Longshoremen's Association, Locals No. 1413-1465

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association and its Locals No. 1413-1465, AFL-CIO and Bridge Terminal, Inc. and Teamsters Union Local No. 59, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case -CD-602 September 30, 1980 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Bridge Terminal, Inc., herein called the Employer, alleging that International Longshoremen's Association (ILA) and its Locals No. 1413-1465, AFL-CIO (herein called the ILA), had violated Section 8(b)(4)(i) and (ii)(D) of the Act by engaging in certain proscribed activities with an object of forcing or requiring the Employ- er to assign certain work to its members rather than to employees allegedly represented by Team- sters Union Local No. 59, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Team- sters. Pursuant to notice, a hearing was held before Hearing Officer Don C. Firenze on July 30, 1980. The Employer and the ILA appeared and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and the ILA filed briefs. 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. The Board has considered the briefs and the entire record in this case, and hereby makes the following findings: 1. THE BUSINESS OF THE EMPI.OYER The parties stipulated, and we find, that the Em- ployer is a Rhode Island corporation engaged in the business of providing public warehousing serv- ices at Fish Island, New Bedford, Massachusetts, and that it annually derives gross revenues in excess of $50,000 from the provision of these serv- ices for commodities traveling in interstate com- merce and from the provision of these services to 252 NLRB No. 97 companies that are directly engaged in interstate commerce. Accordingly, we find that the Employ- er is an employer within the meaning of Section 2(2) of the Act, it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Interna- tional Longshoremen's Association and its Locals No. 1413-1465, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts of the Dispute The Employer operates a public storage ware- house on Fish Island in New Bedford, Massachu- setts. The warehouse is used primarily for the stor- age of frozen fish, which arrive at the Employer's dock by ship or truck. The Employer's warehouse employees are represented by the Teamsters. Prior to the onset of the present controversy, ships were unloaded at the Employer's dock by longshoremen who are members of Locals No. 1413-1465. The longshoremen were hired by steve- doring companies that were employed by agents of the ships. The Employer has never had a collec- tive-bargaining agreement with the ILA. The Em- ployer's warehouse employees, represented by the Teamsters, moved the fish from the dock to the warehouse. The longshoremen's conditions of employment are determined by the ILA national collective-bar- gaining agreement. This agreement requires that a crew of at least 16, plus a staff of up to 4 long- shoremen, be hired to unload each hatch of a ship. During 1979, the Employer asked the ILA Locals to reduce their manning requirements at Fish Island. The Locals declined, stating that they were powerless to deviate from the national agreement. The Teamsters collective-bargaining agreement with the Employer, covering warehouse employ- ees, expired on May 3, 1980. During negotiations for a new contract, the Employer proposed that it hire a new classification of employees, to be desig- nated as cargo handlers and added to the Team- sters unit. These cargo handlers would unload the ships and thus obviate the need to use stevedoring companies that hired longshoremen. The Employer expected to use fewer employees than were re- quired by the ILA, and thereby reduce costs at its Fish Island facilities. The Employer claims that the president of the Teamsters Local orally agreed to a contract which 694 LONGSHOREMEN'S ASSOCIATION, LOCALS NO. 1413-14654 would embody this proposal. However, the Team- sters has not signed the proposed contract. On May 8, 1980, the vessel Norcan arrived at Fish Island. In accordance with its proposed con- tract with the Teamsters, the Employer hired six new employees to unload the cargo. On that morn- ing, approximately 12 members of the ILA, includ- ing Shop Steward Jackie Tavares and Local Presi- dent Antonio DeCruz, formed a picket line on the Employer's premises. The pickets shouted obsceni- ties and threats at the new employees, and threw rocks and bottles at them. Warehouse employees refused to cross the picket line. On May 9, the pickets returned and continued to threaten and harass the new employees. This conduct caused them to cease unloading the vessel although the job was not complete. The Employer procured a temporary injunction against the ILA Locals on August 4, 1980, pending the instant proceedings. B. Work in Dispute The work in dispute consists of the unloading of cargo vessels at the docks of Bridge Terminal, Inc., located at Fish Island, New Bedford, Massachu- setts. C. Contentions of the Parties The Employer contends that the work in dispute should be awarded to its newly hired employees due to considerations of economy and efficiency of operations, and pursuant to the alleged collective- bargaining agreement with the Teamsters. The ILA contends that the work in dispute tra- ditionally has belonged to its members and that this practice should continue. The ILA also asserts that its members are better qualified than the newly hired employees to safely and effectively perform the work. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b)(4)(D) charge has arisen. However, before the Board pro- ceeds with a determination of the dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method, binding on all par- ties, for the voluntary adjustment of the dispute. On May 8, 1980, the Employer hired six employ- ees to unload the ship Norcan. On that day, about 12 members of the ILA, including a local president i According to the Finploer. the eamsters has not gi~sen a reason fior its failure to sign the cotntrIact The F.mployer has filed an 8Xb)(3) charge. Case I-CB-4858, n connection %ith this matter Thile Board has not yet rendered a dcisiol therconl and a shop steward, began to picket at the Em- ployer's premises. During May 8 and 9, the pickets frequently shouted to the new employees that the unloading work rightfully belonged to members of the ILA. and threatened them with physical harm if they continued. Additionally the pickets prevent- ed all delivery trucks from entering and leaving the area. In view of the conduct described above, we find that there is reasonable cause to believe that a vio- lation of Section 8(b)(4)(D) has occurred. 2 As there is no contention that an agreed-upon method for the voluntary adjustment of the dispute exists, we find that the dispute is properly before the Board for a determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to relevant factors.- The Board has held that its determination in a ju- risdictional dispute is an act of judgment based on commonsense and experience, reached by balanc- ing those factors involved in a particular case.4 The following factors are relevant in making the determination of the dispute before us: i. Certification and collective-bargaining agreements There are no orders or certifications of the Board awarding jurisdiction of the work in dispute to employees represented by either of the Unions involved in the present proceeding. The Employer contends that it has a contract with Teamsters Local No. 59 which covers the work in dispute.5 It bases this contention on an al- leged oral agreement with Teamsters representa- tives. However, as of the date of this Decision, it appears that the Teamsters have refused to sign the proposed contract, and, as previously noted, the Board has not yet ruled on the Employer's 8(b)(3) charge. Therefore, we find that the Employer cur- rently has no valid collective-bargaining agreement with Teamsters Local No. 59. 2 International Longshoremens Association. 4AFL-CIO. its affiliated Locals 799. 8j. 805 and 1066, and its Boston District Council (Coldwater Seafood Corporation). 237 NLRB 538 (1978) Sheet Metal Workers' Inter- notional .Asocation. Local Union No. 41. A.L-CIO (B & W Metak Com- panty Inc.). 231 NI.RB 122 (1977). :' .L R B s. Radio & lelevxsion Broadcast Engineeri Un,ion, Local 1212. International Brotherhood f Electrical Workert, AFL-CIO [Colurn- hia Broadcaing Stemni], 364 U.S 573 (19611. 4 International .Associaton of Mfachinists. Lodge No. 1743 .41L-CIO (J. A. Jones (;nructiln ( Compalny), 135 NLRB 1402 (1962) 5 As presiousl\S noted. the Employer's past contract \tith the Team- sters covered the Employer's Aarehouse employees. 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The ILA does not contend that it has a contract with the Employer. Accordingly, we find that this factor does not assist us in determining the merits of the dispute. 2. Area practice Members of the ILA have unloaded ships in New Bedford for the past 30 years, as employees of the local stevedoring companies. However, Richmond Viall, vice president of the Employer, testified that in Gloucester, a nearby, competitive port, ships are unloaded by members of the Amal- gamated Meatcutters Union, and in Winterport, Maine, by Workers Alliance No. 2. Since the record does not reveal any clear area practice, we find that area practice is not a factor favoring either party. 3. Economy and efficiency of operation The Employer testified that six to eight workers are required to unload a ship the size of the Norcan. In contrast, the ILA's national collective- bargaining agreement requires that at least 16 em- ployees plus a staff of 4 longshoremen unload each hatch of a ship. Moreover, by using the new employees, ships could be unloaded considerably faster than under the previous system, as the Employer expects its cargo handlers to work two 6-hour shifts, while ILA members work only one 8-hour shift per day. The Employer also asserts that assigning the work to the newly hired employees would allow for unified supervision of warehouse workers and cargo handlers. The Employer believes that this will significantly reduce conflicts between the two operations. For the above reasons, we conclude that this factor favors assignment of the disputed work to the Employer's newly hired employees. 4. Skills and safety The ILA contends that its members possess supe- rior ability in cargo handling, citing their extensive experience in operating stevedoring equipment and unloading ships. The ILA contends that, in order to safely transport cargo from the ship to the dock, considerable experience is required, especially among signalmen and crane operators. Specifically, ILA Locals 1413-1465 President Antonio DeCruz testified that a signalman should have 7-10 years experience and a crane operator should have great- er than 3 years' experience. He suggested that slight mistakes in packing, lifting, or positioning cargo could cause serious injuries or fatalities. However, no license or formal training is re- quired to operate stevedoring equipment. ILA Business Agent Julio Alves stated that operating a crane is "common sense .... like driving a car and everything else." In light of the foregoing, we hold that although the greater experience of its members favors an award to the ILA, the work is not highly skilled, and this factor does not preclude an award to the Employer's newly hired employees. 5. Employer preference The Employer hired the new employees to per- form the disputed work in order to reduce the costs of using its facilities and to increase efficien- cy. The record clearly indicates that the Employer prefers that the work be awarded to these employ- ees. This factor thus favors an award to the Em- ployer's newly hired employees. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that the Employer's newly hired employees are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's preference and economy and efficiency of oper- ation. The present determination is limited to the particular controversy which gave rise to this pro- ceeding. 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 hereby makes the following Determination of Dis- pute: 1. Unrepresented cargo handlers employed by Bridge Terminal, Inc., are entitled to perform the work of unloading ships at the Employer's Fish Island dock and warehouse in New Bedford, Mas- sachusetts.6 2. International Longshoremen's Association and its Locals No. 1413-1465, AFL-CIO, is not enti- tled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Bridge Terminal, Inc., to assign the disputed work to employees repre- sented by it. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Long- shoremen's Association and its Locals No. 1413- 1465, AFL-CIO, shall notify the Regional Director for Region 1, in writing, whether or not it will re- 6 Pending resolution of the Employer's 8(b)(3) charge, there is no valid contract with the Teamsters, and the newly hired employees remain un- represented. 696 LONGSHOREMEN'S ASSOCIATION, LOCALS NO. 1413-14654 frain 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 inconsist- ent with the above determination. 697