International Longshoremen's Association

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1294 313 After an investigation , the Regional Director , on February 1, 1954 , issued his report on objections , in which he found that the conduct of the Union did not materially interfere with the em- ployees' free choice in the election and recommended that the objections be overruled and the appropriate certification be issued. The Employer filed timely exceptions to the Regional Director ' s report. In its exceptions , the Employer protests the conclusions reached by the Regional Director that the conduct of Union or- ganizers , even if true as alleged , did not materially interfere with the free choice of employees; and that certain other con- duct was remote from the date of the election or the polling place and could not be considered to have affected materially the results of the election . Accordingly , the Employer urges that the Board set aside the election or direct a hearing on the objections. We have considered the objections to the elections , the Re- gional Director ' s report, and the Employer ' s exceptions thereto. In agreement with the Regional Director , we find that the objec- tions raise no substantial or material issues with respect to the conduct of the election , and we overrule them. Because the tally of ballots shows that the Petitioner received a majority of the valid votes cast , we shall certify the Petitioner as the bargaining representative of the employees in the appro- priate unit. [The Board certified The Amalgamated Clothing Workers of America , CIO, as the designated collective - bargaining repre- sentative of the employees in the unit found appropriate in the Decision and Direction of Election herein.] INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1294 (INDEPENDENT) and CARGILL, INC. Case No. 2-CD- 82. April 21, 1954 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10 (k) of the Act, which provides that " whenever it is charged that any person has en aged in an unfair labor practice within the meaning of section 8 (gb) (4 ) (D) of the Act, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . ." On December 31, 1953, Cargill, Inc., herein called Cargill, filed with the Regional Director for the Second Region a charge alleging that International Longshoremen ' s Association, Local 1294 (Independent), herein called the ILA, has engaged in and is engaging in certain activities proscribed by Section 8 (b) (4) (D) of the Act. 108 NLRB No. 71. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and provided for an appropriate hearing upon due notice to all parties. The hearing was held before Jack Davis, hearing officer, on February 3 and 4, 1954. All parties, including the Intervenor, American Federa- tion of Grain Millers, Local 219, AFL, herein called the AFL, appeared at the hearing and were afforded full opportunity to be heard , to examine and cross - examine witnesses , and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. No briefs were filed with the Board. Upon the entire record in the case, the Board makes the fol- lowing: FINDINGS OF FACT 1. The business of Cargill Cargill, Inc., a Delaware corporation, operates the largest single-unit grain elevator in the world at the Port of Albany, New York. This grain elevator receives shipments of grain, through the Great Lakes and the New York Barge Canal, valued in excess of $50,000,000 each year. The grain in turn is exported by Cargill to countries all over the world. The parties concede, and we find, that Cargill is engaged in commerce with- in the meaning of the Act. 2. The labor organizations involved The ILA and the AFL are labor organizations within the meaning of the Act. 3. The dispute A. The facts In 1946 Cargill's employees were organized by Local 1689, ILA-AFL. That Union had a continuing bargaining relationship with Cargill until December 1953 when, pursuant to a Board election (Case No. 2-RC-6327), Cargill's employees chose the AFL as their exclusive bargaining representative.' Thereafter, on December 22, 1953, the AFL entered into a collective-bar- gaining contract with Cargill. Both the certification and the con- tract covered the following unit: "All hourly rated employees en- gaged in receiving, storing, handling, and shipping of grain...." Cargill subcontracts the work of loading and unloading ships to several stevedore companies, one of which is the John W. 'The certification was issued to the American Federation of Grain Millers, AFL, which in turn granted a charter to its Cargill employees. This latter group became Local 219 and was permitted to intervene at the hearing. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION , LOCAL 1294 315 McGrath Corp. These firms have had collective- bargaining agreements with the ILA since 1933 and have employed members of that Union for all shipboard and dock work in connection with the loading and unloading of grain. The only disputed work herein involves the operation of winches and spouts by electrical controls on or near ships to be loaded with grain at Cargill' s grain elevators. When ships arrive they are loaded by the use of small and large spouts extended over the ships' holds. On the ship, the small spouts are customarily manipulated by the use of electrical controls ("buttons"). These controls are handled by Cargill's employees ("elevator men") who stand near the ship's hold in order to direct the pouring of grain. Except for these elevator men and Cargill's foreman who super- vises the entire loading operation, all other employees on the ship during the loading are ILA longshoremen. On the dock, the large spouts are raised and lowered by winches operated by Cargill's employees. Apparently, all other dock operations in connection with loading are handled by the ILA members. Both of the above work assignments to Cargill's employees have been the prevailing practice over the years. After Cargill's employees changed their union affiliation, the ILA, on December 29, 1953, demanded for its members the work tasks previously performed by Cargill's employees. This de- mand was addressed to representatives of the stevedore com- panies who, in turn, communicated the ILA' s position to Cargill. In fact, Cargill had, inOctober or November 1953, been directly informed by an ILA representative that the ILA no longer repre- sented its employees and that henceforth only ILA men would be allowed on the ships. No ship appeared at Cargill' s elevator until January 6, 1954. On that date a ship tied up to be loaded. Cargill assigned the loading operation to McGrath Corp. Moreover, Cargill, aware of prior ILA threats, instructed its elevator men to operate the controls for the small spouts from the dock, not from the ship as was the ordinary practice. When the longshoremen, em- ployees of McGrath, boarded the ship, they discovered that the electrical controls were not on the ship. After the loading began, some ILA officials conferred. One of them, William McGahay, came to the ship and told Cargill's employees to pass the con- trols to the ILA men on board ship "and that we would then go to work." McGahay further stated that when they refused to do so, the longshoremen ceased work. McGahay told Cargill's fore- man on the ship that "we can't have this" and instructed him to shut off the flow of grain. The foreman complied with that re- quest and work stopped for approximately 2 hours. During this 2-hour work stoppage, 2 conferences were held at Cargill's office. At the first, the ILA officials claimed the disputed work and threatened that no loading would take place unless the controls were passed to the longshoremen on the ship. Indeed, they informed Cargill that work on the ship had 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stopped. The ILA also complained that the operation of the con- trols from the dock was a hazard to longshoremen working on the ship . Cargill refused to reassign the work. At the second conference, however, withboth Unions present, a compromise agreement was effected by which the ILA was to operate the controls for the small spouts on board ship while Cargill's elevator men stood by in a supervisory capacity. At the same time, it was agreed that Cargill's employees were to continue to do the dockside workofoperatingthe winches which control the large spouts . Pursuant to this arrangement , the ship was loaded. This temporary arrangement has been continued pending a determination of the dispute by the Board. Both Unions still maintain their exclusive right to the work in question. B. Contentions of the parties It was charged by Cargill that the ILA induced and encouraged the employees of McGrath and another stevedore company to engage in a strike with an object of forcing or requiring Cargill to assign the disputed work to members of the ILA rather than to members of the AFL, who are employed by Cargill. The ILA maintains that its conduct, especially the objective thereof, does not fall within Section 8 (b) (4) (D)'s proscription; that its contract with the stevedore companies entitles it to an assignment of the work; that it is the practice in the industry for all shiploading work to be done by its members, longshoremen. The AFL maintains that the disputed work traditionally be- longs to Cargill's employees; and that those employees are represented by it under a contract which requires Cargill to assign that work to the AFL. C. Applicability of the Statute The charge, which was duly investigated by the Regional Di- rector, alleges a violation of Section 8 (b) (4) (D) of the Act, and the Regional Director was satisfied on the basis of his investi- gation that a violation of the section had been committed. Before we may proceedwithadeterminationofa dispute pur- suant to Section 10 (k) of the Act, we must be satisfied that reasonable cause exists to believe that Section 8 (b) (4) (D) of the Act has been violated.' The evidence set forth above shows that the ILA actually engaged in the January 6 strike.' Further, the ILA conceded, through McGahay, that its actions had a dual purpose. On the one hand, the ILA claimed the disputed work for its members and addressed that claim directly to Cargill; on the other hand, the ILA maintained that the longshoremen were en- dangered by operation of the controls fromthe dock. Even con- 2 Local 26, International Fur & Leather Workers Union (Winslow Bros.), 90 NLRB 1379; Truck Drivers and Chauffeurs Union, Local 705 (Direct Transit Lines), 92 NLRB 1715. 3 See, e. g., Los Angeles Building & Construction Trades Council et al (Standard Oil Co.), 105 NLRB 868, and cases cited therein footnote 22. INTERNATIONAL LONGSHOREMEN 'S ASSOCIATION , LOCAL 1294 317 ceding that the latter object was lawful and that the ILA strike was motivated in part thereby, it seems apparent that the stop- page was also intended to further the former object, namely, to force Cargill to assign the disputed work to members of the ILA rather than to its own employees who were members of the AFL --an activity proscribed by Section 8 (b) (4) (D).4 In view of the foregoing , we conclude that there is reasonable cause to believe that the ILA has engaged in conduct violative of Section 8 (b) (4) (D). We therefore find that the dispute in the present proceeding is properly before us for determination under Section 10 (k). D. Merits of the dispute At the time the ILA sought and demanded of Cargill that the disputed work be given to longshoremen, members of the ILA, Cargill had assigned such work to its own employees, members of the AFL. The dispute was therefore one over an employer's assignment to employees in one labor organization rather than to employees in another labor organization. It is now well established that an employer is free to make such assignments free of strike pressure by a labor organi- zation, "unless such employer is failing to conform to an order or certification of the Board determining the bargaining repre- sentative for employees performing such work."6 No claim is made, nor does it appear, that Cargill' s assignment of the dis- puted work to its own employees is in contravention of any certification or Board order. Moreover, it is clear from the record that the ILA has no immediate or derivative rights under any existing contract upon which it could predicate any lawful claim to the work in dispute. The ILA, however, maintains that by reason of its contract with the stevedore companies , it is entitled to the assignment of the work in dispute. In this connection, we note that Cargill presently employs no ILA members. The ILA's contract is with McGrath and other stevedore companies, not with Cargill. Indeed, for a period of over 20 years, Cargill has assigned the disputed work to its own employees. The remainder of the loading work has been contracted to the stevedore firms. There being no privity of contract between the ILA and Cargill, the former's defense is patently without merit.6 This being so, the further ILA position concerning practice in the industry becomes immaterial.' 4 The language of that section refers to "an object," and where multiple objects are sought by a union, the presence among them of but one proscribed object is sufficient to bring the union's conduct within the statutory language. 5Pile Drivers, Bridge, Wharf and Dock Builders, United Brotherhood of Carpenters & Joiners of America, Local Union No. 34, AFL (Klamath Cedar Co.), 105 NLRB 562; Inter- national Longshoremen's and Warehousemen's Union, Local No. 16, CIO (Juneau Spruce Corp.), 82 NLRB 650. 6See, e.g., Los Angeles Building & Construction Trades Council et al. (Westinghouse Electric Co.), 83 NLRB 477, 481-2. 7 Ibid. 3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find, accordingly, that the ILA was not and is not lawfully entitled to force or require Cargill to assign the work of operating winches and spouts by electrical controls in the loading of grain at Cargill's grain elevator, Port of Albany, New York, to members of the ILA rather than to employees of Cargill who are members of the AFL. However, we are not, by this action, to be regarded as "assigning" the work in question to the AFL.' DETERMINATION OF DISPUTE Upon the basis of the foregoing findings of fact, and upon the entire record in. the case , the Board makes the following deter- mination of dispute, pursuant to Section 10 (k) of the Act: 1. International Longshoremen's Association, Local 1294 (Independent) is not and. has not been lawfully entitled to force or require Cargill, Inc., to assign the work of operating the winches and spouts by electrical controls in the loading of grain at Cargill's grain elevators at the Port of Albany, New York, to members of the ILA rather than to employees assigned by Cargill to perform such work. 2. Within ten (10) days from the date of this Decision and Determination of Dispute, the Respondent (ILA) shall notifythe Regional Director for the Second Region in writing as to what steps the Respondent has taken to comply with the terms of this Decision and Determination of Dispute. Member Beeson took no part in the consideration of the above Decision and Determination of Dispute. 8Ibid. DENVER BUILDING AND CONSTRUCTION TRADES COUNCIL: INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, LOCAL UNION NO. 24, AFL; BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL UNION NO. 79, AFL; UNITED ASSOCIATION OF JOURNEYMEN AND APPREN- TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION NO. 208, AFL; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION NO. 1351, AFL; INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL UNION NO. 720, AFL; INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 9, AFL; UNITED ASSO- CIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE"UNITED STATES AND CANADA, LOCAL UNION NO. 3, AFL, and JOHN R. PEARSE. Case No. 30-CC-20. April 21, 1954 108 NLRB No. 66.