International Longshoremen's, Etc., Local 10

INTERNATIONAL LONGSHOREMEN'S, ETC., LOCAL 10 449 International Longshoremen's and Warehousemen 's Union, Local 10 [Matson Navigation Company; Matson Terminals, Inc.] and Shipwrights, Joiners, Boatbuilders and Caulkers, Local 1149, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO International Longshoremen's and Warehousemen's Union, Local 10 [American President Lines, Ltd.; Marine Terminals Corpo- ration] and Shipwrights, Joiners, Boatbuilders and Caulkers, Local 1149, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases Nos. 2O-CD-82-1 and 2O-CD-82-2. January 4, 1963 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Act, following charges filed by Shipwrights, Joiners, Boatbuilders and Caulkers, Local 1149, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Carpenters, al- leging that International Longshoremen's and Warehousemen's Union, Local 10, herein called the ILWU or Longshoremen, has violated Sec- tion 8(b) (4) (D) of the Act. Pursuant to notice, a hearing was held before Robert V. Magor, hearing officer, between July 2 and 16, 1962, at which all parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to adduce evi- dence bearing upon the issues . The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby af- firmed. Thereafter, all of the parties filed briefs which have been duly considered.' Upon the entire record in this proceeding, the Board makes the following findings : 1. The Business of the Employers Matson Navigation Company, herein called Matson Navigation, a California corporation with its principal office in San Francisco, is engaged in the transportation of passengers and cargo by ship from ports in California to ports located in other States. Annually, it trans- ports cargo having a value of approximately $200 million between ports of the various States. Matson Terminals, Inc., herein called Matson, a wholly owned sub- sidiary of Matson Navigation, is a California corporation with its principal office and place of business in San Francisco. It is engaged in the stevedoring business. Annually, it receives in excess of $500,000 'As the record, including the briefs, adequately presents the issues and positions of the parties, the request for coral argument by the Employers is denied. 140 NLRB No. 42. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for its services of loading and unloading ships owned by employers engaged in interstate and foreign commerce. Annually, Matson re- ceives in excess of $50,000 from Matson Navigation for such services. American President Lines, Ltd., herein called APL, a Delaware corporation with its principal office in San Francisco, is engaged in the transportation of passengers and cargo by ship from ports in Cali- fornia to ports located in other States and foreign countries. An- nually, it receives in excess of $1,000,000 for the transportation of cargo in interstate and foreign commerce. Marine Terminals Corporation, herein called Marine Terminals, with its principal office and place of business in San Francisco, is en- gaged in the stevedoring business. Annually, it receives in excess of $500,000 for its services in loading and unloading ships owned by em- ployers engaged in interstate and foreign commerce. Annually, Ma- rine Terminals receives in excess of $50,000 from APL for such services. We find that Matson Navigation, Matson, APL, and Marine Ter- minals, herein collectively called the Employers, are engaged in com- merce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 2. The labor organizations involved The Carpenters Union and the Longshoremen's Union are labor organizations within the meaning of Section 2(5) of the Act. 3. The dispute The Work at Issue The work involved in this dispute consists of the building or as- sembling of loads of lumber on certain docks in San Francisco. The lumber is subsequently used aboard ship to secure or shore up cargo. Both of these tasks are performed by carpenters who are members of the Carpenters. The ILWU does not claim the shoring work per- formed by carpenters, but does claim the assembly of lumber loads. The Basic Facts APL directly employs carpenters but subcontracts stevedore work for the loading and unloading of its ships to Marine Terminals, which in turn employs longshoremen. Matson, a subcontractor, performs stevedore work for ships owned by Matson Navigation, but also em- ploys carpenters. All four Employers are members of Pacific Mari- time Association, herein called PMA, and are represented by PMA for collective-bargaining purposes with the ILWU. The PMA-ILWW'TJ contract covers all west coast employers employing longshoremen. INTERNATIONAL LONGSHOREMEN'S, ETC., LOCAL 10 451 However, APL and Matson each has a separate contract with the Car- penters covering carpenters. The specific work performed by carpenters and longshoremen at APL and Matson piers is substantially the same. The work of the carpenter begins after he or his foreman inspects the type of cargo in the hold of a ship to determine the kind of shoring of cargo that will be necessary. The carpenter then proceeds to the dock which has stockpiles of lumber and selects various pieces of lumber and places them on a 4-wheel vehicle in the order of their eventual use aboard ship. Compactness of the lumber load is necessary to fit it into the hold of the ship and to provide sufficient working space for the car- penter within the hold. At APL, a carpenter or a longshoreman trans- ports the load of lumber a distance of about 500 to 1,000 yards to the loading area of the ship, where the load is placed under a hook and hoisted aboard ship and into the hold by longshoremen. At Matson, the carpenter often transports the lumber load to the loading area, where the longshoremen take over. The longshoremen assemble loads of regular cargo on the dock for placement in the holds of the ship. The longshoremen also use lumber, referred to as dunnage, which is used to separate cargo in the hold of the ship. The longshoremen assemble loads of dunnage, which they transport aboard ship. On evening shifts, when carpenters are not working, longshoremen on occasion will block or secure automobiles in the holds and build light fences around cargo, which work is usually performed by carpenters. Longshoremen must place and shift cargo in a manner that will permit proper shoring by the carpenters. On occasion, both are in the hold of the ship at the same time. For many years, the ILWU has claimed that lumber loads built by the carpenters should be the work of longshoremen, but this has been opposed by the Employers and the Carpenters. As detailed below, the longshoremen engaged in a work stoppage at the APL jobsite on July 29, 1961, because carpenters were performing the disputed work; and, on August 23, 1961, a similar stoppage occurred at Matson. At APL, the longshoremen resumed work 2 days later; and at Matson, the stoppage lasted about 21/2 hours. The Carpenters filed charges against the ILIVU on September 29, 1961.2 Applicability of the Statute Before the Board may proceed to a determination of a dispute, it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) of the Act has been violated. The ILWU and the Em- ployers contend that there is insufficient evidence to warrant such a 2 Contrary to the contention of the Employers and ILWU, the record shows that all of the parties were fully apprised at the hearing of the issues involved herein , and were not prejudiced by the wording of the charges and the notice of hearing. 681-492-63-vol 140-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finding .3 They concede that a work stoppage occurred at APL, but argue that it was not for an unlawful object, and that no work stop- page occurred at Matson. The evidence dealing with these two in- ci dents is as follows : The APL incident occurred on July 29, 1961. Uncontradicted testi- mony shows that on that date T. Silas, an ILWU business agent, whose authority is not in dispute, came aboard an APL ship and told a longshore gang boss that carpenters had been building lum- ber loads and that "the minute a load . . . is lifted aboard the ship," he was going "to knock the ship off." Soon thereafter, a lumber load was hoisted aboard ship and Silas went from one hatch to another telling longshoremen, "`[I'm] knocking the ship off." The longshore- men quit work. Immediately after learning of the work stoppage, Captain Dwyer, APL's port captain, met with Silas and Captain Whittaker, superintendent for Marine Terminals. Dwyer told Silas that the stoppage was illegal, and Silas replied that longshoremen would not hoist lumber loads assembled by carpenters, because such work was covered by the contract between PMA and ILWU. Dwyer told Whittaker to fire the longshoremen who had engaged in the work stoppage. Whittaker did so, and Silas proceeded to notify longshoremen to cease work on three other ships then at the dock. The longshoremen returned to work on July 31, 1961, after an ar- bitration proceeding to which the Carpenters was not a party. The Matson incident occurred on August 23, 1961. Based on the uncontradicted testimony of Remolif and Tolomei, we find that by 8:30 a.m. that morning, carpenters Remolif and Tolomei had as- sembled a load of lumber and transported it to the loading area of a ship at the dock. A longshoreman was asked to hoist the load aboard and replied, "We just had orders not to touch the lum- ber unless we make it up." At 11 that morning, in the presence of Remolif and Tolomei, at the loading area where these two carpenters had transported the lumber load at 8:30 a.m., Silas told the long- shoremen to hoist the load aboard, but not to hoist any more loads that carpenters "made up." The evidence also shows that after the APL stoppage, but prior to the incident at Matson, an ILWU pamphlet signed by Silas was distributed at the Matson dock and contained the following state- ment : "INSTRUCTIONS TO MEMBERS-All loads being built on the dock by other than Longshoremen are not to be hoisted aboard ship including lumber and dunnage built by carpenters." s The Employers also argue that the Board should find as a fact that a violation has occurred before it proceeds with a determination of a dispute we find no merit in this contention , as the Supreme Court has approved the Board's practice of a finding of "reason- able cause to believe " as sufficient to proceed in a 10 ( k) proceeding. N L.R.B v Radio & Television Broadcast Engineers Union Local 1212, etc ( Columbia Broadcasting System), 364 U S 573 (1961). INTERNATIONAL LONGSHORE bIEN'S, ETC., LOCAL 10 453 In our opinion, this record clearly demonstrates that the ILWU induced or encouraged longshoremen at the APL and Matson docks to engage in work stoppages and that the longshore employees did engage in such stoppages. By its very nature, the resultant stop- pages threatened, coerced, or restrained the respective Employers in- volved. It is equally clear that an object of the ILWU's conduct was to force the Employers to assign the disputed work to long- shoremen, rather than to carpenters. The contention that the ILWU, in instigating the work stoppages, was merely utilizing a traditional device to initiate a grievance does not alter its manifest object. On the basis of the entire record, we find that there is reasonable cause to believe that a violation of Section 8 (b) (4) (D) has oc- curred, and that the dispute is properly before the Board for de- termination under Section 10(k) of the Act. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirma- tive award of disputed work, after giving due consideration to various relevant factors. In the main, both the ILWU and the Carpenters rely upon the same factors.' 1. Certifications: In 1938, as the result of a union-authorization cardcheck, the ILWU was certified as bargaining representative on a multi-employer basis for all employees who "do longshore work in the Pacific Coast ports of the United States" (Shipowners' As- sociation of the Pacific Coast, et al., 7 NLRB 1002, 1041). In 1951, the Carpenters won a consent election which entitled them to en- ter into a union-shop agreement covering Matson's "shipwright- carpenters." (Case No. 20-UA-2698, not published in NLRB vol- umes.) In neither situation is the disputed work sufficiently described in the certification to warrant the Board attaching controlling weight to the certifications. 2. Contracts: Matson and the Carpenters have been in contractual relations since 1949, and the most recent contract contains a coverage clause which states : ". . . all carpentering work customarily per- formed by Carpenters in the employ of the Employer on Waterfront operations." APL and the Carpenters have had bargaining contracts since 1957, and the latest contract, as well as the prior ones, cover : d The Employers contend that the Board should make no positive assignment of the dis- puted work to either union for the reason that the Employers are neutral in the dispute. We find no merit in this contention, as the underlying rationale of the CBS case, supra, clearly indicates that the Court was laying down a guide for the disposition of all juris- dictional disputes and not simply those in which the employer is not neutral as to which claimant shall perform the disputed work. See Local 991, International Longshoremen's Association, AFL-CIO, et al. ( Union Carbide Chemical Company, etc.), 137 NLRB 750. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... the securing of cargo, shoring, blocking, tomming and sim- ilar operations, to the building of false bulkheads, false deck- ing, lining the holds and similar work done on items not an integral part of the vessel. The construction and repair of pallet boards, warehouse boards and similar items used in the handling of cargo. For about 14 years prior to 1957, APL subcontracted its carpenter work to various stevedore firms. These subcontractors had contracts with the Carpenters which contained the same coverage language as appears in the latest contract between the APL and the Carpenters, viz., the shoring of cargo. By virtue of their membership in PMA (Pacific Maritime Associa- tion), both APL and Matson have been in contractual relations with the ILWU, covering longshoremen, for the past 25 years. The basic Pacific Coast Longshore Agreement, 1951-53, covers the handling of all cargo and provides : "Existing practices as of September 1948, ar- rived at by mutual consent under which other workers not affiliated with the ILWU perform any of this work shall not be changed." On October 18, 1960, the PMA and ILW17 entered into a memorandum of agreement on mechanization and modernization. Section 11(2) (e) of this agreement provides : "Longshore work shall include the fol- lowing dock work ... (e) The building of all loads on the dock." The ILWU contends that none of the Carpenters' contracts covers the work in dispute. It argues that the Carpenters contract with APL refers to the shoring of cargo and makes no reference to assembling or building of loads of lumber; and that the Matson contract, which covers "carpentry work," is too ambiguous to cover the disputed work. It further contends that section 11(2) (e) of the October 1960 contract constitutes a clear assignment to it of the disputed work. The Carpenters argues that its contracts with Matson and APL cover the assembling of lumber loads, as that function is an integral part of shoring cargo, and the latter work is not in dispute.' It further argues that section 11(2) (e) of the October 1960 agreement between PMA and ILWU refers to the building of loads of cargo and not to lumber loads used for shoring cargo. The Carpenters relies on the testimony of Dale Collins, manager of industrial relations for APL and a member of the PMA negotiating committee, who testified : "To my recollection, during the entire negotiations, which occupied about six months, I cannot recall any specific discussion concerning the mak- ing up of loads of lumber as such on the docks. We were in my opinion referring to cargoes." James Robertson, secretary of the PMA, testi- 5In its brief, the Carpenters apparently includes in the category of disputed work the transporting of lumber loads from the place of assembly to the loading or hoisting area on the dock. Such an issue was not raised by the charges and notice of hearing. More- over, although testimony was given to describe the flow of materials, the transportation of lumber loads was not raised by the Carpenters , nor litigated. INTERNATIONAL LONGSHOREMEN'S, ETC., LOCAL 10 455 fled that throughout the years, including 1961 and 1962, the ILWU has always requested all dockwork not performed by longshoremen, including the assembling of lumber loads and the shoring of cargo, but that the PMA has always resisted this claim. The Carpenters' contention that the October 1960 agreement, which contained section 11(2) (e), did not become effective until April 1962, after the work stoppages, is without merit, as Robertson stated that the agreement, which also included a new wage rate, went into effect immediately. It is further argued by the Carpenters that, assuming the clause is applicable to lumber loads, it should not be given effect by the Board, as it was entered into while the Carpenters' contracts with the APL and Matson were still in force. The Employers take no position with respect to the interpretation of any of the contracts. They argue, however, that if the Board finds that either union is entitled to the work by way of a contractual right, "... it should be conclusive in the 10 (k) case regardless of all other factors. Similarly, if no contractual assignment exists but a valid contractual assignment is entered into in the future, that assignment should be conclusive regardless of other factors and regardless of the determination made herein." 6 Our examination and analysis of the pertinent provisions of the contracts leads us to the conclusion that none of them expressly covers the disputed work. It is apparent, however, that for many years APL and Matson have assumed that their contracts with the Carpen- ters included the disputed work and in fact such work has been per- formed by the carpenters. 3. The arbitration award: On July 30, 1961, the day following the work stoppage at APL, a 1-hour hearing was held before the area arbitrator under the PMA-ILW J contract. On the following day an interim award was issued directing the longshoremen to resume work and awarding the building of lumber loads to longshoremen. The Carpenters was neither notified of, nor represented at, this hearing. The Board has consistently held that arbitration awards cannot be given significant weight unless all parties to a dispute have partici- pated in the arbitration.' 4. Industry practice: The four major Pacific coast shipping ports are San Francisco, Seattle, Portland, and Los Angeles. In the latter three ports, longshoremen have always assembled all lumber loads. In one of these three ports (Los Angeles), the ILIATU uses a carpenter classification for employees performing such work. Prior to World 9 We reject the Employer's position in this regard as it constitutes a patent invitation for the Board to ignore the decisional standards in 10 (k) proceedings enunciated by the Court in the CBS case, supra. 9 International Union of Operating Engineers, Local 66, AFL-CIO (Frank P. Badolato Son), 135 NLRB 1392; United Bortherhood of Carpenters and Joiners of America, AFL- CIO, Local 1622 ( 0. R. Karst ), 139 NLRB 591. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD War II, longshoremen also performed the disputed work in San Fran- cisco. During the war, in 1944, as a result of the manpower shortage, carpenters began to perform this work and at present APL, Matson, and about four independent stevedore contractors still use carpenters, One ILWU witness testified that most of the building of lumber loads is performed by longshoremen in San Francisco, but the record in- dicates that he included in his estimate the building of dunnage loads-work which is normally performed by longshoremen. An- other witness testified that the only exception along the west coast where employees other than longshoremen perform such work is rn San Francisco, ',and there it's a confused picture." He was unable to give an approximation of the number of companies in San Fran- cisco that used longshoremen to assemble lumber loads, and stated that no survey has been made in this regard. It appears, however, that APL and Matson are the two largest shippers in the area. 5. Work skills: After inspecting the cargo in the hold of a ship to determine the quantity and size of lumber boards needed to shore up or secure the cargo, the carpenter returns to the clock and selects the lumber. As is frequently necessary, the carpenter joins boards to- gether to attain greater strength. He uses hammers, power saws, power drills, hand axes, cold chisels, and, at Matson, uses carpenter shop facilities. The carpenters at Matson have each served a 4-year apprenticeship. No similar testimony was adduced with regard to carpenters at APL. However, the record shows that some Matson carpenters have been employed at APL, and APL carpenters are re- ferred to as journeymen. Longshoremen use loads of lumber, called dunnage, in the holds of the ship to separate cargo as indicated above. The record indicates that assembly or selection of lumber is unnecessary, as the dunnage comes in unit or bundle loads. With respect to the comparative skills of a carpenter and a long- shoreman, Walter Nelson, president of ILWU, Local 10, testified : "Well, if you want to be technical about it, it's most definitely that a carpenter would be more alert on the thing, like that, but I don't say that a longshoreman couldn't pick out the size and type of lumber that is asked for." 6. Efficiency of operations: Since space in the hold of a ship is limited after cargo has been loaded, the proper sizes of lumber assem- bled and the sequence of the lumber in the load determine the speed and efficiency of the shoring operation. The carpenter also builds in the hold lockers for explosives, stalls for animals, wooden linings for grain, and supports for heavy machinery, all subject to inspection by the U.S. Coast Guard. Under these circumstances, we conclude that the selection of proper lumber on the dock by the same man who works in the hold tends to INTERNATIONAL LONGSHOREMEN'S, ETC., LOCAL 10 457 produce a more efficient work plan. Additionally, the mode of opera- tion after the work stoppages has had a significant bearing on effi- ciency. At APL prepackaged lumber is presently purchased and is hoisted into the hold by longshoremen. The carpenter, while in the hold, selects the pieces of lumber required and leaves lumber not needed in the hold instead of returning it to the dock. If the pre- packaged load lacks sufficient lumber, the carpenter waits until another load is lowered in the hold. When special loads are needed for par- ticular shoring work, prepackaged lumber is inadequate. At such times, the testimony shows, longshoremen are assigned to handle the lumber selected by carpenters. On some of these occasions the long- shoremen will stand by and allow the carpenters to make up the load, while on other occasions carpenters assemble loads which are then re- built by longshoremen. A carpenter testified that there have also been instances when a carpenter was asked by a longshoreman how long it had taken the former to assemble a special load, "... and then you tell them and they will just stand by for that amount of time, and we will take it to shipside." At Matson the carpenters have continued to assemble lumber loads, because they have refused to do any shoring work in the hold of the ship with lumber assembled by longshoremen. The loads now made by the carpenters are loaded on blocks, rather than on vehicles, as was the practice before the strike. These loads are left at the end of the dock, and the longshoremen haul them to the load- ing area. The Employers have suggested, and we agree, that a more efficient plan of operation would be to permit the employees who are to use the particular lumber on a ship to assemble the load on the dock. Conclusion as to the Merits of the Dispute In International Association of Machinists, Lodge 1743, AFL-CIO (J. A. Jones Construction Company), 135 NLRB 1402, the Board set forth certain criteria which it would consider in resolving the ap- propriate assignment of disputed work. It was noted therein that the decision in each case would be an act of judgment based upon commonsense and experience and a balancing of all relevant factors. It appears, from the record, that the certifications, contracts, and the arbitration proceeding do not decisively support the claim of either the Carpenters or the ILAVU. However, the work skills of the carpen- ters, the practice at APL and Matson, and the efficiency of operation manifest the superiority of the claim by the Carpenters to the work in dispute. We believe, on the basis of the entire record in this pro- ceeding, that the Carpenters is entitled to the work in dispute. Ac- cordingly, we shall determine the existing jurisdictional dispute, as to assembly of lumber loads for shoring of cargo, by deciding that car- penters, rather than longshoremen, are entitled to the work in dispute. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This award is confined to the assembling or building of lumber loads used by carpenters in the shoring of cargo aboard ships. It does not include the movement of such loads to the loading area on the dock or the handling of dunnage customarily performed by longshoremen. In making this determination, we are assigning the disputed work to employees of APL and Matson who are represented by the Carpenters' Union, but not to that Union or its members. Our present determina- tion is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings and the entire record in this proceeding, the Board makes the following determination of dispute, pursuant to Section 10 (k) of the Act : 1. Carpenters employed by American President Lines, Ltd., and Matson Terminals, Inc., in San Francisco , California, and who are represented by Shipwrights, Joiners, Boatbuilders and Caulkers, Local 1149, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are entitled to assemble or build lumber loads used by carpenters in the shoring of cargo aboard ships. 2. International Longshoremen 's and Warehousemen's Union, Local 10, is not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require the aforesaid Employers to assign the above work to longshoremen. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Longshoremen's and Warehousemen's Union, Local 10, shall notify the Regional Director for the Twentieth Region, in writing, whether or not it will refrain from forcing or re- quiring American President Lines, Ltd., and Matson Terminals, Inc., by means proscribed by Section 8(b) (4) (D ), to assign the work in dispute to longshoremen rather than to carpenters. MEMBERS FANNING and BROWN took no part in the consideration of the above Decision and Determination of Dispute. Local Union 825, International Union of Operating Engineers, AFL-CIO and Nichols Electric Company. Case No. 22-CD-52. January 7, 1963 DECISION AND ORDER On August 22, 1962, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the 140 NLRB No. 48.