International Longshoremen's Association

620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association; Interna- tional Longshoremen's Association #1922; and International Longshoremen's Association #1526 and Sea-Land Service, Inc. (Atlantic Di- vision) and District #1, Pacific Coast District, Marine Engineers Beneficial Association, AFL- CIO and Seafarers International Union of North America, Atlantic, Gulf Lakes and Inland Waters District. Case 12-CD-262 May 20, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Sea-Land Service, Inc. (At- lantic Division), herein called the Employer, alleg- ing that International Longshoremen's Association; International Longshoremen's Association #1922; and International Longshoremen's Association #1526, herein called the Respondent, had violated Section 8(b)(4)(D) of the Act by engaging in cer- tain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its members rather than to employees represent- ed by District #1, Pacific Coast District, Marine Engineers Beneficial Association, AFL-CIO and Seafarers International Union of North America, Atlantic, Gulf Lakes and Inland Waters District, herein called MEBA and SIU, respectively. Pursuant to notice, a hearing was held before Hearing Officer Marvin P. Jackson on December 11, 12, and 13, 1979. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evi- dence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: i Respondent has filed a motion asking the Board to accept exhibits pertaining to the proceedings before United States District Judge Sidney Aronovitz, which the Hearing Officer rejected, to take administrative recognition of the contents of these exhibits, and to dismiss the 8(bX4)(D) charge based on the district court proceeding. We hereby grant the motion to the extent we take administrative recognition of the contents of the rejected exhibits, but we deny the motion in all other respects as the district court proceedings do not address the issues decided herein. 249 NLRB No. 69 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Delaware corporation with a place of business in Port Everglades, Florida, is engaged in the containerized ocean transportation business. During the past year, the Employer purchased and received at its Port Everglades facility goods and materials valued in excess of $50,000 directly from vendors located outside the State of Florida. The parties also stipulated, and we find, that the Em- ployer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Re- spondent, MEBA, and SIU are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute On October 2, 1979,2 the Employer began oper- ating a Paceco shoreside container crane at its Port Everglades, Florida, facility. The Paceco crane is used to load and unload containerized cargo on and off oceangoing vessels. The Employer assigned the maintenance work on the Paceco crane to one MEBA member and two SIU members, the MEBA member supervising the work of the SIU members along with performing maintenance duties. The Employer assigned the actual operation of the crane to Respondent's members. On October 2, Respondent's representatives told the Employer's director of labor relations that it wanted the Paceco crane maintenance work for its members; that same day Respondent's members began picketing the Port Everglades facility. The parties stipulated that the purpose of the picketing was to force the Employer to assign the crane maintenance work to Respondent's members. The picketing lasted approximately 9 hours until United States District Judge Sidney Aronovitz granted the Employer a temporary restraining order halting the picketing and the resultant work stoppage. On Oc- tober 23, a preliminary injunction was granted con- ditioned upon the submission of the dispute to Re- spondent's grievance process, including arbitration. In accordance with the court order, Respondent submitted the dispute to its contractual grievance committee, the Labor Relations Committee, com- posed of representatives of Respondent and the Southeast Florida Ports Employees Association 2 All dates are 1979, unless otherwise stated. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION; ETC. 621 (herein SFPEA.). The Employer's stevedore, Har- rington and Company, is a member of SFPEA. On November 1, the Labor Relations Committee, rely- ing solely on Respondent's collective-bargaining agreements with SFPEA, particularly article 22 of the "Clerks and Checkers Agreement," 3 deter- mined that Respondent had jurisdiction to perform the crane maintenance work. The Employer was present at the Committee's hearing and voiced its objection to the decision, contending it was bound by its collective-bargaining agreements with MEBA and SIU to award the disputed work to their members. Neither MEBA nor SIU participat- ed in this proceeding and their contracts were not considered by the Committee. On November 6 the Employer filed a charge against Respondent alleging a violation of Section 8(b)(4)(D) of the Act. On November 23, Judge Aronovitz confirmed the decision of the Labor Re- lations Committee but ordered the preliminary in- junction to remain in effect pending a determina- tion by the Board in this proceeding. B. The Work in Dispute The parties agree, and we find, that the work in dispute involves the maintenance work on the Em- ployer's Paceco crane in Port Everglades, Florida. This work basically entails performing repair work; routinely checking electrical safety equipment, wire rope, motors, brushes, bearings, and gears; chang- ing wires; and vacuuming dust. C. Contentions of the Parties Respondent contends that the disputed work should be awarded to employees it represents based on article 22 of its "Clerks and Checkers Agree- ment"; the decision of the Labor Relations Com- mittee finding Respondent had jurisdiction to per- form the disputed work; industry practice; econo- my and efficiency of operation; and its members' skills. The Employer, the MEBA, and the SIU contend that the work in dispute should be awarded to em- ployees represented by the MEBA and SIU on the basis of the MEBA's and the SIU's collective-bar- gaining agreements with the Employer covering the disputed work; the Employer's assignment and past practice; industry practice; economy and effi- ciency of operation; and the skills of MEBA or SIU members. 3 Art. 22 of the "Clerks and Checkers Agreement" provides, "ILA personnel shall have jurisdiction over maintenance, servicing and repair of all container equipment either owned or leased including roll-on/roll- off and all related equipment. The Employer retains the right to send out for repairs and servicing all equipment under reasonable manufacturers warranty or beyond the capabilities of ILA repair facilities." D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. As stated above, the parties stipulated that the object of Respondent's picketing of the Employer's Port Everglades facility was to force the Employer to assign the disputed work to employees it repre- sents. There is no evidence that the parties have adjusted or agreed upon any method for the volun- tary adjustment of the work dispute. The Labor Relations Committee's decision in favor of Re- spondent is not dispositive of the dispute since nei- ther the MEBA nor the SIU were parties to the proceeding.4 Accordingly, we find there is reason- able cause to believe that Section 8(b)(4)(D) has been violated and the dispute is properly before the Board for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors. The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements The collective-bargaining agreements between the Employer and the MEBA and the SIU, respec- tively, contain jurisdictional provisions that cover the work in dispute. Likewise, Respondent's collec- tive-bargaining agreement with the SFPEA gener- ally covers maintenance work on container and re- lated equipment. Accordingly, since both contracts arguably cover the disputed work, we find that this factor is not relevant to a determination of this dis- pute. 4Local 130, Aluminum Workers International Union, AFL-CIO (The Amaconda Company Aluminum Division), 222 NLRB 809 (1976); Interna- tional Printing Pressmen and Assistants' Union of North America and Albany Printing Pressmen and Assistants' Union No. 23 (J. R. Condon Sons. Inc.), 148 NLRB 356 (1964). On May 31, 1979, in a proceeding pur- suant to secs. 23, art. XX, of the AFL-CIO constitution, involving the same unions and the same type of work as here (but pertaining to the Employer's Portsmouth. Virginia, facility). Impartial Umpire D.Q. Mills determined that the ILA violated sec. 2, art. XX, by claiming the crane maintenance work and disrupting the collective- bargaining relationship between the Employer and the SIU. The MEBA and the SIU argue that this determination favors an assignment of the disputed work here to em- ployees represented by their unions. An art. XX proceeding pertaining to the Employer's Port Everglades facility has been instituted, but no deter- mination had been made at the time of the 10(k) hearing. In any event such a determination would not dispose of the issue here because the Em- ployer is not a party to art. XX proceedings. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Employer's practice The record reveals that the Employer's standard practice has been to assign the disputed work to at least one MEBA employee and two SIU employ- ees. The Employer has followed this assignment of work at all its facilities across the country since the late 1960's, when the cranes used to load and unload vessels were moved from the ships to the shore. Accordingly, we find that the Employer's past practice favors awarding the disputed work to the employees represented by the MEBA and the SIU. 3. Employer preference The Employer has always used employees repre- sented by the MEBA and the SIU to perform the disputed work. It is satisfied with the results of its assignment and prefers that they continue to do this work. Thus, the Employer's preference favors an assignment of the disputed work to the employ- ees represented by the MEBA and the SIU. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that the employees represented by the MEBA and the SIU are entitled to perform the work in dispute, and shall therefore award the work in question to them.5 s Since there is no evidence that area or industry practice favors one group of employees over another, we do not rely on that factor in making our determination. Since there is no evidence that one group of employees is more qualified to do the work than the other, we do not rely on relative skills as a determinative factor. Since there is no evidence that the use of one group of employees is more efficient or economical than the use of the other, we do not rely on efficiency and economy of DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in the proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Sea-Land Services, Inc. (Atlan- tic Division), who are represented by District #1, Pacific Coast District, Marine Engineers Beneficial Association, AFL-CIO and Seafarers International Union of North America, Atlantic, Gulf Lakes and Inland Waters District, are entitled to perform the Paceco crane maintenance work at the Sea-Land Services, Inc., Port Everglades, Florida, facility. 2. International Longshoremen's Association; In- ternational Longshoremen's Association #1922; and International Longshoremen's Association #1526, are not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Sea-Land Services, Inc. (Atlantic Division), to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Long- shoremen's Association; International Longshore- men's Association #1922; and International Long- shoremen's Association #1526, shall notify the Re- gional Director for Region 12, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determina- tion. operation as a determinative factor. Finally, there are no joint board de- terminations that would affect our determination of this dispute.