Local 991, Int'l Longshoremen's Assn., Etc.

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which have remained unopened pending the outcome of that matter,, the Regional Director shall certify the Petitioner as the exclusive bargaining representative of the employees in the unit found appropriate. NOTICE Is HEREBY GIVEN that, in the event the aforementioned ballots when opened and counted do not determine the results of the election, the Board will entertain briefs from the parties, to be filed within 10 days from the date of the revised tally of ballots, as to their respective positions concerning the Petitioner's motion requesting the Board to direct the Regional Director to open and then set aside the ballots of the three challenged voters currently the subject of an unfair labor practice case, and to certify the Petitioner if one or more of those ballots was cast for the Petitioner. IT IS HEREBY ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for the Second Region for further proceedings consistent with this Decision. Local 991, International Longshoremen's Association, AFL-CIO; Local 1406, International Longshoremen's Association, AFL- CIO; South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO and Union Carbide Chemical Company, Division of Union Carbide Corporation. Case No. 33-CD-46. June 22, 1962 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10(k) of the Act, which pro- vides that "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(d) of sec- tion 8(b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair labor practice shall have arisen . . . ." On May 16, 1961., Union Carbide Chemical Company, Division of Union Carbide Corporation, herein called Carbide or the Employer, filed with the Regional Director of the Twenty-third Region a charge alleging in substance that on May 15, 1961, Local 991, Local 1406, and the South Atlantic and Gulf Coast District, International Longshore- men's Association, AFL-CIO, herein called Local 991, Local 1406, and the District, or collectively the ILA, violated Section 8(b) (4) (i) and (ii) (D) of the Act, as amended, by inducing and encouraging individuals employed by Carbide and by other employers to engage in a strike or refusal to work, and threatened, coerced, and restrained Carbide and other employers where an object in both cases was to force and require Carbide to assign particular work to employees rep- 137 NLRB No. 85. LOCAL 991, INT'L LONGSHOREMEN'S ASSN., ETC. 751 resented by the above-named labor organizations rather than to em- ployees represented by Texas City, Texas, Metal Trades Council, herein called the Trades Council.' Thereafter, pursuant to Section 10 (k) of the Act and Sections 102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the Regional Director investigated the charges and provided for a hear- ing upon due notice. The hearing was held August 9, 10, and 11, 1961,, at Houston, Texas, before George Norman, hearing officer. The Trades Council was granted leave to intervene and all parties ap- peared and were represented at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence hearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are affirmed 2 Briefs were filed by Carbide, by Locals 991 and 1406, and by South Atlantic and Gulf Coast District.' Upon the entire record in this case, the Board 4 makes the following. FINDINGS OF FACT 1. The parties stipulated and we find that the Employer is engaged in commerce within the meaning of the Act. 2. The parties stipulated and we find that Local 991, Local 1406, and the District, and the Trades Council, the Intervenor herein, are labor organizations within the meaning of the Act. 3. The dispute : A. The facts Carbide manufactures synthetic organic chemicals and plastics, in- cluding polyethylene and vinyl resin, at a 400-acre plant site in Texas City, Texas. Between 2 and 3 miles from the principal plant site, Carbide has leased barge and container dock areas from the Texas City Terminal Railway Company. However, Carbide owns the dock structures and installations and maintains them with plant employees. Adjacent to the leased container dock, Carbide has a loading area, known as the "No. 1 oil dock," through which it has, for at least 12 years, regularly loaded liquid chemicals for transportation on a company-owned tank ship the SS Wilson. Loading of liquid chemi- cals onto the tank ship has always been handled by Carbide employees. Carbide ships polyethylene and vinyl resin in the dry state. Ship- ments of these chemicals have been made in 50-pound paper bags, in railroad hopper car containers, in intermediate box containers, and in rubber bag shipping and storage containers. All these containers ' An amended charge was filed May 23, 1961 9 At the beginning of the hearing the Respondent moved to dismiss the proceedings The hearing officer referred the motion to the Board . The motion is hereby denied ,3 Carbide requested oral argument . Since the record and the briefs fully set forth the issues and the positions of the parties , the request is denied. ' Chairman McCulloch did not participate in this Decision 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been loaded by Carbide employees at the plant for shipment by common carriers. For shipments of resin in paper bag containers, Carbide utilized the services of two common carriers by water- namely, Seatrain, Inc., and Pan Atlantic Company. Carbide con- tinues to ship some of its dry chemicals in this manner. There is evidence as to how Seatrain handled these shipments, but there is no such evidence as to Pan Atlantic. Seatrain maintains yard and dock facilities at Texas City. The loaded paper bags were brought to the Seatrain yard in a trailer truck driven by an employee of an outside trucking firm. Employees of Seatrain, represented by the ILA, then took over the handling of the bags until they were loaded aboard ship. Seatrain employees render similar services for other companies. About May 15, 1961, Carbide began shipping resins in specially con- structed aluminum containers transported in a specially rebuilt tank ship. To handle the containers at dockside, Carbide leased 3 acres of land adjacent to the "No. 1 oil dock" and installed necessary equip- ment and facilities. The containers are filled at the plant by Carbide employees and hauled on special trailers to the container dock by tractors operated by an independent company. Employees of Carbide operating cranes lift the container onto the ship, the SS Carbide Seadrift, and into the ship's specially prepared hold. Carbide employees at the container dock are : a crane operator classi- fied as a heavy equipment operator, who does not, however, work full time at the dock; a dock operator who assists on the dock and aboard ship in lining up containers and moving the hatch cover (the same classification of employees works at the barge and oil docks in loading liquid chemicals aboard barges and ships and at the tank storage ter- minal near the container and oil dock areas) ; a chief dock operator who coordinates the entire work of loading and unloading the ship; and a foreman. The SS Carbide Seadrift is equipped to carry both liquid chemicals and resins in containers. It can be loaded with liquids and containers at the same time. All such work is done by Carbide employees under the same overall supervision. The Trades Council has represented production and maintenance employees at the Texas City plant since 1944. In 1960, the Board certified that union as representative of such employees. Collective- bargaining contracts between the Trades Council and Carbide, in- cluding the contract effective from May 1, 1958, to June 15, 1961, have always been considered by the parties to cover shipping as well as plant employees. When the prospect of the container dockwork be- came known in 1960, both parties agreed that the work was covered by the contract, but no new job classifications were added since the LOCAL 991, INT'L LONGSHOREMEN'S ASSN., ETC. 753 work was to be performed by employees already covered by the agree- ment. Carbide has had no contractual relations with the ILA. Work at the container dock is intermittent. When not needed at the container dock employees are assigned to the large dock, plant proper, or some other location. On February 16, 1961, Ralph A. Massey, president of the District, ILA, wrote Carbide asking for a meeting to discuss the loading and unloading of cargo at the container dock under construction "as our organization is recognized throughout the United States as having jurisdiction over employees engaged in the loading and unloading of these vessels." Carbide declined to meet stating that the work in prog- ress was "an extension of shipping functions currently carried on and is an integral part of the plant's operations. As in the past we expect whatever work necessary to be performed by Texas City plant em- ployees." Massey replied on April 6 reiterating his union's claim to the work in question. On May 15, 1961, the ILA began picketing the private road leading to the dock area where SS Carbide Seadrift was berthed. The picketing continued until May 22 when it ceased pur- suant to a stipulation and order entered that day in the United States District Court, Southern District of Texas. As a result of the picket- ing, employees of trucking, construction, and electrical contractors working for Carbide at the dock ceased work and some crew members of the SS Carbide Seadrift left the ship. B. Contentions of the parties Carbide contends that the picketing violated Section 8(b) (4) (D) ; that in deciding which group of employees is entitled to perform the work in dispute the Board is not required to apply principles used by arbitrators, but that if such principles are used then the work should be assigned to employers represented by the Trades Council. Respondents contend that there is no violation of Section 8 (b) (4) (D) ; but that if there is such a violation the Board is obliged to resolve the underlying jurisdictional dispute on its merits and to make an affirmative award in accordance with the CBS decision.5 It further claims that the work should be assigned to its members. The Trades Council supports the position taken by the Carbide and claims the work in dispute by virtue of its certification, its bargaining contract, and the assignment by Carbide. C. Applicability of the statute The charge, which was duly investigated by the Regional Director, alleges a violation of Section 8(b) (4) (D) of the Act. We are satis- 5 N.L R B. v. Radio & Television Broadcast Engineers Union Local 1212 International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573 649856-63-vol. 137-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled on the basis of the foregoing evidence, that there is reasonable cause to believe that a violation of that section has been committed. We therefore find that the dispute is properly before the Board for determination under Section 10(k) of the Act. THE MERITS OF THE DISPUTE In the CBS case, the Supreme Court said that the Board could not simply accept an employer's assignment of disputed work as auto- matically dispositive of a jurisdictional dispute. The Court held that under the statute the Board must determine jurisdictional disputes on their merits, which means that the Board must determine affirma- tively whether one or the other disputing group of employees is en- titled to do the work in controversy. The Court further said that in making such disposition the Board should use commonsense and con- sider standards generally used by arbitrators, unions, employers, joint boards, and others. It is true that in the CBS case the employer was neutral; and the language used by the Court is to some extent colored by that fact. But the underlying rationale of the decision clearly indicates that the Court was laying down a guide for the disposition of all jurisdictional disputes and not simply those in which the em- ployer is truly indifferent as to which group of claimants shall perform the disputed work. That the Court intended the reach of its decision to be coextensive with the jurisdictional work problem is conclusively established by the fact that it cited with approval the decision of the Court of Appeals for the Third Circuit in N.L.R.B. v. United Asso- ciation of Journeymen and Apprentices of the Plumbing e6 Pipe Fit- ting Industry, Local 420 (J. J. 1Vhite, Inc.) 242 F. 2d 722, and the decision of the Court of Appeals for the Seventh Circuit in N.L.R.B. v. United Brotherhood of Carpenters f Joiners of America, Local 60, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (TVendnagel cC Company), 261 F. 2d 166, which has rejected the Board's interpretation of Section 10 (k). Both of these cases involved employers which were not neutral. Thus, in CBS, the Court,said (364 U.S. 573): We agree with the Second, Third and Seventh Circuits that 10(k) requires the Board to decide jurisdictional disputes on their merits ... . Accordingly, we reject Carbide's contention that the Board must accept the Company's assignment of the disputed work as dispositive of the jurisdictional dispute. On the merits, we find that there are convincing reasons to support Carbide's assignment of the disputed work. ILA members have never worked directly for Carbide. Indirectly, they had only handled part of the bagged shipments of resin; there is no evidence that ILA mem- LOCAL 991, INT'L LONGSHOREMEN'S ASSN., ETC. 755 bers worked for Pan Atlantic as they did for Seatrain. Carbide had established a special dock to handle specific cargo to be loaded on a special ship. There is no general cargo handled at the container dock. The loading and unloading of containers requires little more than the use of a crane. There is no evidence that the employees now responsi- ble for loading operations are less skilled than ILA members in the performance of the particular functions involved. The Trades Council is the certified bargaining representative of Carbide's production and maintenance employees. Although the con- tainers dock was not in operation when the 1960 Board election was conducted, employees working at that dock would undoubtedly have been included in the appropriate unit, as were the employees handling liquid cargo at the oil dock. The job classifications working at the dock are substantially identical with job classifications included in the unit and covered by the collective-bargaining contract between Carbide and the Trades Council. In fact, when the two parties agreed that such employees were covered by the contract they found it unnecessary to amend their agreement to include additional job classifications. Finally, the dock employees neither work intermittently nor work only at the dock. They work regularly throughout the plant, depend- ing on where they are needed. If ILA members were to do this work they would necessarily work on an intermittent basis because of the nature of shipping operations. We believe that the foregoing con- siderations justify the assignment of the disputed work to Carbide's employees represented by the Trades Council. In making this deter- mination we have considered the ILA's contention that generally it has jurisdiction over the loading and unloading of ships, and that its members had specifically handled bagged resin shipments made through Seatrain. However, the ILA's claim, based for the most part on general jurisdiction, is outweighed by the special factors referred to above. We cannot agree with Member Brown that these factors are overridden either by the fact that the work in dispute is the type of work historically performed by members of the ILA, at Texas City or elsewhere, or the fact that ILA members were utilized by a different employer to load this same type of cargo in connection with a different method of shipment. An award in favor of the ILA on the basis of these factors alone would mean that, for all practical purposes, the ILA's historical representation of longshoremen would be the con- trolling factor in the resolution of work assignment disputes, and that the other factors, present here, which the Supreme Court suggested would be relevant, would in fact be inconsequential. Accordingly, we find that the ILA was not and is not entitled by means proscribed by Section 8(b) (4) (D) to force or require Carbide to assign the work of loading operations at its dock in Texas City, Texas, to members of the ILA. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in the case, the Board makes the following determination of dispute pursuant to Section 10(k) of the Act: 1. Employees employed in the production and maintenance unit at the Union Carbide Chemical Company, Texas City, Texas, plant, currently represented by Texas City, Texas, Metal Trades Council, AFL-CIO, are entitled to load and unload ships at the Employer's Texas City docks. 2. Accordingly, Local 991, Local 1406, and South Atlantic and Gulf Coast District, all affiliated with International Longshoremen's As- sociation, AFL-CIO, are not and have not been lawfully entitled to force or require Union Carbide Chemical Company, Division of Union Carbide Corporation, to assign the loading and unloading of ships at the Employer's docks at Texas City, Texas, to members of said organizations. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 991, Local 1406, and the South Atlantic and Gulf Coast District, all affiliated with the International Longshoremen's Association, AFL-CIO, shall notify the regional Director for the Twenty-third Region, in writing, whether or not they will refrain from forcing or requiring Union Carbide Chemical Company to assign the work in dispute to their members rather than to employees of the Employer. MEMBER RODGERS, concurring : I concur with Members Leedom and Fanning, but only as to the result reached. MEMBER BROWN, dissenting : I agree with the majority holding that the record shows probable cause to believe that a violation of Section 8(b) (4) (D) of the Act has occurred and that there exists a jurisdictional dispute properly to be determined by this Board under Section 10(k), with an affirma- tive award of the work to one of the two competing groups of em- ployees. I also agree with Members Leedom and Fanning that proper determination of the positive work assignment must take into con- sideration, not only the present desire of the employer, but also all other pertinent and material factors appearing in the record. Con- trary to the majority view, however, I would award the disputed work to the longshoremen who for many years have performed the work and who are represented by the Respondent International Long- shoremen's Association unions. The basic facts are simple and not in dispute. At its plant 3 or 4 miles distant from the Texas City, Texas, docks, the Company pro- LOCAL 991, INT'L LONGSHOREMEN'S ASSN., ETC. 757 duces both dry and liquid resin products. From 1947 it has used common carriers-trucking companies, railroads, ships-to send the product to its customers in distant locations. The liquid resin leaves the plant either in railroad tank cars or by pipe to company storage tanks located near the Texas City docks, where, by pipe, it is pumped into ships, operated by other companies, which then sail to other ports. The dry resin is loaded at the plant into a variety of containers which are carried away by railroads or by trucks, some of it going to the Texas City docks where it is put on ships which then continue on to other destinations. All shipping and loading activities at the plant itself have long been, and are even now being performed by the Com- pany's own employees, represented in collective bargaining by the Metal Trades Council of Texas City. As to the handling of resin, either liquid or dry, after it has left the plant, the only work per- formed by company employees over the years was the moving of liquid resin by pipe from the company storage tanks near the docks into the holds of certain ships. Continuously from 1953 through 1961, all the dry resin that left Texas City by ship was transported from the plant to the docks by contract truckers who employed members of the Teamsters Union. At the port, the resin was then taken away by Seatrain Lines, Inc., which moved it from the trucks, lifted it into ships, stored it in the holds or on deck superstructures, and carried it away. For all of this work of loading its ships, Seatrain Lines has always used longshoremen, who have always been represented, under collective-bargaining agree- ment, by the ILA and its locals. In 1961, the Company built its own crane at the Texas City docks, outfitted its own ship for transporting dry resin, and began using employees from its plant, or newly hired heavy equipment operators, to move the resin containers from trucks still driven by Teamster members, and to load them aboard ship. It refused the request of ILA representatives that the longshoremen who had long done this work be permitted to continue in their traditional occupation. It is this function-the loading of dry cargo aboard ship at the Texas City docks and the concomitant removal of empty containers-that con- stitutes the work in dispute in this proceeding. The Supreme Court has directed us, in its CBS decision, to rely on "experience and commonsense" in making work awards in these pro- ceedings; and among the factors mentioned by the Court in this con- nection were "the practice and custom of this and other companies and of these and other unions." 6 Consistent with this directive, the Board announced that it would "consider all relevant factors in deter- e N.L.R.B. v Radio & Television Broadcast Engineers Union Local 1212 International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcasting System), 364 U.S. 573. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mining who is entitled to the work in dispute." 7 As I appraise all 'of the pertinent and material factors in the context of this record, I can only conclude that the longshoremen are entitled to the work in question. When all the dry resin was being shipped through Seatrain Lines, as some of it still is, it was packaged in 50-pound paper bags. Today, that part which is being moved from dock to aboard the SS Seadrift, the new ship, is in new aluminum containers designed and constructed for this special purpose. However, in terms of the work long per- formed by the longshoremen to load the Seatrain ships, and now by the plant employees who load the Seadrift, there is virtually no dif- ference between the work duties of the two groups. The new con- tainers are about the size and shape of railroad boxcars, arrive at the dock on trucks, are lifted individually by overhead crane, and finally deposited in the hold of the ship. The 50-pound bags are loaded at the plant into vans or boxcars, both described at the hearing as about the same size and shape as the new aluminum containers. When these vans and cars reach the docks, they are lifted by Seatrain's dock crane-also described as comparable in size and operation to the Company's new one-and in like manner hoisted above the ship and lowered into its holds. Thus the fact that in one case the overall containers are filled with bags of resin and in the other with loose resin, bears no relationship to the work of loading the ship and empty- ing it of the containers after the return voyage. In sum, a net result of the change in operations in May 1961 was a switch in assignment of virtually the same work from one group of employees who have long performed it to a new group which had never enjoyed it. As the work in dispute-loading dry cargo aboard ship-has re- mained essentially unchanged, meaningful determination of an affirm- ative work award in this case must turn upon those characteristics which distinguish one of the claiming groups of employees from the other. The longshoremen have always loaded dry cargo on ships at the Texas City docks. Indeed this record shows affirmatively that this class of employees has been the only group ever to do this work there. As to the Company's dry resin products, the longshoremen's exclusive past prerogative to load ships is virtually conceded. There are other shippers which likewise use Seatrain, with its longshoremen, to load ships at these docks. One witness testified, without contradiction, that only Seatrain has the necessary equipment at this location for such work. The ILA business agent, many years in that post, added that he knew of none but longshoremen who had loaded ships with such cargo for well over 5 or 10 years at least. 7International Association of Mach,nists, Lodge No. 1743, AFL-CIO (J. A. Jones Con- struction Company), 135 NLRB 1402. LOCAL 991, INT'L LONGSHOREMEN'S ASSN., ETC. 759 Moreover,,this Board, with its knowledge of industrial relations can well consider also the ancient tradition of longshoremen, both in claiming and performing the work of loading ships at American ports. In case after case over the years, it has had occasion to deal with the long-standing constitutional jurisdictional claim of the In- ternational Longshoremen's Association to "all work done directly or indirectly in connection with loading and unloading operations of all floating structures...." The record in this case shows that, from this same plant, the Com- pany also sends out dry resin for eventual shipment in the holds of vessels operated by a concern called Pan Atlantic Lines. Although at the hearing the Company, as well as the Metal Trades Council which represents its plant employees, objected to any inquiry into the custom and practice of loading ships at other ports, in its brief it relies on the fact that there is no evidence as to what class of em- ployees load the Pan Atlantic ships. But Pan Atlantic does not operate at Texas City; dry resin goes by truck from the plant to Houston, Texas, where Pan Atlantic ships are loaded, and there is no claim, or evidence, that at that other port, longshoremen are not also used for placing the cargo aboard. It may be fairly assumed, how- ever, in view of the widespread practice at American ports generally, that in all probability longshoremen are also engaged in loading ships for sea at the Houston port. In any event, this case concerns itself primarily with the clear and established port practice at the Texas City docks. Against the foregoing, there is no countervailing evidence, or claim, that the employees to whom the Company assigned the work on its new shiploading facilities have ever worked as shiploading longshore- men, or that any union or unions representing them have made any jurisdictional claims to the work. The Metal Trades Council of Texas City is the bargaining agent of the plant employees and its spokes- man, who is also business agent of the International Union of Op- erating Engineers, a constituent local of that Council, objected to any examination of the constitutions or bylaws of those organizations. He also admitted he knew of no member of his union-even in the classification of operator, crane operator, or heavy equipment opera- tor, the titles assigned by the Company to the jobs in dispute-who had ever worked at Texas City loading ships, or aboard any vessel carrying dry cargo. Clearly, then, the very pertinent factors of traditional jurisdictional claims by competing labor organizations, widespread custom throughout the industry, and unbroken past prac- tice by the very employer involved in the dispute before us, point un- mistakably to an award in favor of the longshoremen. To offset these relevant considerations, the Metal Trades Council, on behalf of its members, relies primarily upon its contract, which covers "all production and maintenance employees of the Company 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in its Texas City plant," and the fact that there have always been plant employees who did loading work and operated cranes like the new one at the Texas City docks. However, that contract, as well as the earlier Board certification upon which it rests, came into being while the work in dispute was not being performed by employees of the Company at all, but by longshoremen employed by Seatrain Lines. Therefore, neither contract nor certification can be said to have been intended to cover this work. The fact that the Company employees now doing longshoremen work are given the same job title used at the plant in no measure blurs the distinction between plant employees and shiploading activities. It is the fact that longshoremen load ships-long ago by the strength of their backs and now with overhead cranes-which distinguishes them, in the jurisdictional dispute sense, from other employees, and not the particular appellation used in their job descriptions. Equally unpersuasive is the oral agreement between the Metal Trades Council and the Company, reached when the question of changing work assignment arose, that the plant employees were entitled to it un- der their already existing agreement, or any idle speculation as to what the Board might have done, as a matter of unit placement or question concerning representation, if plant employees instead of longshoremen had been 'loading the ships at the time the certification of representatives issued. The Company's desire to assign this work to employees who have comparable duties at its regular production plant location, and the added operational convenience flowing from interchangeability of em- ployees who would only work part time on its new ship loading equip- ment, are, of course, matters also to be considered by this Board in pro- ceedings of this type. These aspects of the work dispute are not overriding however, and cannot exclude from proper evaluation other, more weighty factors. The plant operation, with its intimately in- tegrated loading and shipping work, has always run smoothly while longshoremen loaded the dry resin on the ships at Texas City. The regular work of longshoremen has always been intermittent by its very nature, rushed when ships are in port, and slack when the ships are at sea. The fact of the work being irregularly scheduled has not pre- vented a large and distinctive class of employees from coming into be- ing, or the International Longshoremen's Association from tradition- ally acting as their collective-bargaining representative. No persuasive reason appears why the use of longshoremen to load the SS Seadrift with cargo should present problems which have not arisen throughout the shipping industry generally. If the broad principles enunciated by the Board in the Jones deci- sion, supra, are ever to be accorded meaningful implementation, the disputed work in this case should be awarded to the longshoremen, who are represented by the ILA.