and equipment entering or exiting the terminal), and equipment

control clerks or “ship checkers” (who inventory equipment and

enter identification numbers on all equipment and cargo being

loaded or unloaded shipside) are not so dissimilar from the duties

of many other classifications to warrant separate representation.

In addition, while the various classifications have separate

immediate supervision, the Employer maintains a system of

wage levels that are applied companywide, as well as fringe

benefits, work and safety rules, and personnel policies and

practices that are applied uniformly.

Based on the above, we find that, at a minimum, the

appropriate unit must also include the following employees

who perform similar clerical and inspection tasks: dispatch

employees (traffic clerks, dispatchers and driver compliance

employees who process booking and equipment information

and coordinate customer orders and pickups), boarding agents

(who perform various clerical tasks in preparing for ship arrival

including the coordination of arrivals with various regulatory

agencies), inbound coordinators (who enter data from ship

39a

Appendix E

manifests and notify customers of arrival times), claims clerks

(who process all claims of damaged cargo), parts/purchasing

clerks (who order/receive/check/inventory parts and materials

for all terminal operations), and stevedore coordinators

(who develop “stow plans” for outbound vessels).

In rejecting the petitioned-for unit, although we emphasize

that the duiies and minimal skills of the petitioned-for

employees are not distinct from those of several other

classifications, we do not suggest a precise unit finding.

In particular, we note that the record before us is insufficient

to determine whether the appropriate unit also must include

the Employer’s maintenance employees including mechanics, '

equipment operators, clock drivers, and vehicle shuttlers.

Accordingly, we reverse the Acting Regional Director’s

Decision and vacate the election. Because the Petitioner has

expressed a willingness to represent employees in any unit

the Board finds appropriate, we remand this proceeding to

the Regional Director for further appropriate action, including

the determination of an appropriate unit for collective

bargaining, the adequacy of the Petitioner’s showing of

interest in such a unit, and the scheduling of a new election.

1. We note that in Case 12-RC-6969, a unit limited to the

Employer’s mechanics and mechanic helpers was found

appropriate. The Employer’s Request for Review of the Regional

Director’s determination in that case was withdrawn prior to a

ruling by the Board.

40a

Appendix E

ORDER

IT IS ORDERED that the election held on February 5,

1998, be vacated, and that the case be remanded to the

Regional Director for further appropriate action.

Dated, Washington, D.C. February 5, 1999

Wilma B. Liebman, Member

Peter J. Hurtgen, Member

J. Robert Brame III, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

4la

APPENDIX F — DECISIONS OF THE UNITED

STATES OF AMERICA BEFORE THE NATIONAL

LABOR RELATIONS BOARD, REGION 12

DATED MARCH 26, 1999

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 12

Case 12-RC-8176

SEABOARD MARINE, LTD.

Employer

and

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

LOCAL 1922, affiliated with INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION, AFL-CIO

Petitioner

and

Case 12-RC-8325

SEABOARD MARINE, LTD.

Employer

and

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,

LOCAL 1416, affiliated with INTERNATIONAL

LONGSHOREMEN’S ASSOCIATION, AFL-CIO

Petitioner

42a

Appendix F

SUPPLEMENTAL DECISION AND DIRECTION

OF ELECTION IN CASE 12-RC-8176

AND

DECISION AND DIRECTION OF ELECTION

IN CASE 12-RC-8325

On January 9, 1998, the Acting Regional Director for

Region 12 issued a Decision and Direction of Election in

Case 12-RC-8176 finding the petitioned-for unit limited to

approximately 17 employees in three classifications — trailer

interchange clerks, vehicle and equipment receiving clerks,

and equipment control clerks — employed by the Employer

at its Port of Miami terminal facility appropriate for collective

bargaining purposes and directing an election. Thereafter,

the Employer filed a timely request for review of the Acting

Regional Director’s Decision, maintaining that the only

appropriate unit is an employerwide or overall unit which

would include all of the Employer’s approximately

181 employees in an additional 12 classifications who are

employed at the Port of Miami terminal or at the Employer’s

36" Street location. The Petitioner, International

Longshoremen’s Association, Local 1922, affiliated with

International Longshoremen’s Association, AFL-CIO,

hereinafter called Local 1922, also filed a request for review.

The election was held on February 5, 1998, and the ballots

impounded.

On February 5, 1999, the Board issued a Decision on

Review and Order Remanding in Case 12-RC-8176',

reversing the Acting Regional Director’s decision and

vacating the election. The Board, finding there is a high

1. Seaboard Marine, Ltd., 327 NLRB No. 108.

43a

Appendix F

degree of functional integration in the Employer’s operations

and that the work performed by petitioned-for classifications

is directly related to and integrated with the work of the

majority, if not all of the Employer’s remaining employees,

held that, at a minimum, the appropriate unit must also

include the following employees who perform similar clerical

and inspections tasks: dispatch employees (traffic clerks,

dispatchers and driver compliance employees), boarding

agents, inbound coordinators, claims clerks, parts/purchasing

clerks, and stevedore coordinators, hereinafter collectively

referred to as “the smallest appropviate unit.” The Board

ordered that Case 12 RC-8176 be rer ianded to the Regional

Director for further appropriate action to determine whether

the appropriate unit must also include the Employer’s

maintenance employees including mechanics, equipment

operators, clock drivers, and vehicle shuttlers.

Thereafter, on February 11, 1999, International

Longshoremen’s Association, Local 1416, affiliated with

International Longshoremen’s Association, AF L-CIO,

hereinafter called Local 1416, filed a petition in Case

12-RC-8325 seeking to represent a unit limited to equipment

operators employed at the Employer’s Port of Miami and Port

Everglades locations. The Employer’s equipment operators

sought to be represented by local 1416 in Case 12-RC-8325

are among the employees the Employer claims to be part of the

appropriate unit in Case 12-RC-8176, filed by Local 1922, and

are among the employees that were the subject of the Board’s

remand for the purpose of determining their unit placement.

By Order dated February 18, 1999, the Regional Director

consolidated Case 12-RC-8176 and Case 12-RC-8325 and

scheduled a hearing to convene on February 25, 1999.

44a

Appendix F

In accordance with the Board’s order remanding in Case

12-RC-8176 and upon a petition in Case 12-RC-8325 duly filed

under Section 9(c) of the National Labor Relations Act, as

amended, a consolidated hearing was held before a hearing

officer of the National Labor Relations Board.

Pursuant to the provisions of Section 3(b) of the Act, the

Board has delegated its authority in this proceeding to the

undersigned.

Upon the entire record in this proceeding’, the

undersigned finds:

1. The hearing officer’s rulings made at the hearing are

free from prejudicial error and are hereby affirmed.

2. The Employer is engaged in commerce within the

meaning of the Act, and it will effectuate the purposes of the

Act to assert jurisdiction herein.’

3. Petitioners are labor organizations within the meaning

of the Act.

2. The briefs submitted by Petitioners and the Employer have

been carefully considered.

3. The Employer is a Liberian corporation licensed to do

business in the State of Florida, with an office and place of business

located at the Port of Miami, Florida, where it is engaged in the

business of transporting cargo inside and outside the State of Florida.

During the past 12 months, the Employer, in conducting its business

operations, derived gress revenues in excess of $50,000 for the

transportation of cargo from the State of Florida directly to points

outside the State of Florida.

45a

Appendix F

4. Aquestion affecting commerce exists concerning the

representation of certain employees of the Employer within

the meaning of Section 9(c)(1) and Section 2(6) and (7) of

the Act.

The parties stipulated that any appropriate unit found in

either case 12-RC-8176 or Case 12-RC-8325 should cover

the Employer’s Port of Miami, Port Everglades, and

36" Street Yard locations. The parties, however, are in

disagreement as to the composition of the unit. Petitioner

Local 1922 seeks a bargaining unit limited to the smallest

appropriate unit as determined by the Board in Seaboard

Marine, Ltd., 327 NLRB No. 108 (February 5, 1999).

Petitioner Local 1416 seeks a bargaining unit limited to

equipment operators. Contrary to the Petitioners, the

Employer contends that the only appropriate unit for

bargaining is a wall-to-wall unit which encompasses all

classifications of employees, excluding office clerical

employees, guards and supervisors as defined in the Act.‘

The Petitioners expressed a willingness to represent employees

in any unit the Board finds appropriate. The “smallest

appropriate unit” as described by the Board includes 58

employees; the petitioned-for unit of equipment operators sought

4. Specifically, the Employer contends that the only appropriate

unit must include not only the classifications found by the Board to

be the “smallest appropriate unit” — trailer interchange clerks,

vehicle and equipment receiving clerks, equipment control clerks,

dispatch employees (traffic clerks, dispatchers and driver compliance

employees), boarding agents, inbound coordinators, claims clerks,

parts/purchasing clerks, and stevedore coordinators — but also

maintenance employees, power mechanics (including weiders), reefer

mechanics, trailer mechanics, tiremen, equipment operators

(including headers), clock drivers and vehicle shuttlers.

46a

Appendix F

by Petitioner Local 1416 inc.ades about 55 employees while

the unit the Employer contends is appropriate would include

about 220 employees. There is no bargaining history among

any of the employees at issue herein.°

The Employer is engaged in the business of transporting

cargo® for importer and exporter customers between the

United States and Primarily Central America, South America

and the Caribbean. The Employer has its administrative

office’? in Medley, Florida. The Employer’s shipping

operation is conducted on approximately 50 acres at the Port

of Miami, hereinafter called the Port of Miami terminal. Since

1991, it has expanded its operation to a 25-acre piece of land,

5. The undersigned takes official notice that in 1988 in Case

12-RC-6969, a unit limited to the Employer’s mechanics and

mechanic helpers, was found appropriate by the then Regional

Director of Region 12. The Employer’s Request for Review of the

aforementioned determination in that case was withdrawn prior to a

ruling by the Board. An election was held and a Certification of

Results issued. Subsequently, in 1992 in Case 12-RC-7562, a

stipulated election agreement limited to the same unit as found

appropriate in Case 12-RC-6969 was approved. Again, an election

was held and a Certification of Results issued. Finally, in 1995 in

Case 12-RC-7817, a stipulated election agreement limited to various

equipment operator classifications was approved. An election was

held and a Certification of Results issued.

6. Cargo transported by the Employer includes dry goods,

perishables, heavy equipment and vehicles which are shipped in

refrigerated or dry containers and trailers or on flat-bed trailers, in

open containers or with no containers.

7. No party seeks to include any classification of employees

working out of the Employer's administrative office.

47a

Appendix F

hereinafter called the 36" Street Yard,* located “‘a couple of

miles” from the Port of Miami terminal, and, since October

1998, has further expanded its operations to include the Port

Everglades facility, hereinafter called Port Everglades facility,

located approximately 25 miles from the Port of Miami

terminal. The Employer owns or leases over 22,000 pieces

of equipment for its operation: equipment that holds cargo,”

equipment that moves cargo,'° and equipment necessary to

maintain the aforementioned operational equipment.

The Employer is not involved in the direct loading or unloading

of customer cargo onto or off of seagoing vessels; rather, a

separate stevedoring company is employed for this operation.

The Employer’s director of operations, Edward Gonzalez,

who has an office located in the Port of Miami terminal, has

overall responsibility for the transportation operation at the

Port of Miami terminal, the 36" Street Yard, and the Port

Everglades facility. At the terminal, approximately 11 of the 17

classifications the Employer contends should be included in a

8. The 36" Street Yard is an expansion of the Employer’s

terminal operation necessitated by the Employer’s increased workload

and lack of available space at the terminal. The 36" Street Yard is

used primarily for the storage of empty trailers and the overflow of

empty containers returned from overseas which are in excess to those

needed at the terminal. The 36" Street Yard is also utilized by the

Employer for the repair of empty containers and trailers. No imported

or exported cargo is received or housed at the 36" Street Yard.

9. Equipment that holds cargo includes containers, trailers,

reefers (refrigerated containers or trailers), chassis and flatbeds.

10. Equipment that moves cargo includes forklifts, trucks, top-

loaders or cranes and “mule” trucks (specially designed short trucks).

48a

Appendix F

wall-to-wall unit have separate supervision." At the 36" Street

Yard, one foreman supervises the mechanics and one foreman

supervises the remaining employees assigned to that location;

both foremen report to one supervisor, Juan “Pepe” Gonzalez.

The director of operations testified that the stipulated supervisors

at the Port of Miami terminal, stipulated supervisor Gonzalez

from the 36" Street Yard, and the stipulated supervisors at the

Port Everglades terminal report to him.”

There are employees in all 17 classifications the

Employer seeks to include in the unit, including the

9 classifications found by the Board to be the “smallest

appropriate unit” and the 8 other employee classifications

__ maintenance, power mechanics (including welders), reefer

mechanics, trailer mechanics, tiremen, equipment operators

(including headers), clock drivers, and vehicle shuttlers —

who perform duties at the Port of Miami terminal.

Additionally, employees in some of these classifications are

stationed at the 36" Street Yard and at the Port Everglades

facility.

11. As found infra, stipulated supervisor Juan Carlos Perara

supervises both vehicle and equipment receiving clerks and trailer

interchange clerks; stipulated supervisors Armando Rodriguez and

Ciro Cordero both supervise dispatch employees and clock drivers;

and stipulated supervisor operations manager Maurice Policarpia

supervises both boarding agents and equipment operators. However,

there is a dispute between the parties as to whether or not “headers”

are immediate supervisors of equipment operators.

12. It appears from the record that in July 1998 director of

operations Gonzalez replaced vice-president of operations Paelinck,

who had testified at the initial hearing in Case 12-RC-8176, and that

Maurice Policarpia replaced Tim Dzierzanowski as the operations

manager.

49a

Appendix F

“SMALLEST APPROPRIATE UNIT”

CLASSIFICATIONS

The functions of those classifications found by the Board

in Seaboard Marine, Ltd., 327 NLRB No. 108, to be the

“smallest appropriate unit,” as established in the record on

remand, are as follows:

1. Vehicle and Equipment Receiving Clerks: Six vehicle

and equipment receiving clerks (also referred to as checkers),

hereinafter called V/E clerks, are supervised by stipulated

supervisor Juan Carlos Perara. V/E clerks physically work in

the car lot located directly across the street from the entrance of

the Port of Miami terminal. Customers deliver their vehicles to

a “vehicle lane” in the car lot for export by the Employer. In the

“vehicle lane” V/E clerks prepare a “dock receipt”; inspect the

vehicle to insure it is running and that the brakes work; note

any damage, defects or missing equipment; measure the vehicle;

and then enter this information into the computer system via a

computer terminal which is located in an adjacent office. The

V/E clerks then move the vehicle to an area of the car lot

designated by port of destination.

V/E clerks inspect and prepare receipts for heavy

equipment. Customers deliver heavy equipment to a side gate

at the Port of Miami terminal. On a rotational basis, all V/E

clerks perform this work involving the heavy equipment. When

heavy equipment is delivered, V/E clerks prepare the dock

receipt, wait while an equipment operator unloads the heavy

equipment onto the ground, and then inspect and measure the

equipment. Upon completion of the inspection, V/E clerks return

to the car lot and input the information into the computer system.

50a

Appendix F

2. Trailer Interchange Report Clerks: Eight trailer

interchange report clerks (also referred to as TIR checkers),

hereinafter called TIR clerks, are also supervised by stipulated

supervisor Juan Carlos Perara. TIR clerks physically work

in and rotate between two garage-like drive-through facilities,

hereinafter called the “outbound” TIR lanes and the

“inbound” TIR lanes at the Port of Miami terminal. Use of

the “outbound” TIR lanes is required for trucks/equipment

exiting the terminal and use of the “inbound” TIR lanes is

required for trucks/equipment entering the terminal.

Immediately adjacent to each TIR lane is a glass enclosed

office where a computer terminal is located. One TIR clerk

stands in each TIR lane to inspect trucks/equipment moving

through and one TIR clerk inputs inspection data into the

computer terminal located inside the office. Truckers, when

exiting the terminal with empty equipment requested by an

exporter customer’s “pick-up” booking or with loaded

equipment destined for delivery to an import customer, must

drive through the “outbound” TIR lane. The trucker hands

the TIR clerk a Trailer Interchange Report, hereinafter called

a TIR, which the trucker has obtained from a dispatcher.

The TIR clerk takes information off the equipment and

notes it on the TIR and verifies the accuracy of equipment

type. To determine whether the truck/equipment is

“roadworthy”, the TIR clerk in the “outbound” TIR lane

performs a visual inspection of the truck and equipment for

obvious mechanical and structural deficiencies or damage

such as broken tail or indicator lights, the condition of the

tires and mud flaps, the validity of license plates, the currericy

of the required annual highway inspection, and any obvious

tears or rips in the container. The TIR clerk records his

S5la

Appendix F

observations onto the pre-printed TIR form. While the TIR

clerk is performing this inspection, a tireman is inflating the

truck/equipment’s tires to the required level. In the absence

of a tireman, the TIR clerk will perform the tireman’s

function.

The record establishes that TIR clerks also perform minor

mechanical repairs such as replace broken tail lights, replace

crank handles for landing gear, affix tape over small tears,

install necessary placards and remove or spray paint over

unnecessary placards, and replace expired license plates.

Supplies needed to perform the aforementioned repairs are

maintained in a cabinet within the glass-enclosed office

adjacent to the TIR lane. Repairs which exceed the skill level

associated with the aforementioned tasks are performed

by either a reefer mechanic, trailer mechanic, or power

mechanic. TIR clerks note needed repairs onto the TIR and

then use a two-way radio to request that a mechanic’ respond

to perform the needed repairs. Depending upon the type of

repair needed, a reefer mechanic, trailer mechanic, or power

mechanic will respond to the “outbound” TIR lanes.

It appears from the record that if the repair can be made

quickly, the mechanic completes the repair in the TIR lane;

however, if the repair will impede the flow of advancing

trucks/equipment, the mechanic will perform the repair

outside of the TIR lanes. A similar inspection, this time for

“seaworthiness” is performed by the TIR clerk in the

“inbound” TIR lanes for truck/equipment entering the

terminal. In addition to the aforementioned inspection duties

and minor mechanical repair duties performed in the TIR

13. Mechanics are assigned to the TIR lanes on a rotating basis.

52a

Appendix F

lanes, when a reefer enters the TIR lanes, TIR checkers

initially evaluate and inspect a reefer’s refrigeration system

by turning reefers on and off; looking at fuel levels, air

exchange, and temperature settings; readjusting such settings

as need be; and recording such information onto a Reefer

Report, which is subsequently maintained by a reefer

mechanic who continues to monitor the reefer equipment

throughout the days while the reefer “quipment remains in

the terminal awaiting loading onto a vessel.

3. Equipment Control Clerks: Five equipment control

clerks (also referred to as ship checkers) are separately

supervised by stipulated supervisor Valentina Marrero.

The equipment control clerks work out of an equipment

control trailer and maintain the inventory of equipment owned

or leased by the Employer through its computer system. Three

of the equipment control clerks spend approximately 80 percent

of their time physically standing on the “string piece”™* uext to

a vessel and recording the identification numbers of cargo and

equipment being loaded or unloaded onto or from the vessel,

either through use of a hand-held computer and/or a clipboard

with the stow plan or manifest, for inventory tracking purposes.

The remainder of the three equipment control clerks’ time is

spent in the equipment control trailer performing related

equipment inventory tasks and reconciling discrepancies in

equipment location. Conversely, the remaining two equipment

control clerks occasionally perform the above-described

ship-side function and spend the remainder of their time in the

equipment control trailer performing related equipment

14. The “string piece” is an approximately 150 foot strip of

land adjacent to the water’s edge where cargo is “staged” prior to

being loaded onto the awaiting vessel.

53a

Appendix F

inventory tasks and reconciling discrepancies in equipment

location. The two equipment control clerks working in the trailer

assist the equipment control clerks’ performing the ship-side

function by inputting their data when back-to-back vessels are

being loaded and unloaded and they have insufficient time to

complete their data entry into the computer system.

4. Dispatch employees (Traffic Clerks'*, Dispatchers, and

Compliance Clerks): Five dispatchers and two compliance

clerks are supervised by stipulated supervisors Armando

Rodriquez and Ciro Cordero. The dispatchers receive

computer-generated dispatch instructions from the main office,

print a TIR, and give the TIR to an available independent truck

driver'® who is in the area looking for work. The dispatcher

may give the TIR to a “clock driver”, an hourly paid employee

of the Employer, when the booking is for a customer requiring

multiple location loadings or when the booking involves special

“bonding” requirements. The compliance clerks work in the

dispatch office and are responsible for insuring that all drivers

are in compliance with highway regulations.

$. Boarding Agents: Four boarding agents are supervised

by stipulated supervisor Maurice Policarpia.'’ Boarding agents

15. The record on remand does not contain testimony regarding

the primary duties of the traffic clerks.

16. The Employer contracts with approximately 80 truck drivers

who are independent contractors and thus not employees of the

Employer. No party is seeking to include these truck drivers in any

unit found appropriate.

17. The parties stipulated that Maurice Policarpia occupies the

position of Operations Manager and supervises both the boarding

agents and equipment operators.

54a

Appendix F

coordinate a ship’s arrival with the U.S. Customs, the U.S.

Coast Guard, the pilot station, and the Port Authority.

Boarding agents are the first employees of the Employer to

board an incoming vessel. Boarding agents perform

unspecified clerical aspects of preparing for the ship’s arrival.

6. Inbound Coordinators: Fourteen inbound coordinators

are separately supervised by stipulated supervisors Soli Chiu,

Teodoro Bruns, Marta Donnelly, and Ana Chao. Inbound

coordinators obtain an incoming ship’s manifest (a detailed

list of the cargo and containers onboard the ship) prior to the

ship’s arrival and enter the data from the manifest into the

Employer’s computer system. Simultaneously, the inbound

coordinators notify customers of the expected arrival time

of their cargo. Inbound coordinators coordinate with the U.S.

Department of Agriculture (USDA) for its inspection of all

incoming reefers. When fumigation of the reefer is required

by USDA, inbound coordinators contact a dispatcher who

will arrange for a clock driver to move the reefer to the

fumigation company operating within the terminal. When

other incoming containers are selected by U.S. Customs for

inspection, the inbound coordinators coordinate by radio with

the dispatchers to have the container moved by clock drivers

to Custom’s facility for inspection.

7. Claims Clerks: Three claims clerks are separately

supervised by stipulated supervisor Ingrid Cotes. The claims

clerks are located in an office next to the inbound

coordinators and process all claims of damaged cargo. Claims

clerks contact an equipment operator by radio to coordinate

the placement of damaged cargo for inspection. A claims clerk

is present when a surveyor and the customer inspect the

55a

Appendix F_

damaged cargo. The claims clerk photographs the damaged

cargo and initiates a damage report. The claims clerk obtains

backup paperwork relevant to the cargo, i.e. TIR reports, dock

receipt, reefer report to evaluate the liability for the claims.

Claims clerks maintain files on all drivers, ensure that each

driver is properly insured to haul cargo, and ensure that master

TIR agreements are on file for each driver.

8. Parts and Purchasing Clerks: Six parts and

purchasing clerks are separately supervised by stipulated

supervisors Carlos Rodriguez and Rudolfo Reyes. They physically

work in an area adjacent to dispatch, near the TIR lanes. Parts

and purchasing clerks order, receive, check and inventory

parts and materials for all terminal operations, including seals

for containers. They are responsible for keeping an up-to-date

inventory of all parts and materials needed for terminal

operations. Parts and purchasing clerks disburse parts and

materials to all departments on an as needed basis. Parts and

purchasing clerks operate forklifts several times each day to

receive and deliver parts and drive the forklifts as much as a

mile to get to the “string piece” near an awaiting vessel.

9. Stevedore Coordinators: Five stevedore coordinators

are separately supervised by stipulated supervisor Fernando

Delgato. Stevedore coordinators are located in a trailer in

the Port of Miami terminal. Based upon computer-stored

“booking” data, stevedore coordinators develop a “stow plan”

depicting where cargo scheduled for an outbound vessel will

be placed aboard the vessel. Stevedore coordinators work

closely with the equipment operators as they move the

containers, trailers, reefers, and chassis to the string piece

alongside the vessel. When problems arise with locating

56a

. Appendix F

scheduled cargo or with placement of scheduled cargo safely

on the vessel, the stevedore coordinators may contact

mechanics, TIR clerks, or equipment operators for relevant

information. Stevedore coordinators assist equipment control

clerks in resolving discrepancies between the stow plan and

cargo actually loaded onto the vessel.

REMAINING CLASSIFICATIONS

In Seaboard Marine, Ltd., 327 NLRB No. 108 (February 5,

1999), the Board ordered that Case 12-RC-8176 be remanded

to the Regional Director for further appropriate action to

determine whether the appropriate unit must also include the

Employer’s maintenance employees including mechanics",

equipment operators, clock. drivers, and vehicle shuttlers.

The functions of the employees in these classifications, as

established in the record on remand, are as follows:

10. Power mechanics (including welders): Twelve

power mechanics are separately supervised by stipulated

supervisor Castor Garcia.'” Power mechanics perform motor

18. Mechanics include separate classifications of power

mechanics (including welders); reefer mechanics; trailer mechanics;

tiremen and maintenance employees.

19. In the initial hearing in Case 12-RC-8176, Castor Garcia

and Raoul Arcia both were stipulated supervisors of the power

mechanics (including welders). The record on remand establishes

that subsequent to the initial hearing, the Employer expanded the

authority of Garcia and demoted Arcia, without loss of pay, to the

position of power mechanic. The record on remand reflects that

supervisor Castor Garcia so informed Raoul Arcia of his demotion

to power mechanic.

57a

Appendix F

and engine maintenance on the Employer’s equipment used

to move cargo, (i.e. “mules”, forklifts, and toploaders) and

on some cargo, such as used busses/trucks being shipped

overseas to make them self-propelled. Unlike reefer and

trailer mechanics, power mechanics are not provided the use

of step vans out of which to work. The record does not

disclose the principal location within the Port of Miami

terminal where power mechanics perform their work.

Stevedore coordinators request via radio the assistance of

power mechanics to load self-propelled heavy equipment

onto a vessel. TIR clerks request via radio the assistance of

power mechanics to repair equipment in the TIR lanes when

necessary. To repair certain types of leaks on equipment,

vehicle and equipment receiving clerks or equipment

operators will request via radio the assistance of power

mechanics. The record establishes that the Employer does

not require any specific education, certification or formal

training for power mechanics.

1]. Reefer mechanics: Twenty-two reefer mechanics

are separately supervised by stipulated supervisors Steven

Tzoumas, and Juan Urbina.” Reefer mechanics inspect,

maintain and repair refrigerated trailers and containers,

20. At the initial hearing in Case 12-RC-8176, Clyde Wingate,

Steven Tzoumas, and Juan Urbina each were stipulated as supervisors

of the reefer mechanics. At the hearing on remand, testimony referred

to Wingate, Tzoumas and Urbina first as supervisors and then as

“headers”. Later in the hearing, the parties stipulated that Steven

Tzoumas and Juan Urbina were statutory supervisors. Whether

intentional or inadvertent, the record does not address the duties or

supervisory status of Clyde Wingate. Inasmuch as the record is

insufficient to establish the primary duties of Clyde Wingate, he will

be permitted to vote subject to challenge.

58a

Appendix F

collectively called reefers. Reefer mechanics drive step vans

which contain needed tools and equipment to perform their

repairs throughout the Port of Miami terminal. Reefer

mechanics receive from inbound coordinators a list of

reefers, which have been ofi-loaded from a vessel and have

passed USDA inspection. Reefer mechanics monitor the

aforementioned reefers until they are delivered by clock

drivers or independent contractors to the appropriate

customer. Reefer mechanics monitor refrigerated cargo

awaiting shipment every six hours to insure that the required

refrigeration level is maintained so as to avoid spoilage and

record their observations onto the Reefer Report, which was

initially generated by the TIR clerk when the refrigerated

cargo first entered the TIR lanes. Reefer mechanics “quite

frequently” respond to radio calls from TIR clerks to repair

reefers in need of repair beyond that which the TIR clerks

can perform. Such repairs are performed in the TIR lane or

the reefer is driven out of the TIR lane by the clock driver or

independent driver for repair. The record establishes that the

Employer does not require any specific education,

certification or formal training requirements for reefer

mechanics.

12. Trailer mechanics: Seventeen trailer mechanics are

separately supervised by stipulated supervisor Juan

Rodriguez. Trailer mechanics inspect and repair containers,

reefers, chassis or trailers for general structural or mechanical

problems. Trailer mechanics work throughout the terminal

out of step vans which contain needed tools and equipment

to perform necessary repairs. Trailer mechanics receive from

inbound coordinators a list of containers or trailers that are

to be transported by truck over long distances. Trailer

59a

Appendix F

mechanics perform over-the-road inspections on such

equipment. Trailer mechanics inspect empty containers

coming off a vessel to determine if repairs are needed. Similar

to power mechanics and reefer mechanics, trailer mechanics

“quite frequently” respond to radio calls from TIR clerks to

repair equipment in need of repair beyond that which the

TIR clerks can perform. Similarly, trailer mechanics respond

to radio calls from vehicle and equipment receiving clerks

to repair equipment received in the vehicle receiving lot

which is in need of repair beyond that which the vehicle

and equipment receiving clerk can perform. The record

establishes that the Employer does not require any specific

education, certification or formal training requirements for

trailer mechanics.

13. Tiremen: Three tiremen are separately supervised

by stipulated supervisor Manuel Alvarez. While TIR clerks

are inspecting the truck and trailer in the “outbound” TIR

lane, one of the tiremen works within that same TIR lane

inserting equalized pressure into the truck and trailer tires

prior to the rig traveling on public roads. The remaining two

tiremen perform tire repair within the tire repair building

adjacent to the “inbound” TIR lane. The record establishes

that the Employer does not require any specific education,

certification or formal training requirements for tiremen.

14. Maintenance Employees: Two maintenance

employees perform general physical maintenance work at the

Port of Miami terminal, including sweeping out empty

containers, emptying trash in the terminal yard area and in

the TIR lanes, installing exhaust fans in the TIR lanes,

repairing a bathroom floor, installing an air conditioning unit

60a

Appendix F

in an office trailer, banging out dents in containers, and

patching minor holes in containers. The record does not

establish who directly supervises the two maintenance

employees; rather, it appears from the record that they receive

direction from various classifications when general physical

maintenance work is needed in any area of the terminal.

The record establishes that the Employer does not require

any specific education, certification or formal training

requirements for the maintenance employees.

15. Equipment operators (including headers):

Fifty-five equipment operators are supervised by stipulated

supervisors Albert Smalls, SJr., Yard Foreman, and Maurice

Policarpia, Operations Manager. Four ship teams of five

equipment operators each, one of whom on each team is a

“header”,?! stage equipment that is loaded or unloaded off

21. At the initial hearing, Petitioner 1922 and the Employer

stipulated that Joseph Cruz, Gerardo Palomo, Albert Smalls, Jr.,

Manuel Florian and Richard Deroxtro responsibly directed employees

in a manner which was not of a merely routine or clerical nature but

which requires the use of independent judgment. In the Decision

and Direction of Election in Case 12-RC-8176 the Acting Regional

Director found the five aforementioned individuals to be supervisors

within the meaning of Section 2(11) of the Act and excluded them

from the unit found appropriate therein. At the hearing on remand,

the parties stipulated that Joseph Cruz is now the Yard Manager at

Port Everglades facility and that Albert Smalls, Jr. is now the Yard

Foreman at the Port of Miami terminal and that both possess Section

2(11) authority. However, the Employer contends that the remaining

three employees (Gerardo Palomo, Manuel Florian, and Dick

Deroxtro) are no longer “supervisors” but rather are “headers” who,

along with three new “headers” (Roberto Tapanes, Richard Guilamo,

(Cont’d)

6la

Appendix F

vessels. A “yard team” and “Dick’s crew” comprised of 14

equipment operators and 6 equipment operators, respectively,

one of whom on each team/crew is a “header”, move equipment

and organize equipment within the yard. A “reefer team”

comprised of three equipment operators, with no “header”,

moves reefers. The teams/crew are assigned to staggered

shifts. “Headers” obtain a copy of the stow plan for their

teams’ assigned vessel from the stevedore coordinator and

distribute assignments to the equipment operators so that

cargo will be staged in the proper sequence. Equipment

operators also unload heavy equipment delivered by customers

to the terminal’s back gate and odd lot”?. Equipment operators

(Cont’d)

and Jesus Peraza) possess no supervisory indicia and should be

included in the unit. Although the record establishes that the “headers”

do not discipline their team/crew members without approval of the

Director of Operations, who conducts an independent investigation;

do not schedule teamlerew members; do not schedule vacations; do

not make changes to team/crew member schedules; and do not switch

team members. The record does not establish to what degree the

“headers” use independent judgment in otherwise directing employees

on their team/crew. Further, the record establishes that the “headers”

sign employee evaluations and were never told that their job

responsibilities had changed. Finally, no “header” suffered a loss of

pay because of the alleged change in duties. It appears from the record

that the only tangible change has been that a patch on the “headers”

uniform shirt now reads “header” rather than “supervisor”. Thus,

inasmuch as the record fails to establish sufficient facts as to the

degree of independent judgment used by the “headers” in carrying

out their duties, “headers” will be permitted to vote subject to

challenge.

22. The “odd lot” is a separate location at the Port of Miami

terminal where equipment which is too large to enter the TIR lane

will be received and inspected by a TIR cleik.

62a

Appendix F

use forklifts”’, top-loaders or cranes”‘ to remove a container

from the chassis or use a “mule” to position trailers, chassis

or reefers within the terminal. The director of operations

testified that equipment operators, like clock drivers and

vehicle shuttlers, must possess a CDL (commercial driving

license), but no other education, certification or formal

training is required.

The Petitioners presented one witness at the hearing on

remand, equipment operator Luis Vilarino, who testified that

when he was hired as an equipment operator in December

1996 a CDL “Class A’ license with air brakes, two years of

experience in driving heavy equipment, and an on-site driving

test using a “mule” were required by the Employer. Vilarino

further testified that he had viewed a notice posting as

recently as the day before the hearing on remand which

reflected the Employer’s continuing requirements that

23. Forklifts used by the Employer’s equipment operators are

up to 14 feet high, 20 feet long, and 15 feet wide and carry up to

66,000 pounds of weight.

24. Top-loaders or cranes used by the Employer's equipment

operators are up to 80 feet high and 20 feet wide and can pick up

containers as long as 45 feet and wide as 8 feet and weighing as

much as 90,000 pounds.

25. A CDL “Class A” license is the highest classification of

commercial driving license which allows the operation of a

combination of tractor/trailer with air brakes. ACDL “Class B” allows

the driving of straight trucks either with air brakes or hydraulics.

ACDL “Class C” allows the driving of a smaller truck. ACDL “Class

D” allows the driving of commercial vans that transport cargo over a

certain weight.

63a

Appendix F

equipment operators possess a CDL “Class A” license with

air brakes plus two years of experience in operating heavy

equipment. Vilarino further testified that equipment operators

do not come in daily contact with employees except for other

equipment operators. Specifically, Vilarino testified that

equipment operators do not come in direct contact with

dispatchers, TIR clerks, vehicle and equipment receiving

clerks, clock drivers, stevedore coordinators, equipment

control clerks, boarding agents, mechanics or inbound

coordinators. Vilarino testified that any communication

which equipment operators had with other classifications was

received through the “header” of the equipment operator’s

team/crew.

The Employer presented a trailer mechanic, a dispatcher,

and a vehicle and equipment receiving clerk at the hearing

on remand to rebut Vilarino’s testimony. The trailer mechanic

testified that (1) he frequently contacted equipment operators

directly to have equipment moved; (2) equipment operators

also contacted him directly by radio to ask whether he had

available equipment to move; and (3) he works with an

equipment operator when mounting chassis “fourteen to

fifteen” times a day and communicates with the equipment

operator directly by radio. The dispatcher testified that he

contacts equipment operators (including non-“headers”) via

radio two to three times an hour every day to locate equipment

or transport equipment. Finally, the vehicle and equipment

receiving clerk testified that he calls equipment operators

via radio multiple times per day to have equipment moved.

The vehicle and equipment receiving clerk testified that he

has called Vilarino directly and Vilarino has called him

directly to have equipment moved. The Employer did not

64a

Appendix F

address on rebuttal Vilarino’s testimony that the Employer

had posted a document reflecting that equipment operators

must have “Class A” licenses and two years of experience.

16. Clock Drivers: Five clock drivers are employed at

the Employer’s Port of Miami terminal and are supervised

by stipulated supervisors Armando Rodriquez and Ciro

Cordero, both of whom also supervise the dispatch

employees. Clock drivers are contacted via radio by

dispatchers to coordinate delivery of equipment to customers

who need loading at several different locations. Clock drivers

pick up the requested equipment by truck from the designated

area of the Port of Miami terminal either with the assistance

of equipment operators or on their own accord when

equipment operators are unavailable, proceed to the

“outbound” TIR lanes for inspection, drive to the customer's

location, await the filling of the load, generate a TIR for the

next load, and when completed, return the loaded equipment

back to-the terminal for inspection in the “inbound” TIR

lanes. However, frequently, clock drivers will perform both

the “outbound” and “inbound” TIR inspections themselves

outside the TIR lanes and turn in completed TIRs to the TIR

checkers for further processing. Upon completion of the

“inbound” inspection, clock drivers drive the cargo to the

designated location at the terminal where either an equipment

operator off-loads the cargo or the clock drivers off-load the

cargo themselves. When mounting the equipment or

dismounting the cargo themselves, the clock drivers will use

the same equipment as the equipment operators, including

forklifts, cranes (top-loaders) and special trucks (mules).

Clock drivers utilize the aforementioned equipment on an

estimated weekly basis. Director of operations Gonzalez

65a

Appendix F

testified that all clock drivers were prior equipment operators

for the Employer. Clock drivers frequently communicate with

equipment operators to obtain the location of equipment to

be mounted and/or the designated location within the terminal

where the cargo is to be dismounted. A clock driver will be

temporarily assigned to the Port Everglades facility to

function as an equipment operator on an approximate weekly

basis and will fill in for equipment operators at the Port

Everglades facility for vacation and sick leave.

17. Vehicle Shuttlers: Six vehicle shuttlers are

separately supervised by stipulated supervisor Thomas

Hernandez. Vehicle shuttlers drive the vehicles from the

vehicle receiving lot across the street to the “string piece”

for loading onto a vessel. When a vehicle is inoperable, the

vehicle shutiler will use a tow truck to tow the vehicle to the

“string piece”. As part of the staging process, vehicle shuttlers

may “stuff” the vehicle into a container to be loaded onto a

vessel and secure it with binders. When vehicles are “stuffed”

into containers, the vehicle shuttler radios ahead to an

equipment operator to have the container “grounded” so the

vehicle shuttler can drive the vehicle into the container. When

a vehicle is to be mounted onto a flatbed, the vehicle shuttler

radios ahead to an equipment operator to have the flatbed at

the “string piece”. If an equipment operator is unavailable to

lift the vehicle onto the flatbed, the vehicle shuttler

will operate a forklift to “ground” the vehicle onto the flatbed.

When vehicle shuttlers have completed their shuttling duties,

the shuttlers perform the same inspection duties as are

performed by vehicle and equipment receiving clerks.

This situation occurs two to three times weekly. Vehicle and

equipment receiving clerks, TIR clerks and equipment

66a

Appendix F

operators frequently assist vehicle shuttlers in driving

vehicles from the vehicle receiving lot to the “string piece”

when the workload necessitates such assistance. Vehicle

shuttlers may assist equipment operators “in a learning

process” on weekends and during peak need. Vehicle shuttlers

must possess a CDL license but no other education,

certification or formal training is required.

THE 36™ STREET YARD

At its 36" Street Yard, the Employer employs only 5 of

the aforementioned 17 classifications for a total of

approximately 38 employees. The five classifications

assigned to the 36" Street Yard are: trailer mechanics, power

mechanics (including a welder), equipment operators (one of

whom performs both equipment operator duties and clock

driver duties), a TIR clerk, and two dispatchers. The primary

function of the 36® Street Yard is to store most empty trailers,

store overflow empty containers which are in excess of the

immediate need at the terminal, and to perform necessary

repairs to empty trailers and containers. No inbound or

outbound cargo enters the 36" Street Yard. The record reflects

that the duties of each classification assigned to the 36* Street

Yard are similar to the duties for that classification at the

Port of Miami terminal except for those of the TIR clerk.

Thus, at the 36 Street Yard, the TIR clerk completes only

the top portion of the TIR and does not perform a visual

inspection or record data regarding the mechanical or

structural condition of the equipment. The TIR clerk at the

36" Street Yard is temporarily assigned to work as a TIR

clerk at the Port of Miami terminal to cover for absences

approximately once a month.

67a

Appendix F

THE PORT EVERGLADES FACILITY

The Employer expanded its operation to include the Port

Everglades facility in October 1998, approximately ten months

after the initial hearing in Case 12-RC-7186. The Employer’s

Port Everglades facility is located approximately 25 miles

from its Port of Miami terminal and is staffed with two

equipment operators, one checker®* and two stipulated

supervisors, specifically Marco Franco, Terminal Manager,

and Jesus Cruz, Yard Manager.

UNIFORM WORKING CONDITIONS/POLICIES/

PRACTICES/WAGE SCALE/BENEFITS

The Employer’s personnel policies and practices for

employee complaints, absenteeism, leave of absence,

tardiness, sick leave, code of conduct, dress codes, drug and

alcohol use, discipline, evaluations, wage increases, and

benefits are uniformly applied to all employees. Labor

relations is centralized in a Human Resources Department

located at the main office. Work and safety rules are

applicable to all employees. All employees at the Port of

Miami terminal punch one of two timeclocks. All employees,

except for temporary employees, are paid biweekly by the

Employer through direct deposit.?” Beginning wage rates for

26. The record on remand is unclear as to whether the checker

at the Port Everglades facility is a trailer interchange clerk or a vehicle

and receiving clerk.

27. The record on remand establishes that the Employer

contracts with a temporary employment agency to provide

approximately six vehicle shuttlers and an undisclosed number of

(Cont’d)

68a

Appendix F

all classifications range from $9.00 to $15.00 per hour, wage

caps for all classifications range from $10.00 to $17.00 per hour.

The Employer provides uniforms to employees who work

outside of the trailer offices. Blue shirts (pullover or button

down) with blue pants are provided employees; supervisors

wear white shirts with blue pants. Employer sponsored

activities are open to all employees and one employee

newsletter is distributed to all employees.

PERMANENT TRANSFERS

At the initial hearing in Case 12-RC-8176 Human Resource

Director Dumkley testified that 91 employees have permanently

transferred between classifications. Documentation received

in evidence to support her testimony establishes that since

1983 approximately 91 employees transferred between

classifications. Of these 91 employees who transferred,

approximately 20 permanent transfers were between

classifications remanded by the Board and equipment

operator positions; approximately 10 permanent transfers

were amongst the classifications in the “smallest appropriate

unit” found by the Board; approximately 6 permanent

transfers were between classifications in the “smallest

appropriate unit” found by the Board and remanded

positions other than equipment operators, and approximately

3 permanent transfers were between classifications in the

“smallest appropriate unit” found by the Board and equipment

(Cont'd)

employees in other unidentified classifications to work at the

Employer’s Port of Miami terminal. The parties stipulated that all

temporary employees are to be excluded from any unit found

appropriate herein.

69a

Appendix F

operators. In addition to the above-described permanent

transfers, at the hearing on remand, documentation was

entered into evidence establishing that 14 current employees

(11 of whom were not included in the above-described

employee permanent transfers) had permanently transferred

either between classifications in the “smallest appropriate

unit” found by the Board and those remanded positions,

or between remanded positions. Six (6) of the permanent

transfers occurred within the past year.

ANALYSIS AND CONCLUSION

Section 9(b) of the Act states that, “the Board shall decide

in each case whether, to assure to employees the fullest

freedom in exercising the rights guaranteed by this Act, the

unit appropriate for the purpose of collective bargaining shall

be the employer unit, craft unit, or subdivision thereof”

The statute does not require that a unit for bargaining be

the only appropriate unit, or the ultimate unit, or the most

appropriate unit. Rather, the Act requires only that the unit

be “appropriate,” that is, appropriate to insure to employees

in each case “the fullest freedom in exercising the rights

guaranteed by this Act.” Morand Bros. Beverage Co.,

91 NLRB 409 (1950), enfd. 190 F.2d 576 (7 Cir. 1951);

and Dezcon, Inc., 295 NLRB 109 (1989). A union is,

therefore, not required to seek representation in the most

comprehensive grouping of employees unless “‘an appropriate

unit compatible with that requested does not exist.”

P. Ballantine & Sons, 141 NLRB 1103 (1963); Bamberger's

Paramus, 151 NLRB 748, 751 (1965); and Purity Food

Stores, 160 NLRB 651 (1966). Moreover, it is well

70a

Appendix F

established that there is more than one way in which

employees of a given employer may appropriately be grouped

for purposes of collective bargaining. General Instrument

Corp. v. NLRB, 319 F.2d 420, 422-423 (4" Cir. 1963),

cert. denied, 375 U.S. 966 (1964); and Mountain Telephone

Co. v. NLRB, 310 F.2d 478, 480 (10" Cir. 1962).

In making unit determinations, the Board is required to

strike a balance between the competing interests of the union,

employer, employees and the public. The petitioner’s desire

as to the unit is a relevant consideration, although not

dispositive. The Lundy Packing Company, Inc., 314 NLRB

1042 (1994); Airco, Inc., 273 NLRB 348 (1984). While the

Act does not lay down any specific standards for making

unit determinations, the Board has developed a number of

criteria to be applied in such cases. Foremost is the principle

that mutuality of interest in wages, hours, and working

conditions is the prime determinant of whether a given group

of employees constitutes an appropriate unit. Continental

Baking Co., 92 NLRB 777, 782 (1952). Thus, the key

question is whether the employees have a sufficient

community of interest to constitute an appropriate unit.

Tidewater Oil Co. v. NLRB, 358 F.2d 363, 366 (2d Cir. 1964),

cert. denied, 380 U.S. 910 (1965). As stated by the Board in

Continental Baking:

In deciding whether the requisite mutuality exists,

the Board looks to such factors as the duties, skills,

and working conditions of the employees

involved, and especially to any existing bargaining

history. [92 NLRB at 782-783.]

Tla

Appendix F

The community-of-interest test also considers factors

such as the degree of functional integration, Atlanta Hilton

& Towers, 273 NLRB 87 (1984); common supervision,

Associated Milk Producers, 250 NLRB1407 (1970);

employee skills and functions, Phoenician, 308 NLRB 826

(1992); interchangeability and contact among employees,

Associated Milk Producers, supra; and general working

conditions and fringe benefits, Allied Gear & Machine Co.,

250 NLRB 679 (1950).

With respect to the establishment of a craft or department

unit, the general rule is:

Where no bargaining history on a more

comprehensive basis exists, a craft or traditional

department group having a separate identity of

functions, skills, and supervision, exercising craft

skills or having a craft nucleus, is generally

appropriate. See, for example, E. J. Du Pont &

Co., 162 NLRB 413 (1966). See also E. J. Du Pont

& Co., 192 NLRB 1019 (1971).

In Burns & Roe Services Corp., 313 NLRB 1307,1308

(1994), the Board described the test:

In determining whether a petitioned-for group of

employees constitutes a separate craft unit, the

Board looks at whether the petitioned-for

employees participate in a formal training or

apprenticeship program; whether the work is

functionally integrated with the work of the

excluded employees; whether the duties of the

72a

Appendix F

petitioned-for employees overlap with the duties

of the excluded employees; whether the employer

assigns work according to need rather than on craft

or jurisdictional lines; and whether the

petitioned-for employees share common interests

with other employees, including wages, benefits

and cross-training.

Unless a particular departmental grouping of employees

is functionally distinct so as to have a separate community

of interest, the Board will find a wall-to-wall unit to be the

appropriate unit. The degree of functional integration in the

employer’s operations is given considerable weight in the

Board’s unit determination. J. Ray McDermott and Co. Inc.,

240 NLRB 864 (1970); Keyser Aluminum and Chemical

Corp., 177 NLRB 682 (1969); Minnesota Mining and

Manufacturing Co., 129 NLRB 789 (1960).

Applying these principles to the instant consolidated

cases, while I recognize that the equipment operators

petitioned for by Petitioner Local 1416 in Case 12-RC-8325

have certain distinct functions and interests that are not

common to. all other employees, I find that the equipment

operators do not constitute a distinct and homogeneous group

(or true craft unit in the traditional sense) and are not a

functionally distinct department of the Employer. In reaching

that conclusion, all relevant factors in the record as a whole

were considered. Specifically, the record establishes that

equipment operators have frequent and varied work contacts

with dispatchers, stevedore coordinators, TIR clerks, clock

drivers, vehicle and equipment receiving clerks, and

mechanics; that equipment operators and clock drivers

73a

Appendix F

similarly mount and dismount cargo; that vehicle shuttlers

stage vehicles onto the “string piece” similar to the equipment

operators’ staging of equipment onto the “string piece”; that

mechanics, like equipment operators, operate forklifts,

toploaders and “mules”; that equipment operators, clock

drivers, and vehicle shuttlers similarly are required to possess

a CDL; that even if the equipment operators must possess a

CDL “Class A”, clock drivers in all likelihood also possess a

CDL “Class A” since the record establishes that all clock

drivers previously had been equipment operators for the

Employer, and that equipment operators share common

benefits and conditions of employment similar to all other

employees. See Walker Boat Yard, Inc.,273 NLRB 309 (1984);

Brown and Root, Inc., 258 NLRB 1002 (1981); Beecham

Products, Inc., 251 NLRB 731 (1980); and U.S. Plywood-

Champion Papers, 174 NLRB 292 (1969). See also,

Metropolitan Opera Association, Inc., 327 NLRB No. 136

(February 26, 1999).

In its decision on review, Seaboard Marine, Ltd.,

327 NLRB No. 108, the Board has already found there is a

high degree of functional integration in the Employer’s operation

and that the work performed by the trailer exchange clerks,

the vehicle and equipment receiving clerks, and equipment

control clerks is directly related to and integrated with the

work of the majority, if not all, of the Employer’s remaining

employees. The Board further found that, at a minimum, the

appropriate unit must also include dispatch employees (traffic

clerks, dispatchers and driver compliance employees),

boarding agents, inbound coordinators, claims clerks, parts/

purchasing clerks, and stevedore coordinators. The Board

stated that the record then before it was not sufficient to

74a

Appendix F

determine whether the appropriate unit must also include the

Employer’s maintenance employees, including mechanics,

equipment operators, clock drivers and vehicle shuttlers.

The Petitioners at the hearing on remand expressed

an interest in proceeding to an election in any broader

unit found appropriate. Thus, I must determine whether

the “smallest appropriate unit” found by the Board also

must include the following eight classifications — power

mechanics (including welders), reefer mechanics, trailer

mechanics, tiremen, maintenance, equipment operators,

clock drivers, and vehicle shuttlers.

Power Mechanics (including welders): These twelve

employees perform motor and engine maintenance on all

equipment used by equipment operators, clock drivers, and

vehicle shuttlers to move cargo, as well as on some of the

cargo. In performing such maintenance work, power

mechanics come in contact with stevedore coordinators, TIR

clerks, equipment operators, clock drivers, and vehicle

shuttlers. No specific education, certification or formal

training is required. Thus, insofar as these employees

maintain and repair the equipment which is directly involved

in the moving of cargo, they form an integral part of the

Employer’s operations. Based upon the substantial

integration and aforementioned contacts with other

employees, the power mechanics (including welders) shall

be included in the unit.”

28. As discussed with respect to equipment operators, the record

fails to reflect that the power mechanics or other mechanics constitute

a distinct and homogeneous group (or a true craft unit in the traditional

sense) or a functionally distinct department of the Employer.

75a

Appendix F

Reefer Mechanics: These twenty-two employees inspect,

maintain and repair refrigerated trailers and containers.

collectively called reefers. In performing such maintenance

work, reefer mechanics come in contact with TIR clerks,

inbound coordinators, and equipment operators, two of which

specifically are assigned to work directly with the reefer

mechanics. No specific. education, certification or formal

training is required. Thus, insofar as these employees

maintain and repair the equipment which is directly involved

in the moving of cargo, they form an integral part of the

Employer’s operations. Based upon the substantial

integration and aforementioned contacts with other

employees, the reefer mechanics shall be included in the unit.

Trailer Mechanics: These seventeen employees inspect

and repair containers, reefers, chassis or trailers for general

structural or mechanical problems. In performing such

maintenance work, trailer mechanics come in contact with

inbound coordinators, TIR clerks, and vehicle and equipment

receiving clerks. No specific education, certification or

formal training is required. Thus, insofar as these employees

maintain and repair the equipment which is directly involved

in the moving of cargo, they form an integral part of the

Employer’s operations. Based upon the substantial integration

and aforementioned contacts with other employees, the trailer

mechanics shall be included in the unit.

Tiremen: One of the three tiremen work within the same

TIR lane with TIR clerks while the tireman inserts equalized

pressure into the truck and trailer tires; the other two tiremen

perform tire repair in a building adjacent to the “inbound”

TIR lane. In performing such maintenance work, tiremen

76a

Appendix F

come in contact with at least TIR clerks. No specific

education, certification or formal training is required. Thus,

insofar as these employees maintain and repair the tires on

equipment which is directly involved in the moving of cargo,

they form an integral part of the Employer’s operations. Based

upon the substantial integration and aforementioned contacts

with other employees, the tiremen shall be included in the unit.

Maintenance employees: These two employees perform

general physical maintenance work at the terminal, including

sweeping out empty containers, emptying trash throughout

the terminal, installing exhaust fans, repairing floors, and

banging out dents and patching minor holes in containers.

As the aforementioned duties occur throughout the terminal,

maintenance employees come in contact with all classifications

of employees, specifically the TIR clerks, trailer mechanics,

and power mechanics. No specific education, certification

or formal training is required. Thus, insofar as these

employees maintain and repair the equipment which is

directly involved in the moving of cargo, they form an

integral part of the Employer’s operations. Based upon the

substantial integration and aforementioned contacts with

other employees, the maintenance employees shall be

included in the unit.

_ Equipment Operators: These fifty-five employees stage

equipment that is loaded or unloaded off vessels and move

and organize equipment within the terminal. In performing

these duties, equipment operators come in contact with power

mechanics, trailer mechanics, reefer mechanics, clock drivers,

vehicle shuttlers, stevedore coordinators, inbound

coordinators, TIR clerks, vehicle and equipment receiving

77a

Appendix F

clerks. Equipment operators, like clock drivers and vehicle

shuttlers, must possess a CDL but no other education,

certification or formal training is required. Thus, insofar as

these employees are directly involved in the moving of cargo,

they form an integral part of the Employer’s operations. Based

upon the substantial integration and aforementioned contacts

with other employees and my finding above that they do not

constitute a separate appropriate unit, the equipment

operators shall be included in the unit.

Clock Drivers: These five employees deliver equipment

to customers who need loading at several different locations

and then return with the loaded equipment to the terminal

for shipment. Rather than seeking the assistance of equipment

operators, clock drivers frequently mount and dismount their

own equipment. Rather than having TIR clerks perform TIR

inspections for them, clock drivers frequently perform the

TIR. inspections themselves. In performing their job

functions, clock drivers come in contact with dispatchers,

TIR clerks and equipment operators. Clock drivers, like

equipment operators and vehicle shuttlers, must possess a

CDL, but no other education, certification or formal training

is required. Thus, insofar as these employees are directly

involved in the moving of cargo, they form an integral part

of the Employer’s operations. Based upon the substantial

integration and aforementioned contacts with other

employees, the clock drivers shall be included in the unit.

Vehicle Shuttlers: These six employees drive vehicles

from the vehicle receiving lot across the street to the “string

piece” for loading onto a vessel. In performing these duties,

the vehicle shuttlers come in contact with vehicle and

78a

Appendix F

equipment receiving clerks, TIR clerks, and equipment

operators. Vehicle shuttlers, like equipment operators and

clock drivers, must possess a CDL, but no other education,

certification or formal training is required. Thus, insofar as

these employees are directly involved in the moving of cargo,

they form an integral part of the Employer’s operations. Based

upon the substantial integration and aforementioned contacts

with other employees, the vehicle shuttlers shall be included

in the unit.

In summary, the record as a whole establishes that the

Employer’s operations and functions are such as to warrant a

finding that only an overall unit is appropriate. Birdsall, Inc.,

268 NLRB 186 (1983); Walker Boat Yard, Inc., supra.

In view of the foregoing and the record as a whole,

I find the following employees of the Employer constitute a

unit appropriate for the purpose of collective bargaining

within the meaning of Section 9(b) of the Act:

All full-time and regular part-time trailer

interchange clerks, vehicle and equipment

receiving clerks, equipment control clerks,

dispatch employees (traffic clerks, dispatchers,

and compliance clerks), boarding agents, inbound

coordinators, claims clerks, parts and purchasing

clerks, stevedore coordinators, power mechanics

(including welders), reefer mechanics, trailer

mechanics, tiremen, maintenance employees,

equipment operators, clock drivers, and vehicle

shuttlers, employed by the Employer’s facilities

located at 36" Street and at 1306 Port Boulevard

79a

A ppendix F

in Miami, Florida, and at 3800 SE Macintosh

Road, Hollywood, Florida, but excluding all

temporary employees, office clerical employees,

guards and supervisors”’ as defined in the Act.*°

29. The parties stipulated, and I find, that the following assistant

foremen, foremen, and supervisors responsibly direct employees in

a manner which is not of a merely routine or clerical nature but which

requires the use of independent judgment and are thus excluded from

the unit as supervisors within the meaning of Section 2(11) of the

Act: Supervisor of the vehicle and equipment receiving clerks and

the trailer interchange clerks — Juan Carlos Perara; Supervisor of

equipment control clerks — Valentina Marrero; Supervisors of

dispatch employees (traffic clerks, dispatchers, and compliance

clerks) and clock drivers — Armando Rodriquez and Ciro Cordero;

Supervisor of boarding agents and equipment operators — Maurice

Policarpia; Supervisors of inbound coordinators — Soli Chiu,

Teodoro Bruns, Marta Donnelly, and Ana Chao; Supervisor of claims

clerks - Ingrid Cotes; Supervisors of parts and purchasing clerks —

Carlos Rodriguez and Rudolfo Reyes; Supervisor of stevedore

coordinators — Fernando Delgato; Supervisor of power mechanics

(including welders) — Castor Garcia; Supervisors of reefer mechanics

— Steven Tzoumas and Juan Urbina; Supervisor of trailer mechanics

— Juan Rodriguez; Supervisor of tiremen — Manuel Alvarez;

Supervisors of equipment operators — Albert Smalls, Jr., and

Maurice Policarpia; Supervisor of vehicle shuttlers — Thomas

Hernandez, Supervisors of employees assigned to the Port Everglades

facility — Marco Franco (terminal manager) and Jesus Cruz

(yard manager); and Supervisors of employees assigned to the

36" Yard — Juan “Pepe” Gonzales, Miguel Hiedra, and Alexis

Jimenez. As noted earlier herein, the “headers” working with the

equipment operators and Clyde Wingate may vote subject to challenge.

30. As the unit found appropriate herein is, in view of my

findings herein, larger than each of the units initially sought by the

(Cont’d)

80a

Appendix F

DIRECTION OF ELECTION

An election by secret ballot shall be conducted by the

undersigned among the employees in the unit found appropriate

at the time and place set forth in the notice of election to be

issued subsequently, subject to the Board’s Rules and

Regulations. Eligible to vote are those in the unit who were

employed during the payroll period ending immediately before

the date of this Decision, including employees who did not work

during that period because they were ill, on vacation or

temporarily laid off. Also eligible are employees engaged in an

economic strike which commenced less than 12 months before

the election date and who retained their status as such during

the eligibility period and their replacements. Those in the military

services of the United States may vote if they appear in person

at the polls. Ineligible to vote are employees who have quit or

been discharged for cause since the designated payroll period,

employees engaged in a strike who have been discharged for

cause since the commencement thereof and who have not been

rehired or reinstated before the election date and employees

engaged in an economic strike which commenced more than

(Cont'd)

Petitioners, and as it has been administratively determined that neither

Petitioner has an adequate showing of interest to support its petition,

each Petitioner must submit an adequate showing of interest within

14 days from the date of this Supplemental Decision and Direction

of Election in Case 12-RC-8176 and Decision and Direction of

Election in Case 12-RC-8325, absent which, if the Petitioner does

not withdraw its petition, the petition will be dismissed. Furthermore,

if an adequate showing of interest is presented by one Petitioner only,

the other Petitioner should notify the undersigned within the same

14 days whether or not it wishes to remain on the ballot as an

intervenor in that case.

8la

Appendix F

12 months before the election date and who have been

permanently replaced.*' Those eligible shall vote whether or

not they desire to be represented for collective bargaining

purposes by International Longshoremen’s Association,

Local 1922, affiliated with International Longshoremen’s

Association, AFL-CIO, or by International Longshoremen’s

Association, Local 1416, affiliated with International

Longshoremen’s Association, AFL-CIO, or neither.*”

31. In order to assure that all eligible voters may have the

opportunity to be informed of 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 (1966); N.L.R.B. v.

Wyman-Gordon Company, 394 U.S. 759 (1969). Accordingly, it is hereby

directed that within seven (7) days of the date of this Supplemental

Decision and Direction of Election in Case 12-RC-8176 and Decision

and Direction of Election in Case 12-RC-8325, three (3) copies of an

alphabetized election eligibility list, containing the full names and

addresses of all eligible voters in the unit found appropriate, shall be

filed by the Employer with the Regional Director for Region 12. North

Macon Health Care Facility, 315 NLRB 359 (1994). This list may

initially be used by the Regional Director to assist in determining an

adequate showing of interest. The Regional Director shall make the list

available to all parties to the election. In order to be timely filed, such

list must be received in the Regional Office on or before April 2, 1999.

No extension of time to file this list may be granted except in

extraordinary circumstances, nor shall the filing of a request for review

operate to stay the filing of such list.

32. Under the provisions of Section 102.67 of the Board’s Rules

and Regulations, Series 8, as amended, a request for review of this

Decision may be filed with the National Labor Relations Board,

addressed to the Executive Secretary, 1099 14th Street NW, Washington,

DC 20570-0001. This request must be received by the Board in

Washington by April 9, 1999.

82a

Appendix F

DATED at Tampa, Florida, this 26th day of March, 1999.

s/ Rochelle Kentov

Rochelle Kentov, Regional Director

National Labor Relations Board, Region 12

201 E. Kennedy Blvd., Suite 530

Tampa, FL 33602-5824

83a

APPENDIX G — RELEVANT STATUTORY

PROVISIONS

29 U.S.C. § 151

§ 151. Findings and declaration of policy

The denial by some employers of the right of

employees to organize and the refusal by some

employers to accept the procedure of collective

bargaining lead to strikes and other forms of

industrial strife or unrest, which have the intent or

the necessary effect of burdening or obstructing

commerce by (a) impairing the efficiency, safety, or

operation of the instrumentalities of commerce;

(b) occurring in the current of commerce;

(c) materially affecting, restraining, or controlling

the flow of raw materials or manufactured or

processed goods from or into the channels of

commerce, or the prices of such materials or goods

in commerce; or (d) causing diminution of

employment and wages in such volume as

substantially to impair or disrupt the market for goods

flowing from or into the channels of commerce.

The inequality of bargaining power between

employees who do not possess full freedom of

association or actual liberty of contract, and

employers who are organized in the corporate or

other forms of ownership association substantially

burdens and affects the flow of commerce, and tends

to aggravate recurrent business depressions, by

depressing wage rates and the purchasing power of

wage earners in industry and by preventing the

84a

Appendix G

stabilization of competitive wage rates and working

conditions within and between industries.

Experience has proved that protection by law

of the nght of employees to organize and bargain

collectively safeguards commerce from injury,

impairment, or interruption, and promotes the flow

of commerce by removing certain recognized

sources of industrial strife and unrest, by encouraging

practices fundamental to the friendly adjustment of

industrial disputes arising out of differences as to

wages, hours, or other working conditions, and by

restoring equality of bargaining power between

employers and employees. Experience has further

demonstrated that certain practices by some labor

organizations, their officers, and members have the

intent or the necessary effect of burdening or

obstructing commerce by preventing the free flow

of goods in such commerce through strikes and other

forms of industrial unrest or through concerted

activities which impair the interest of the public in

the free flow of such commerce. The elimination of

such practices is a necessary condition to the

assurance of the rights herein guaranteed.

It is hereby declared to be the policy of the

United States to eliminate the causes of certain

substantial obstructions to the free flow of commerce

and to mitigate and eliminate these obstructions

when they have occurred by encouraging the practice

and procedure of collective bargaining and by

protecting the exercise by workers of full freedom

of association, self-organization, and designation of

85a

Appendix G

representatives of their own choosing, for the

purpose of negotiating the terms and conditions of

their employment or other mutual aid or protection.

29 U.S.C. § 157

§ 157. Right of employees as to organization, collective

bargaining, etc.

Employees shall have the right to self-

organization, to form, join, or assist labor

organizations, to bargain collectively through

representatives of their own choosing, and to engage

in other concerted activities for the purpose of

collective bargaining or other mutual aid or

protection, and shall also have the right to refrain

from any or all of such activities except to the extent

that such right may be affected by an agreement

requiring membership in a labor organization as a

condition of employment as authorized in section

158(a)(3) of this title.

29 U.S.C. § 159

§ 159. Representatives and elections

(a) Exclusive representatives; employees’ adjustment

of grievances directly with employer

Representatives designated or selected for the

purposes of collective bargaining by the majority

of the employees in a unit appropriate for such

86a

Appendix G

purposes, shall be the exclusive representatives

of all the employees in such unit for the purposes

of collective bargaining in respect to rates of pay,

wages, hours of employment, or other conditions

of émployment: Provided, That any individual

employee or a group of employees shall have the

right at any time to present grievances to their

employer and to have such grievances adjusted,

without the intervention of the bargaining

representative, as long as the adjustment is not

inconsistent with the terms of a collective-

bargaining contract or agreement then in effect:

Provided further, That the bargaining

representative has been given opportunity to be

present at such adjustment.

(b) Determination of bargaining unit by Board

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 subdivision thereof: Provided, That the

Board shall not (1) decide that any unit is appropriate

for such purposes if such unit includes both

professional employees and employees who are not

professional employees unless a majority of such

professional employees vote for inclusion in such

unit; or (2) decide that any craft unit is inappropriate

for such purposes on the ground that a different unit

has been established by a prior Board determination,

87a

Appendix G

unless a majority of the employees in the proposed

craft unit vote against separate representation or

(3) decide that any unit is appropriate for such

purposes if it includes, together with other

employees, any individual employed as a guard to

enforce against employees and other persons rules

to protect property of the employer or to protect the

safety of persons on the employer’s premises; but

no labor organization shall be certified as the

representative of employees in a bargaining unit of

guards if such organization admits to membership,

or is affiliated directly or indirectly with an

organization which admits to membership,

employees other than guards.

* * *

(d) Petition for enforcement or review;

transcript |

Whenever an order of the Board made

pursuant to section 160(c) of this title is based in

whole or in part upon facts certified following an

investigation pursuant to subsection (c) of this

section and there is a petition for the enforcement

or review of such order, such certification and the

record of such investigation shall be included in

the transcript of the entire record required to be

filed under subsection (e) or (f) of section 160 of

this title, and thereupon the decree of the court

enforcing, modifying, or setting aside in whole

or in part the order of the Board shall be made

88a

Appendix G

and entered upon the pleadings, testimony, and

proceedings set forth in such transcript.

* *« *

29 C.ER. § 101.21

§ 101.21 Procedure after hearing.

(a) Pursuant to section 3(b) of the Act, the Board

has delegated to its Regional Directors its powers

under section 9 of the Act to determine the unit

appropriate for the purpose of collective bargaining,

to investigate and provide for hearings and determine

whether a question of representation exists, and to

direct an election or take a secret ballot under

subsection (c) or (e) of section 9 and certify the

results thereof. These powers include the issuance

of such decisions, orders, rulings, directions, and

certifications as are necessary to process any

representation or deauthorization petition. Thus, by

way of illustration and not of limitation, the Regional

Director may dispose of petitions by administrative

dismissal or by decision after formal hearing; pass

upon rulings made at hearings and requests for

extensions of time for filing of briefs; rule on

objections to elections and challenged ballots in

connection with elections Directed by the Regional

Director or the Board, after administrative

investigation or formal hearing; rule on motions to

amend or rescind any certification issued after the

effective date of the delegation; and entertain

89a

Appendix G

motions for oral argument. The Regional Director

may at any time transfer the case to the Board for

decision, but until such action is taken, it will be

presumed that the Regional Director will decide the

case. In the event the Regional Director decides the

issues in a case, the decision is final subject to the

review procedure set forth in the Board’s Rules and

Regulations.

29 C.ER. § 102.67

§ 102.67 Proceedings before the regional director; further

hearing; briefs; action by the regional director, appeals from

action by the regional director; statement in opposition to appeal;

transfer of case to Board; proceedings before the Board; Board

action.

(b) A decision by the regional director upon the

record shall set forth his findings, conclusions, and

order or direction. The decision of the regional

director shall be final: Provided, however,

That within 14 days after service thereof any party

may file a request for review with the Board

in Washington, D.C. The regional director shall

schedule and conduct any election directed by the

decision notwithstanding that a request for review

has been filed with or granted by the Board.

The filing of such a request shall not, unless

90a

Appendix G

otherwise ordered by the Board, operate as a stay of

the election or any action taken or directed by the

regional director: Provided, however, That if a

pending request for review has not been ruled upon

or has been granted ballots whose validity might be

affected by the final Board decision shall be

segregated in an appropriate manner, and all ballots

shall be impounded and remain unopened pending

such decision.

(c) The Board will grant a request for review only

where compelling reasons exist therefor.

Accordingly, a request for review may be granted

only upon one or more of the following grounds:

(1) That a substantial question of law or

policy is raised because of (i) the absence

of, or (ii) a departure from, officially

reported Board precedent.

(2) That the regional director’s decision

on a substantial factual issue is clearly

erroneous on the record and such error |

prejudicially affects the rights of a party.

(3) That the conduct of the hearing or any

ruling made in connection with the

proceeding has resulted in prejudicial

error.

9la

Appendix G

(4) That there are compelling reasons for

reconsideration of an important Board rule

or policy.