Longshoremen's Local 1037

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 1037, International Longshoremen's Association, AFL-CIO and ADM Grain Company, a subsidiary of Archer-Daniels-Midland Company. Case 18-CC 709 March 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEII.O Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 18, issued a complaint and notice of hearing, dated May 25, 1978, against Local Union No. 1037, International Longshoremen's Association, AFL-CIO, hereinafter referred to as Respondent. The complaint alleged that Respondent has engaged in certain unfair labor practices affecting commerce within the meaning of Sections 8(b)(4)(i) and (ii)(B) and 2(6) and (7) of the National Labor Relations Act. as amended. Copies of the charges and complaint and notice of hearing were duly served on the parties. Re- spondent filed an answer to the complaint, denying commission of any unfair labor practices, raising cer- tain affirmative defenses, and requesting that the complaint be dismissed. Thereafter, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to itself for findings of fact, con- clusions of law, and order. The parties stipulated that they waived a hearing before, and the making of find- ings of fact and conclusions of law by, an Administra- tive Law Judge, and the issuance of an Administra- tive Law Judge's Decision, and that no oral testimony was necessary or desired by any of the parties. The parties also agreed that the charges, the complaint and notice of hearing, and the stipulation of facts, including the exhibits attached thereto, constitute the entire record in this case. They further agreed that, because this case arises out of the same factual con- text as Local Union No. 1037, International Long- shoremeen's Association, AFL-CIO (ADM Grain Com- pany, a subsidiat of Archer-Daniels-Midland Conzpan), 237 NLRB 1119 (1978), the record in that case is to be made part of the record in the instant proceeding. On November 13, 1978, the Board issued its order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Coun- sel, the Charging Party, and Respondent filed briefs in support of their positions. 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 considered the stipulation, includ- ing the exhibits, the briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Archer-Daniels-Midland Company, a Delaware corporation, owns and operates ADM Grain Com- pany (hereinafter referred to as ADM), which is en- gaged in the receipt, storage, and shipment of grain at its Superior, Wisconsin, elevator. During the year ending December 31, 1977, a period representative of its operations during all times material herein, ADM sold and distributed products valued in excess of $50,000 at its Superior, Wisconsin, elevator, of which products valued in excess of $50,000 were shipped to points located outside the State of Wisconsin. During the same period, ADM purchased and caused to be transported and delivered to its Superior, Wisconsin, elevator grain and related materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its Superior, Wisconsin, elevator directly from points located outside the State of Wisconsin. American Grain Trimmers Company, a Minnesota corporation (hereinafter referred to as American), is engaged in the trimming and loading of cargo on merchant vessels. It has a place of business in Supe- rior, Wisconsin, at which it has performed services valued in excess of $50,000, of which services valued in excess of $50,000 were performed in and for var- ious enterprises located in States other than Wiscon- sin during the year ending December 31, 1977, which period is representative of its operations during all times material herein. During the same period, in the course and conduct of its business operations, Ameri- can performed shipping services as an essential link in interstate and international trade and commerce val- ued in excess of $50,000, on cargo which is shipped in interstate and international trade and commerce. We thus find that ADM and American are, and have been at all times material herein, employers en- gaged in commerce and in business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. II. RESPONI)ENF; THE LABOR ORGANIZAHION INVOLVED The Respondent, Local Union No. 1037, Interna- tional Longshoremen's Association, AFL-CIO, is, and has been at all times material herein, a labor or- ganization within the meaning of Section 2(5) of the Act. 241 NLRB No. 58 434 INTERNATIONAL LONGSHOREMEN'S LOCAL UNION NO. 1037 Ill. THE UNFAIR ABOR PRACTICES A. Facts This case arises out of the same factual context considered by the Board in a 10(k) proceeding re- ported at 237 NLRB 1119 (1978). In that case, the Board considered a dispute between Local 1037, ILA, and Local Union No. 118, the American Federation of Grain Millers, AFL CIO, concerning the opera- tion of controls for long tubes, called "spouts," which are used to load grain from ADM's elevator to ships' holds. Prior to the opening of the St. Lawrence Seaway in 1959, grain was loaded through three spouts attached to ADM's elevator, each of which was manned by an ADM-employed grain miller. The vertical and tele- scopic (in and out) movements of the spouts were controlled by means of manually turned cranks on winches located on the elevator wall some 30 feet from the nearest side of the ship. Longshoremen, em- ployed by a stevedoring concern hired by a grain buy- er's agent, stayed aboard ship. They controlled the lateral movements of the spouts by attached ropes. Through hand signals and/or shouting, the long- shoremen directed the grain millers, who were unable to see the holds, to start, slow, or stop the grain flow and to raise, lower, or telescope the spout. With an increase in shipping after the Seaway was opened, ADM gradually modernized its operation. In 1977, ADM constructed three grain towers situated 6 feet from the water's edge on which larger electrified spouts were installed. The electrified controls for these spouts now included a control for lateral move- ment. ADM also constructed in the middle tower a "cab" positioned about 30 feet above dock level which was to house the electrical control panel for all spouts. This panel was to be operated by a grain miller. By late 1977, all construction and electrical work had been completed except for a voice commu- nication system linking the longshoremen aboard ship with the cab. Because of this communication prob- lem, ADM transferred the electrified spout control panel from the grain miller operators on the dock to the longshoremen on the deck. The Grain Millers Lo- cal subsequently filed several grievances alleging a contract violation. On November 28, 1977, ADM ad- mitted the violation and agreed to return the control panel to grain millers after completion of the voice communication system, which occurrred prior to the start of the 1978 shipping season. Longshoremen, however, continued to operate the panel until the close of the shipping season in December 1977. The 1978 shipping season began on April 15 with the arrival of the ship Baie St. Paul. In accordance with its agreement with the Grain Millers Local, ADM assigned the control panel in the cab to an ADM-employed grain miller. A crew of longshore- men, represented by Respondent and employed by American, was called upon to load that evening and the loading procluded without incident, although the crew did question the reassignment of the control panel. The loading of the ship was not completed that evening and the crew therefore returned on Monday morning, April 17, to complete the job. Before begin- ning work, however, Respondent's president, Willard Severson. demanded that the American longshore- men crew, who are represented by Respondent, be given control of the spouts. An ADM representative proposed splitting the controls and assigning the lat- eral controls to the American longshoremen on the ship. The Grain Millers Local, however, rejected this compromise, and the longshoremen crew then left the ship and ADM property. As a result of the work stop- page, the shipping agent moved the Baie St. Paul to another elevator, and a second ship scheduled to be loaded was also diverted from ADM's facility. The Longshoremen stayed out on strike from April 17 through 20 and ADM was not able to resume normal operations until April 21. B. Contentions of the Parties Both the Charging Party and the General Counsel assert that, by its work stoppage, Respondent was at- tempting to exert pressure on American, with the ob- ject of either forcing a change in ADM's manner of doing business or coercing American to cease doing business with ADM. Respondent raises two affirmative defenses. First, Respondent claims that its members engaged in a work stoppage to protest hazardous working condi- tions because the removal of their control over the movement of the spouts took away their only margin of safety. Second, Respondent maintains that ADM cannot be considered a "neutral" employer within the contemplation of Section 8(b)(4)(B) of the Act. C. Conclusions In its memorandum to the Board in this case, Re- spondent reiterates its contention, initially made in the 10(k) proceeding, that the longshoremen's refusal to work was based on their belief that assignment of the work of controlling "spouts" to the grain millers "created an unsafe and hazardous condition." We have carefully considered Respondent's memoran- dum and the briefs of the General Counsel and the Charging Party in light of the record in the 10(k) pro- ceeding which the parties have stipulated to be part of the record herein, and we find no merit in Respon- 435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent's asserted defense predicated on the alleged exis- tence of unsafe working conditions. Thus, as shown in the record and noted in the De- cision and Determination of Dispute in the 10(k) pro- ceeding (237 NLRB 1119), in the infrequent instances when the view from the cab is obscured the cab op- erator can rely on instructions from longshoremen conveyed by hand signal, voice, or both. Further- more, spouts are not moved at all during loading op- erations, and when they are moved, movement is re- stricted in speed and distance (approximately 5 miles per hour and from 0 to 40 degrees from dead center depending on the ship). Finally, in the stipulation of facts herein, the parties agree that if called as a wit- ness the elevator manager would testify, and it would be admissible as evidence, that there have been no personal accidents or injuries due to the operation of the electric spout controls located in the cab. Accord- ingly, based on our review of the record as a whole, we are unable to find any record evidence to support Respondent's claim that the work stoppage in issue was caused by the existence of unsafe conditions.' Nor do we find merit in Respondent's claim that the complaint should be dismissed because ADM was not a "neutral" employer and hence was not "entitled to the protection of Section 8(b)(4)(B) of the Act." The short answer to Respondent's argument is that it misconceives the basis for the complaint in this case. Thus, as counsel for the General Counsel aptly points out in his brief, ADM most certainly is not a "neu- tral." However, the complaint alleges, and we find, that in furtherance of its labor dispute with ADM concerning the assignment of the controls for spouts, Respondent engaged in a strike and work stoppage against American, an employer separate from ADM, which lacks authority to assign the controls and which has no interest in the dispute between ADM and Respondent-in sum, a "neutral" employer.2 It is well settled that a union violates Section 8(b)(4)(B) when it engages in a work stoppage against a neutral employer, which employs its members, over a dispute with another employer.3 Accordingly, we find that, when Respondent engaged in a work stoppage I Assuming, arguendo, Respondent's conduct was in part motivated by concern for safety, the record nevertheless supports a finding that an object of its conduct was to obtain assignment of the controls of the grain spouts, an object that it sought to achieve by exerting unlawful pressure on American. 2 See International Longshoremen's Association, AFL-CIO (The Chesa- peake and Ohio Railway Company), 225 NLRB 1066 (1976): International Longshoremen's Association, AFL-CIO (Consolidated Express, Inc.), 221 NLRB 956 (1975), enfd. 537 F.2d 706 (2d Cir. 1976); and International Long- shoremen's and Warehousemen's Union, et al. (California Cartage Company, Inc.), 208 NLRB 994, 208 NLRB 986 (1974). 3 N.L.R.B. v. Enterprise Association of Steam, Hot Water, Hydraulic Sprin- kler, Pneumatic Tube, ice Machine & General Pipefitters of New York and Vicinity, Local Union No. 638 (Austin Co., Inc.), 429 U.S. 507 (1977): Local No. 742, United Brotherhood of Carpenters and Joiners of America (J. L. Simmons Company, Inc.), 237 NLRB 564 (1978). against American because of a dispute with a sepa- rate employer, ADM, it violated Section 8(b)(4)(i) and (ii)(B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occur- ring in connection with the operations of the Em- ployer, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact, conclusions, and the entire record, we make the fol- lowing: CONCLUSIONS OF LAW 1. ADM Grain Company, a subsidiary of Archer- Daniels-Midland Company, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. American Grain Trimmers Company is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Local Union No. 1037, International Long- shoremen's Association, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 4. By inducing and encouraging individuals em- ployed by American Grain Trimmers Company to engage in a work stoppage, an object thereof being to force American Grain Trimmers to cease doing busi- ness with ADM Grain Company, a subsidiary of Archer-Daniels-Midland Company, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. THE REMEDY Having found that Respondent engaged, and is en- gaging, in certain unfair labor practices, we shall or- der that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER The Respondent, Local Union No. 1037, Interna- tional Longshoremen's Association, AFL-CIO, Supe- rior, Wisconsin, its officers, agents, and representa- tives, shall: 436 INTERNATIONAL LONGSHOREMEN'S LOCAL UNION NO. 1037 1. Cease and desist from: (a) Engaging in. or in any manner, including or- ders, directions, instructions, or appeals, however given, made, or imparted, inducing or encouraging any individual employed by American Grain Trim- mers Company, or by any other person engaged in commerce or in an industry affecting commerce, to engage in a work stoppage or in a refusal in the course of his employment where the object of any of the foregoing conduct is to force or require American Grain Trimmers Company to cease doing business with ADM Grain Company, a subsidiary of Archer- Daniels-Midland Company. (b) In any other manner restraining or coercing employees of American Grain Trimmers Company, or of any other company, in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Withdraw and rescind any and all orders, di- rections, instructions, requests, or appeals pursuant to which employees of American Grain Trimmers Com- pany engaged in a work stoppage on April 17 20, 1978, on the docks owned by ADM Grain Company, a subsidiary of Archer-Daniels-Midland Company, Superior, Wisconsin. (b) Post at its offices or meeting halls copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respon- dent's authorized representative, shall be posted im- mediately upon receipt thereof, and be maintained by it for 60-consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees and 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. Respondent shall also sign copies of the notice which the Regional Director shall make available for posting by American Grain Trimmers Company and ADM Grain Company, a subsidiary of Archer-Daniels-Midland Company, they being will- ing. 4 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." (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NAIIONAL LABOR REI.ATIONS BOARD An Agency of the United States Government Both sides having had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice and abide by its terms. WE WILL NOT call a strike or, in any way, or- der, direct, instruct, urge, ask, persuade, or influ- ence our members or other individuals employed by American Grain Trimmers Company or by any other company to refuse to do any work, nor will we put pressure of any kind on American Grain Trimmers Company or any other com- pany where our purpose in doing any of these things is to force American Grain Trimmers Company or any other company to stop doing business with ADM Grain Company, a subsid- iary of Archer-Daniels-Midland Company. WE WILL NOI in any other manner restrain or coerce employees of American Grain Trimmers Company or any other company in the exercise of rights guaranteed by Section 7 of the Act. WE WILL, and we do now, cancel, revoke, and withdraw the orders and instructions given to our members and other individuals employed by American Grain Trimmers Company to engage in a work stoppage at the docks owned by ADM Grain Company, a subsidiary of Archer-Daniels- Midland Company. WE WIL.L, and we do now, notify our members and other individuals employed by American Grain Company that we have no objection to their working at docks owned by ADM Grain Company, a subsidiary of Archer-Daniels-Mid- land Company. LOCAL UNION No. 1037 INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO 437