Longshoremen's Local 62

LOCAL 62, INTERNATIONAL LONGSHOREMEN'S UNION Local 62, International Longshoremen's and Ware- housemen's Union and Chevron U.S.A., Inc. and Puget Sound Tug and Barge Company and Inland Boatmen's Union of the Pacific, District Union, Seafarers' International Union of North America, AFL-CIO,' Party in Interest. Cases 19-CD-283 and 19-CD-287 March 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on October 11, 1977, in Case 19-CD-283 by Chevron U.S.A., Inc. (herein called Chevron), and a charge filed on November 10, 1977, in Case 19-CD-287 by Puget Sound Tug and Barge Company (herein called Puget Sound), and duly served on Local 62, International Longshoremen's and Warehousemen's Union (herein called the Re- spondent or Local 62), the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 19, issued an order consolidating cases, consolidated complaint, and notice of hearing on September 19, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, order consolidating cases, consolidated complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the con- solidated complaint with proposed amendments al- leges in substance that Respondent has violated Sec- tion 8(b)(4XD) of the Act by picketing the Chevron dock at Ketchikan, Alaska, from about October 6, 1977, until about October 13, 1977, with an object of forcing or requiring Chevron or Puget Sound or Southeast Stevedoring Company (herein called Southeast) or United Transportation Company (herein called United), or any of them, to assign to employees represented by Respondent the work of "shoreside tieing and untieing of tug-drawn barges operated by Puget Sound at the Chevron dock in Ketchikan, Alaska," notwithstanding that neither Chevron, nor Puget Sound, nor Southeast, nor United, nor any of them, was at the time failing to conform to an order of certification of the Board de- termining the bargaining representative for the em- I General Counsel's motion to correct name of Party in Interest is hereby granted. ployees performing the work. The consolidated com- plaint further alleges that Respondent failed and refused to abide by the Board's Decision and Deter- mination of Dispute2 in the underlying 10(k) proceed- ing which awarded the disputed work to employees represented by Inland Boatmen's Union of the Pa- cific, District Union, Seafarers' International Union of North America, AFL-CIO (herein called IBU), and has continued to demand that Chevron, or Puget Sound, or Southeast, or United, or any of them, as- sign the disputed work to employees who are repre- sented by Respondent. Thereafter, Respondent filed an answer admitting in part and denying in part the allegations of the consolidated complaint, submitting a defense, and requesting that the consolidated com- plaint be dismissed. On November 3, 1978, counsel for the General Counsel filed with the Board a "Motion to Transfer and Continue Cases Before the Board, for Summary Judgment, to Correct Name of Party in Interest, and to Amend Consolidated Complaint," with appendices attached. In his motion, the General Counsel requests that the Board take notice of all relevant facts and documents in the underlying 10(k) record in the pro- ceedings, and moves that the Board correct its refer- ences to the Party in Interest in the proceedings, to amend the consolidated complaint in certain respects, and to strike certain denials in Respondent's answer. General Counsel submits, in effect, that Respondent in its answer seeks to relitigate the 10(k) issues which were determined by the Board, that the Respondent has failed and refused to comply with the Board's Decision and Determination of Dispute, and that fail- ure to comply with said Decision under the circum- stances constitutes a continuing violation of Section 8(bX4)(D) of the Act. General Counsel further re- quests that the motion be granted and that the Board issue a Decision and Order striking as frivolous the denials in Respondent's answer, containing findings of fact consistent with the allegations of the consoli- dated complaint, and containing conclusions of law that Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(bX4XD) of the Act and provisions for appropriate remedial relief. On November 6, 1978, Respondent filed a reply to the General Counsel's motion wherein Respondent admits that the correct name of the Party in Interest is as it appears in the motion; does not specifically oppose the motion to amend the consolidated com- plaint; denies that it failed to specifically deny certain allegations of the consolidated complaint; disputes General Counsel's characterization of certain of its denials of allegations of the consolidated complaint as 2 Local 62. International Longshoremen's and Warehousemen's Union (Chevron U.S.A.. Inc.), 237 NLRB 835 (1978). 241 NLRB No. 26 205 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "frivolous"; moves that certain paragraphs of Gen- eral Counsel's motion be stricken; alleges that the De- cision and Determination of Dispute issued by the Board is contrary to the facts and the law; and affir- matively seeks review by the Board of the 10(k) deter- mination. On November 28, 1978, the Board issued an order transferring proceedings to the Board and a Notice To Show Cause why the General Counsel's motion should not be granted. On December 4, 1978, Re- spondent filed a response to Notice To Show Cause, stating that its opposition to General Counsel's mo- tion is set forth in its November 6, 1978, reply. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Review of all the records, including those of the underlying 10(k) proceeding, indicates that a hearing was held November 21 and 22, 1977, pursuant to Sec- tion 10(k) of the Act. On August 24, 1978, the Board issued a Decision and Determination of Dispute find- ing, inter alia, that there was a jurisdictional dispute between Respondent and IBU, and that there was reasonable cause to believe that Respondent had sought to resolve the dispute by means proscribed by Section 8(b)(4)(D) of the Act. In pertinent part, the Board awarded the disputed work of performing the shoreside tieing and untieing of tug-drawn barges op- erated by Puget Sound at the Chevron dock in Ketchikan, Alaska, to employees represented by IBU, and found that Respondent was not entitled to secure such work through means proscribed by Section 8(b)(4)(D) of the Act. The Board further ordered Re- spondent to notify the Regional Director, in writing, within 10 days, whether or not it would comply with the award. Not having been so notified, the Regional Director issued the instant consolidated complaint. In its answer and in its reply to General Counsel's motion, Respondent contends, in substance, that the Decision and Determination of Dispute is contrary to the facts and the law and that the law is correctly stated in the dissenting opinion of Chairman Fanning in that Decision. Respondent further stated that it seeks review by the Board of the 10(k) determination in the light of the entire record. The facts of this case were not in dispute in the 10(k) proceeding and close examination of Respon- dent's answer reveals that there is no real issue of fact at this stage of the proceeding, either. In the Decision and Determination of Dispute the Board found rea- sonable cause to believe that a jurisdictional dispute existed and that Section 8(b)(4)(D) of the Act had been violated. Upon review of the entire record in this proceeding, and for the reasons set forth in the Deci- sion and Determination of Dispute, we do not accept Respondent's position that the facts herein do not present a jurisdictional dispute on the ground that the picketing had been undertaken to preserve work which had previously been performed by employees it represented. We find, on the basis of the undisputed facts herein, that Respondent's contentions in opposi- tion to this motion are without merit. We further find that Respondent has engaged in conduct proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act, and has continued to engage in such conduct by not comply- ing with the Board's 10(k) award. Accordingly, we grant the General Counsel's Motion for Summary Judgment.3 Upon the entire record in this proceeding, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS Chevron U.S.A., Inc.. is now, and has been at all times material hereto, a California corporation with offices and places of business in California and Alaska, and it is engaged in the exploration for and production and marketing of petroleum products within several States of the United States. During a recent representative 12-month period, Chevron, in the course and conduct of its business operations, re- ceived or caused to be sent across state lines goods and services valued in excess of $50,000. Puget Sound Tug and Barge Company is now, and has been at all times material hereto, a Washington corporation with offices and places of business in Washington and Alaska, where it is engaged in the business of transporting goods by tug and barge be- tween the State of Washington and other States, in- cluding Alaska. During a recent representative 12- month period, Puget Sound, in the course and con- duct of its business operations, received in excess of $50,000 in revenues from providing its aforemen- tioned interstate transportation services. We find, on the basis of the foregoing, that Chev- ron and Puget Sound are, and have been at all times material hereto, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. General Counsel's motion to amend the consolidated complaint is hereby granted. General Counsel's motion to strike certain of Respondent's denials in its answer as frivolous is hereby denied. Respondent's motion that certain paragraphs of General Counsel's motion be stricken is hereby denied. 206 LOCAL 62, INTERNATIONAL LONGSHOREMEN'S UNION II. LABOR ORGANIZATIONS INVOLVED Local 62, International Longshoremen's and Ware- housemen's Union, and Inland and Boatmen's Union of the Pacific, District Union, Seafarers' International Union of North America, AFL-CIO, are labor or- ganizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Facts of the Dispute Chevron operates a bulk petroleum plant in Ketchikan, Alaska, where various types of petroleum products are received, stored, and distributed. The Chevron plant in Ketchikan has a large dock, an of- fice, and petroleum storage tanks. Puget Sound is a wholly owned subsidiary of Crowley Maritime Cor- poration and is engaged in transporting goods by tug and barge. United Transportation Company, another Crowley subsidiary, owns and operates barges which carry bulk products. Prior to September 1977, Chevron used its own self-propelled tankers to deliver bulk petroleum prod- ucts to the Chevron plant in Ketchikan from refiner- ies in California and Nikiski, Alaska. During this pe- riod, when the self-propelled tankers called at the Chevron dock, Southeast was notified and sent long- shoremen represented by Local 62 to tie up the ship by handling the shoreside lines. The Local 62 long- shoremen performed similar duties in untieing the tankers. There was a shift in Chevron operations in Septem- ber 1977. Chevron and Puget Sound entered into an agreement which provided that Chevron's petroleum products would be hauled by tug and barge, rather than by tanker. The barge used in accord with the agreement belonged to United, and the tug belonged to Puget Sound. On September 22, 1977, the tug and barge arrived in Ketchikan at the Chevron dock. At that time, Southeast received a request for longshore- men for shoreside linehandling duties. Employees represented by Local 62 were sent and assisted in tieing up the barge. The next trip of the tug and barge was made on October 6, 1977. Prior to that time, Chevron and Pu- get Sound informed Local 62 and Southeast that the services of the longshoremen would no longer be needed for the shoreside linehandling. Instead, the tieing and untieing of the barge would be done by members of tug crew, who were represented by IBU. On October 6, 1977, Local 62 engaged in picketing at the Chevron dock for the purpose of forcing Chevron, or Puget Sound, or United, or Southeast, or any of them, to assign to employees represented by Local 62 the handling of the shoreside lines involved in the mooring and unmooring of the barge, which work had been assigned to and was being performed by employee crew members of the tug and barge. The picketing continued until approximately October 13, 1977. B. The Determination of Dispute On August 24, 1978, the Board issued its 10(k) award, assigning the work of performing the shore- side tieing and untieing of tug-drawn barges operated by Puget Sound at the Chevron dock located at Ketchikan, Alaska, to employees represented by IBU. The Board also found, inter alia, that Local 62 was not entitled to force or require Chevron or Puget Sound to assign such work to employees represented by Local 62 by means proscribed by Section 8(b)(4)(D) of the Act. C. Respondent's Refusal To Comply Since on or about August 24, 1978, Respondent has failed and refused to comply with the above-men- tioned Decision and Determination of Dispute, has failed and refused to notify the Regional Director for Region 19 that Respondent will comply with the Board's Decision and Determination of Dispute, al- though Respondent has been afforded a fair opportu- nity to do so, and has continued to demand the dis- puted work. On the basis of the foregoing and the entire record in this proceeding, we find that Respondent, by refus- ing to comply with the Decision and Determination of Dispute and by continuing to demand the disputed work, violated Section 8(b)(4)(i) and (ii)(D) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the opera- tions described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act, we shall order that Respondent cease and desist therefrom and take certain affirma- 207 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive action designed to effectuate the policies of the Act. The Board, on the basis of the foregoing facts, and the entire record, makes the following: CONCLUSIONS OF LAW 1. Chevron U.S.A., Inc., and Puget Sound Tug and Barge Company are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 62, International Longshoremen's and Warehousemen's Union, and Inland Boatmen's Union of the Pacific, District Union, Seafarers' Inter- national Union of North America, AFL-CIO, are la- bor organizations within the meaning of Section 2(5) of the Act. 3. Respondent has violated and is violating Section 8(b)(4)(i) and (ii)(D) of the Act by failing and refusing to comply with the Board's Decision and Determina- tion of Dispute and by continuing to demand the dis- puted work, thereby threatening, coercing, and re- straining Chevron, Puget Sound, and other persons engaged in commerce or in an industry affecting com- merce and inducing and encouraging individuals em- ployed by them to cease performing the disputed work with an object of forcing or requiring Chevron, Puget Sound, Southeast, United, or any of them to assign the work of shoreside tieing and untieing of tug-drawn barges operated by Puget Sound at the Chevron dock in Ketchikan, Alaska, to employees represented by Respondent by means proscribed by Section 8(b)(4)(D) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Local 62, International Longshoremen's and Warehouse- men's Union, Ketchikan, Alaska, its officers, agents, and representatives, shall: 1. Cease and desist from refusing to comply with the Board's Decision and Determination of Dispute, and from picketing or in any other manner threaten- ing, coercing, or restraining Chevron U.S.A., Inc., Pu- get Sound Tug and Barge Company, or any other person engaged in commerce or in an industry affect- ing commerce, and from inducing and encouraging any individual employed by them to cease performing the disputed work, where an object thereof is to force or require Chevron U.S.A., Inc., Puget Sound Tug and Barge Company, Southeast Stevedoring Com- pany, United Transportation Company, or any other employer to assign the work of the shoreside tieing and untieing of tug-drawn barges operated by Puget Sound Tug and Barge Company at the Chevron U.S.A., Inc., dock in Ketchikan, Alaska, to employ- ees represented by Respondent rather than to em- ployees represented by Inland Boatmen's Union of the Pacific, District Union, Seafarers' International Union of North America, AFL-CIO. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its business offices and meeting hall copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Re- gional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 19 with signed copies of such notices for posting by Chevron U.S.A., Inc., and Puget Sound Tug and Barge Company, if they are willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. CHAIRMAN FANNING, dissenting: I dissent from the Board's decision to grant the General Counsel's Motion for Summary Judgment for the reasons stated in my dissenting opinion in the underlying 10(k) proceeding, 237 NLRB 835 (1978). In my opinion the facts do not present a jurisdictional dispute. I In the event that this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to comply with the Board's Decision and Determination of Dispute, or picket or in any other manner threaten, co- erce, or restrain Chevron U.S.A., Inc.. Puget Sound Tug and Barge Company, or any other person engaged in commerce or in an industry 208 LOCAL 62, INTERNATIONAL LONGSHOREMEN'S UNION affecting commerce, or induce or encourage any individual employed by them to cease perform- ing the disputed work, where an object thereof is to force or require Chevron U.S.A., Inc., Puget Sound Tug and Barge Company, Southeast Stevedoring Company, United Transportation Company, or any other employer, to assign the work of the shoreside tieing and untieing of tug- drawn barges operated by Puget Sound Tug and Barge Company at the Chevron U.S.A., Inc., dock in Ketchikan, Alaska, to employees we rep- resent, rather than to employees who are repre- sented by Inland Boatmen's Union of the Pacific, District Union, Seafarers' International Union of North America, AFL-CIO. LOCAL 62, INTERNATIONAL LONGSHORE- MEN'S AND WAREHOUSEMEN'S UNION 209