International Longshoremen, Local 54

INTERNATIONAL LONGSHOREMEN, LOCAL 54 775 International Longshoremen and Warehousemen's Union Local No. 54 and Hugo Neu & Sons In- ternational Sales Corporation and the Learner Company and P & M Trucking and General Teamsters Local No. 439, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case 32- CD-37 March 28, 1980 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JENKINS, PENELLO, AND TRUESDALE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by The Learner Company and Hugo Neu & Sons International Sales Corporation, herein called, respectively, Learner and Neu or, collectively, the Employer, alleging that Interna- tional Longshoremen and Warehousemen's Union Local No. 54, herein called Local54, 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 General Teamsters Local No. 439, a/w In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Local 439. Pursuant to notice, a hearing was held before Hearing Officer John D. Meakin on November 20 and December 12, 1979. Local 54, Local 439, Neu, and Learner appeared and were afforded full op- portunity to be heard, to examine and cross-exam- ine witnesses, and to adduce evidence 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. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that The Learner Company, wholly owned by Hugo Neu & Sons, Inc., is a California corporation with princi- pal offices in Oakland, California, with a scrap P & M Trucking, herein called P & M, was served with a copy of the notice of hearing, but did not appear at the hearing. 248 NLRB No. 103 yard at 2711 Navy Drive, Stockton, California, the location of the dispute discussed herein. Learner is engaged in the nonretail sale of scrap metal. During a recent 12-month period Learner sold and delivered goods to Neu, which goods were valued in excess of $50,000 and were, in turn, shipped di- rectly from Stockton to customers located overseas or outside the United States. Hugo Neu & Sons In- ternational Sales Corporation is located at 380 Madison Avenue, New York, New York, and is en- gaged in the export of scrap metal. It is wholly owned by Hugo Neu & Sons, Inc. During a recent 12-month period Neu sold and delivered goods valued in excess of $50,000 directly located outside the State of California and/or the continental United States. We find that Learner and Neu are both engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will ef- fectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATIONS INVOLVED We find that Local 54 and Local 439 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In 1971, Learner began shipping scrap metal to overseas customers from the Port of Stockton. Learner's yard is located about 1-1/2 miles from the dock. From 1971 until 1979 Learner used a vessel (originally named the "Suan" and later the "Cosmos Gienah") equipped with a magnetic, on- board crane. In 1971 Learner entered into a con- tract with Local 54 covering employees who hauled the scrap metal by truck from the Learner yard to the dock. The magnetic, onboard crane would unload the scrap from the truck and dump it into the ship's hold. This mode of operation contin- ued for only five shifts. 2 Approximately 4-6 ships are loaded each year. It takes several days to load each ship. From 1972 until 1979 railroad cars rather than trucks were used to transport the scrap from the yard to the dock. Again, the onboard magnetic crane was used to unload the scrap and deposit it in the hold of the ship. The employees who operat- ed the railroad cars were represented by several railway employees' unions. Local 54 did not pro- test this change in method of hauling the scrap in 2 A witness testifying on behalf of Local 54 explained that a strike in- volving the "International" union resulted in termination of the trucking operation. __ 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1972 or claim the work of hauling the scrap from yard to dock. In 1977, anticipating the loss of the use of the vessel equipped with an onboard crane, the Em- ployer began exploring alternative means of trans- porting and loading the scrap. These options in- cluded the possible leasing of storage space at the dock site and the loading of the ship by means of a conveyor belt. (This was not the method finally chosen.) On October 23, 1978, Jack Hecht, execu- tive vice president of Learner met with representa- tives of Local 54 to discuss future loading oper- ations at the Stockton dock. Hecht explained that the charter on the ship would soon expire and that the Employer was considering the use of the con- veyor device described above, with the scrap being hauled from the yard to the dock by truck. Local 54 representatives stated at that time that all the work was Local 54 work and that Local 5i4 drivers would have to drive the trucks. No agreement was reached at this time. On July 31, 1979, Hecht and Local 54 represen- tative Pete Fuller had a telephone conversation. In response to a comment made to Hecht by a third party, Hecht explained to Fuller that Learner never agreed that employees represented by Local 54 would do all the trucking between the yard and the dock. Fuller referred to the 1971 agreement, 3 and stated that if Local 54 workers did not drive the trucks, none of Hecht's ships would be loaded. On October 9, 1979, Fuller telephoned Employer representative Charles Schupack and asked why Schupack wanted to have a P & M truck go to the Port of Stockton. Schupack explained that he wanted to use the truck to check the capacity of the steel pan as soon as possible because a ship would soon arrive to pick up a load of scrap metal. Fuller said that Local 439 drivers could pick up the load of scrap as long as they dumped the scrap on the ground and not in the pan, that employees represented by Local 54 would have to move the scrap from the ground into the pan. When Schu- pack asked what would happen if the Local 439 driver did dump the load into the pan, Fuller ex- plained, "We would not load the ship, and we would try to close down the yard." On October 19, 1979, Hecht gave written notice that Learner was terminating the 1971 agreement, in accord with the provisions of that agreement. On October 22, 1979, Hecht met with Fuller and other Local 54 representatives. By this time a deci- sion had been made by the Employer to haul the scrap from the yard to the dock by end dump trucks. At the dock, the trucks back into a large J Hugo Neu & Sons, Inc., purchased Learner in 1976. Hecht stated he was unaware of the 1971 agreement until Fuller mentioned it. metal pan approximately 25 feet by 12 feet by 6 feet high and dump the load of scrap into the pan as the truck drives out. The loaded pan is hoisted over the hold of the ship by a crane positioned on the dock and the scrap is then dumped into the hold by tipping the pan. At the meeting Hecht ex- plained that neither Learner nor Neu owned any trucks suitable for the job, that Neu had made an agreement with P & M to transport the scrap from the yard to the dock, and that P & M had a con- tract with Local 439. Fuller responded by saying that the ship would not get loaded if the Local 439 drivers dumped the scrap into the pan. Fuller men- tioned that another company, T & T Trucking, had trucks driven by longshoremen. After Hecht ex- plained that these were bottom-dump trucks, the parties agreed that they would not be suitable for the operation. Fuller then proposed that the Em- ployer hire "ghost drivers," who would be repre- sented by Local 54, who would ride in the truck driven by a P & M employee or simply be carried on the payroll. Hecht rejected the proposal as une- conomical. Fuller stated, "We won't work the ship." B. The Work in Dispute The work in dispute involves the transportation of scrap metal from Learner's yard in Stockton, California, to dockside at the Port of Stockton in Stockton, California. The work of loading the ship is not in dispute. C. The Contentions of the Parties Learner and Neu contend that the Employer's preference, efficiency and economy of operation, area and industry practice, the collective bargain- ing between Local 439 and P & M, and the fact that, unlike P & M, neither Learner nor Neu own the necessary equipment to haul the scrap, favor an award of the work to employees represented by Local 439. Local 439 argues that the work should be award- ed to employees whom it represents. Local 439 contends that the history of the work assignment, economy and efficiency of operation, the collec- tive-bargaining agreement, and area and industry practice, favor such an assignment of the work in dispute. Local 54, however, contends that no jurisdiction- al dispute exists and that the notice of hearing should be quashed. 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 INTERNATIONAL LONGSHOREMEN, LOCAL 54 777 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. On the basis of the entire record, we con- clude that the parties have not agreed upon a method for the voluntary adjustment of the dis- pute. Local 54 contends that there is no reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred inasmuch as the work had previously been performed by employees represent- ed by Local 54 and that any threats to take action were part of Local 54's attempt to preserve its work. Local 54 moves that the notice of hearing be quashed. We find no merit to this contention and deny the motion. Employees represented by Local 54 performed the work of hauling the scrap from yard to yard to dock for a brief period of time in 1971. Shortly thereafter, the means for moving the scrap was changed from truck to rail, and the haul- ing work was performed by railway employees represented by another labor organization. The change was made without protest from Local 54. Employees represented by Local 54 have not per- formed the work in dispute since 1971. We find the current threats to disrupt the Employer's oper- ations too remote in time to constitute a belated at- tempt to retrieve work once performed by Local 54 members.4 Accordingly, we find there is reason- able cause to believe that a violation of Section 8(b)(4)(D) has occurred and that this 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.5 The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience reached by balancing those factors involved in a particular case.6 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements The Learner Company and Local 54 entered into a collective-bargaining agreement on March 31, 1971. The agreement provided, inter alia, that Local 54 members would perform all interport transfer work from the scrap metal plant to the 4 International Union of Operating ngineers. Local Union No. 12 (.4so- ciazed Concrete Productsr Inc j 224 NLRB 1069 (197h) s L.R.B. Radio & Tllevision Broadcast Engineers nion, Local 1212 International Brotherhoiod iif Electrical rorkers. .4FL-(CI [Co lurn- bia Broadcasting Svtrtin]. 34 LUS 573 (1961h) s International .4sroiatlon of .M1achonisit. Lodge No. 174 .A-I-. (1 0 J .4. Jones (Conirructon ornpani). 135 NLRH 14()2 (19h2) dock. However, the contractor also provided that either party could terminate the agreement upon 60 days' notice. Such notice was given by Learner on October 19, 1979; that collective-bargaining agree- ment is no longer in effect. There is a collective-bargaining agreement cur- rently in effect between P & M and Local 439 which covers the work in dispute. This collective- bargaining agreement favors the award of the work to employees represented by Local 439. 2. Economy and efficiency of operation Prior to its decision to contract with P & M to haul the scrap, the Employer investigated a variety of means for transporting the scrap from the yard to dockside. Learner and Neu determined that it would be uneconomical to buy the heavy duty trucks used to haul the scrap inasmuch as the trucks, costing approximately $70,000 each, would be used about 42 days of each year. There are no suitable trucks for rent or lease in the area; P & M supplies the trucks with drivers at a flat hourly rate. Local 54, during the course of the dispute, suggest- ed that either employees represented by Local 54 be hired as "ghost drivers" or that the Local 439 drivers dump the scrap onto the ground at the dock rather than into the pan. Either alternative was shown at the hearing to be highly uneconomi- cal. There are no employers in the area, with the necessary equipment, who have collective-bar- gainig agreements with Local 54. Thus, economy and efficiency of operation favor the award of the work to employees represented by Local 439. 3. Employer preference The Employer's previous use of rail as a means of transporting the scrap from yard to dock is no longer an option. After considering the various al- ternatives, the Employer decided to use P & M trucks driven by employees represented by Local 439. Thus, the Employer's preference favors an award of work to employees represented by Local 439. 4. Area practice Local 439 has a large number of collective-bar- gaining agreements with employers in the area to perform the work of hauling materials by truck over public roads, including carrying materials into the Port of Stockton. Except for the brief period of time in 1971 when employees represented by Local 54 trucked the scrap from the yard to the dock, employees represented by Local 54 have never driven trucks over public roads into the Port of Stockton for any employer. The area practice 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favors an award of the work to employees repre- sented by Local 439. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees who are represented by Gen- eral Teamsters Local No. 439, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America are entitled to perform the work in dispute. We reach this con- clusion relying on the assignment of the disputed work to P & M employees represented by Local 439; the fact that this practice is consistent with the area practice; the efficiency and economy of oper- ations which result from such assignment; and the existence of a collective-bargaining agreement be- tween Local 439 and P & M. In making this deter- mination, we are awarding the work in question to employees who are represented by Local 439, but not to that Union or its members. The present de- termination is limited to the particular controversy which gave rise to this proceeding. 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 this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of P & M Trucking who are repre- sented by General Teamsters Local No. 439, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America are entitled to perform the transportation by truck of scrap metal from Learner's Stockton, California, yard to dockside at the Port of Stockton in Stock- ton, California. 2. International Longshoremen and Warehouse- men's Union Local No. 54 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Hugo Neu & Sons International Sales Corporation or The Learner Company 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 and Warehousemen's Union Local No. 54 shall notify the Regional Director for Region 32, in writing, whether or not it will refrain from forcing or requiring the Employer, by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination.