Int'l Longshoremen's & Warehousemen's Union

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heavy-equipment operators, they comprise the Employer's entire op- erating complement. Having concluded that, the heavy-equipment operators are entitled to separate representation, we find that the laborers and truckdrivers also constitute an appropriate unit. + The Employer contends that it has 11 foremen who should be ex- cluded as supervisors from'any unit found to be appropriate. Operat- ing Engineers does not claim any of these individuals but Laborers refused to take a position with respect to the supervisory status of these individuals, who are in charge of the "crews which function 'at the various jobsites. It is clear from the record that these foremen possess authority to hire, discharge, transfer, and assign work to the employees in the crews assigned to them. We find that they are super- visors under the Act. Accordingly, we find that the following units are appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : (a) All operators of power-driven equipment, including crane, back' hoe, shovel, bulldozer, compressor and pump operators, and mechanics, but excluding all other employees, clerical 'employees, professional employees, guards, and supervisors as defined in the Act. (b) All laborers and truckdrivers, but excluding operators ' of power-driven equipment, mechanics, clerical employees, guards, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] 9 Sto2{m Valley Empire Electrio Association, 122 NLRB 92. International Longshoremen's & Warehousemen's Union; and Locals 6, 10, 34, 54, and 91, International Longshoremen's "& Warehousemen's Union and United States Steel Corporation. Case No. 2O-CD-136. Debember 15, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following the filing of charges by United States Steel Corporation (herein called the Employer) under, Section 8(b) (4) (D). The charges as amended allege, in, effect, that, Inter- national Longshoremen's & Warehousemen's Union and, its Locals 6, 10, 34, 54, and 91 (herein called the Respondents) induced employees of. the Employer and others to refuse to perform services for. "the Employer, and threatened and coerced it in order, to force the 150 NLRB No. 17. + INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 89 Employer to assign the work of unloading the vessel, SS Columbia, to members of the Respondents rather than to members of United Steelworkers'of America, AFL-CIO.' A hearing was held on August 4, 5, and 6, 1964, before Hearing Officer James S. Jenson. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs filed by the Respondents, the Steelworkers, and the Employer have been duly considered? Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber.panel [Members-Leedom, Fanning, and Jenkins]. `. Upon the entire record in this proceeding, the Board makes the following findings : I. THE EMPLOYER INVOLVED United States Steel Corporation is a New Jersey corporation engaged in the manufacture of steel and steel products at plants located throughout the various States of the United States, including the Pittsburg Works at Pittsburg, California. The Pittsburg Works is engaged in the manufacture of steel products from semifinished steel which it sells and distributes to its customers, including defense contractors. During the past year, in the course and conduct of its business operations, the Pittsburg Works received goods, supplies, and materials valued in excess of $1,000,000 which were shipped directly from sources outside the State of California, and shipped manufactured products valued in excess 'of $1,000,000 directly to points outside the State of California. We find that United States Steel Corporation is an employer engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED International Longshoremen's & Warehousemen's Union, and Locals 6, 10, ,34, 54, and 91, International Longshoremen's & Ware- housemen's Union, and United Steelworkers of America, AFL-CIO, and United Steelworkers of America, Local 1440, AFL-CIO, are ,labor organizations, within the meaning of the Act. 1 United Steelworkers of America and Its Local No. 1440 ( herein called the Steelworkers) were permitted to intervene and participate in the hearing 2 The Employer's request for oral argument is hereby denied as, in our opinion, the record, including the briefs, adequately presents the issues and positions of the parties. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE DISPUTE This dispute relates to the operation of unloading steel billets from the Employer's ship at the Employer's Pittsburg Works dock. The particular dispute before the Board in this proceeding involves alleged efforts by the Respondents to halt the Employer's operation and prevent members of the Steelworkers from performing this work which is claimed by the Respondents. From the early 1930's until the end of 1951, Columbia Steel Com- pany, a wholly owned subsidiary of United States Steel Corporation, operated the Pittsburg Works, as well as iron works at Ironton, Utah, and Torrance, California. In 1951, Columbia was merged into United States Steel Company, another wholly owned subsidiary of the Employer, and at the end of 1952, United States Steel Company was in turn merged into the Employer, United States Steel Corpo- ration, which now operates these three iron works, including the Pittsburg Works. In 1942 the Steelworkers was certified by the Board as exclusive representative of all the employees at Pittsburg Works, Pittsburg, California, Torrance Works, Torrance, California, and Ironton Works, Ironton, Utah .3 Since that time the Steelworkers has repre- sented these employees under successive collective-bargaining con- tracts. The current contract, which covers a unit of all production and maintenance employees at these locations, expires May 1, 1965.4 The Respondents have no contract with the Employer nor have they ever been certified for these employees. The Pittsburg Works is a large steel mill located in a 400-acre tract. It produces a full line of steel products except for plate and heavy products. The finished products are manufactured out of steel billets which, prior to February 15, 1964, were produced in Pitts- burg Works' own open-hearth furnaces. Prior to 1964 scrap metal was transported by the plant's railroad service to the open-hearth furnaces where it was melted down and molded into ingots ; the ingots were transported to the soaking operation, then rolled into billets. The billets were stored until transported to the finishing mills on the premises where they were heated again and made into finished products-sheet products, tinplate, coated and uncoated wire, and wire products. The steel in its various forms was transported from one process to another by overhead cranes, railroad cars, trucks, and tractors. For this purpose, the Employer had 95 cranes-80 3 Columbia Steel Company, 42 NLRB 1125. 4 The unit is described in the current contract as "all individuals occupying production, maintenance, and hourly rated nonconfidential clerical jobs employed in and about the Company's steel-manufacturing and by-product coke plants . . . [excluding ] individuals occupying salaried, watchmen , guard or confidential clerical positions, or supervisory posi- tions of foreman level and above." INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 91 inside overhead cranes with a capacity of from 25 to 90 tons, 5 out- side overhead cranes on runways ranging in capacity from 5 to 15 tons, and 10 mobile cranes which rotate 360° on an axis, the tonnage capacity of which is not revealed in the record. On February 15, 1964, the open-hearth furnaces of the Pittsburg Works were shut down in compliance with a regulation of the San Francisco Bay Area Air Pollution Control District. As a result, the primary rolling mill which produced the billets ceased operations. In order to continue production the Employer began to bring in all steel billets from its other plants throughout the country by rail and ship. Steel billets weighing 15 tons are now brought to the Pittsburg Works on the SS Columbia, a vessel currently owned and operated by the Employer. The Columbia makes a round trip between the east coast and the Pittsburg dock every 38 days, is used for the sole purpose of carrying such billets to the Pittsburg Works, and carries nothing on the return trip.-' The Employer installed two new rotating "whirley" cranes at the Pittsburg Works dock for the purpose of unloading the vessels trans- porting the steel billets. Railroad tracks have also been installed on the pier, and' when the vessel is not in port the same cranes are used to unload material from railroad cars which are run onto the pier. The vessel, as well as the railroad cars, are unloaded at the dock by a crew of crane operators and hookers, regularly employed in the pro- duction and maintenance unit represented by the Steelworkers. These employees perform the same work and utilize the same skills in these operations as they do in their regular assignments throughout the plant loading and unloading railroad cars, trucks, and tractors. Until 1956 ships owned by Isthmian Steamship Company, a com- mon carrier subsidiary of the Employer, occasionally called at the Employer's pier at the Pittsburg Works and were unloaded with shipside cranes by the Respondents and Pacific Maritime Association, of which Isthmian was a member. The dock was not used between 1956 and 1964. On January 30, 1964, shortly before the first scheduled landing of the SS Columbia at the Pittsburg Works dock, the Respondent International Union sent the Steelworkers a letter stating that the Respondent had learned that the work of unloading the vessel had been assigned to the Steelworkers' members but that the Respondent was the proper organization to represent the workmen on this job. Representatives of the Steelworkers and Respondent International met thereafter and discussed the disputed work assignment. When 5 It was anticipated at the time of the hearing that a second vessel owned and operated by the Employer would commence operations in September 1964 in the same manner as the SS Columbia, solely to transport steel billets from other plants of the Employer to the Pittsburg Works. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Steelworkers reiterated their determination to perform the work assigned to them, the Respondent's representative threatened to picket. During this same period the Respondent International also communicated with the Employer by wire and telephone declaring its desire to be assigned the work of unloading the ship. When the SS Columbia docked on February. 19, 1964; the Respond- ent Locals placed pickets at the gates of the Pittsburg Works, carry= ing signs with legends protesting the assignment -of the unloading work to the Steelworkers, and passing out leaflets to the employees presenting the Respondents' views on the disputed work assignment. The pickets remained at the gates for the duration of the unloading of the vessel. Thereafter, the SS Columbia was unloaded in April, May, and July by employees represented by the Steelworkers, and each time the Respondents picketed. The May landing of the SS Columbia was delayed 5 days because it was met by a picket boat of the Respondent as it entered San Francisco Bay. When the ves- sel did land, on May 13, 1964, the Employer's gates were. the scene of mass picketing which prevented some of the Employer's employees, as well as employees of its contractors performing work -on the premises, 'from going to work at the Pittsburg Works. The mass picketing was discontinued as a result of a 'State court proceeding. IV. CONTENTIONS OF THE PARTIES 1. The Employer contends that the work of unloading the ' SS Columbia should be awarded to its employees to whom it has been assigned, because the work is a phase of the manufacturing process, and the employees engaged in such work should be included in the production and maintenance unit for which the Steelworkers is the certified, contract representative. The Employer further contends that steelworkers are better qualified to perform the work than mem- bers of the Respondents, that the work is safely and more efficiently performed by its own employees, and that it is the area practice that such work be performed by an employer's own employees. 2. The Respondents contend that the unloading of ships with "whirley" cranes is typically and traditionally longshoremen's work and has been so recognized by the Board in cases such as International Longshoremen's and Warehousemen's Union, Local No. 19 (American Mail Line Ltd., et al.), 144 NLRB 1432; International Longshore- men's and Warehousemen's Union, et al. (Albin Stevedore Company, et al.), 144 NLRB 1443; and International Longshoremen's and Warehousemen's Union, et al. (Howard Terminal), 147 NLRB 359. Respondents contend they have jurisdiction over this work on the basis of their constitution covering all unloading of ships, and that the work can be more safely performed by longshoremen.' They point out that all unloading at the Pittsburg Works dock prior to INT'L LONGSHOREMEN'S & WAREHOUSEMEN'S UNION 93 1964 was done by. longshoremen, and contend that the work is not covered by the Steelworkers' certification or contract. 3. The Intervenor made 'substantially the same contentions as the Employer, and asserted, in addition, that award of the disputed work to members of the Respondents would result in a loss of jobs by members of Steelworkers but an award to Steelworkers would not result in any job. loss for longshoremen as they have never done this work. V. APPLICABILITY OF THE STATUTE Before the Board may proceed to a determination of dispute pur- suant to Section 10 (k) of the Act, 'it must be satisfied that there is reasonable cause to believe that Section 8(b) (4) (D) • has been violated. As described more fully above, representatives of the Respondent International Union notified both the Employer and the Steelworkers of its claim to unload the SS Columbia at the Employer's Pittsburg Works dock and informed the Steelworkers of its intent to picket if the work were assigned to members of the Steelworkers. The Respondent Locals' pickets were stationed at the plant gates during each of the ship's four calls with signs, and leaflets were distributed protesting unloading of the cargo by Steelworkers. In May the Respondent Locals met the SS Columbia in San Francisco Bay with a picket boat thereby delaying its landing, and the Respondent Locals' use of mass picketing prevented employees of the Employer and of its contractors from working. The picketing took place only during the times 'the ship was in port being unloaded by the mem- bers of the Steelworkers. In these circumstances, we find reasonable cause to believe that Respondents caused or were responsible for the work stoppages which occurred in May. We further find that an object of the stoppages was to force or require the Employer to assign the disputed work to longshoremen represented by Respondents, rather than to 'employees represented by Steelworkers. We conclude, therefore, on the basis of the entire record, that there. is reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred, and that the dispute is properly before the Board for determination under Section 10 (k) of the Act.6 VI. THE MERITS OF THE DISPUTE As stated in the J. A. Jones case,? we shall, pursuant to the Supreme Court's Columbia Broadcasting System decision," determine in each oLocal 991 , International Longshoremen's Association, AFL-CIO, et at (Union Carbide Chemical Company, Dav18ion of Union Carbide Corporation ), 137 NLRB 750. 4 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Con- struction Company ), 135 NLRB 1402. 8N.L R.B. v. Radio & Televtozon .Broadcast Engineers Union, Local 1219, etc. ( Columbia Broadcasting System ), 364 U S 573. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case presented for resolution under Section 10(k) of the Act the appropriate assignment of the disputed work only after taking into account and balancing all relevant factors. In the instant matter, the parties have urged, and we have con- sidered, many factors as relevant to the Board's determination of this dispute. Some of these factors weigh in favor of an award to longshoremen, some favor an award to steelworkers. The Respondents in their constitution assert jurisdiction over "all workers employed in the loading and unloading of vessels, and opera- tions incidental to such loading and unloading." Moreover, the unloading of ships on the Pacific coast is traditionally performed by longshoremen. However, this practice does not appear to be clearly established with regard to the unloading of cargo from a ship, where both the ship and cargo are owned by an employer, at a dock also owned by that employer and located on its premises, as in the instant case .9 The work in dispute is a new operation. Steel billets had never been unloaded from a ship at the Pittsburg Works dock prior to 1964, all such billets having been manufactured on the premises or received in, and "unloaded from, railroad cars and trucks. While members of the Respondents had at one time been employed by a common carrier subsidiary of the Employer in unloading a different type of cargo from ships owned by the subsidiary, they have received no such employment at this dock for the past 8 years, and the carrier is no longer a subsidiary of the Employer. Employees represented by Steelworkers, on the other hand, have been unloading the Employer's ship at the Pittsburg Works dock ever since that opera- tion began, and have done it safely and to the Employer's satisfac- tion. Award of the work to Respondents' members would therefore result in a further loss of jobs to Steelworkers' members, who lost 124 jobs when the billet-manufacturing operation was closed; whereas an award to Steelworkers' members would not entail a job loss to longshoremen because they have never performed this work. The Respondents have no contract with the Employer. Although the Steelworkers is the certified, contract representative of the Employer's production and maintenance employees, neither its cer- tification nor its contract specifically cover the work of unloading 6 The cases relied on by the Respondents in support of its contention that the Board has recognized its claim to this type of work, cited in paragraph IV, above, are dis- tinguishable because, enter alga, those cases involved unloading ships at commercial docks for shipping and stevedoring companies which were members of the Pacific Maritime Asso- ciation. The Employer herein is not a member of PMA, and the latter's collective- bargaining agreement with the Respondents recognizes an exception for the type of work involved in the instant case See the Pacific Coast Longshore Agreement, 1961-66, sec. 1.46, page 5, which provides as follows "Where a nonmember of the Association has con- trol over the cargo at its premises or on its vessel, such nonmember' s regular employees may perform work assigned to longshoremen herein while such cargo is out of the control of any member." INT'L LONGSHOREMEN 'S & WAREHOUSEMEN 'S UNION 95 ships with "whirley" cranes , jobs which came into existence after the certification was issued and after the current contract was exe- cuted. However, the job descriptions of the disputed work are substantially identical with those of other jobs included in the pro- duction and maintenance unit covered by the Steelworkers' contract. Moreover, although longshoremen on the Pacific coast are experi- enced in the unloading of ships with "whirley" cranes, the Employ- er's employees are experienced in the similar operation of unloading trucks and railroad cars with large rotating cranes, and in lifting the extremely heavy steel billets involved , whereas the longshoremen members of these Respondents are not. With respect to efficiency and economy of operation longshoremen would have to be transported a considerable distance for intermittent employment performing only work directly related to the unloading of the ship during its infrequent visits. On the other hand, the unloading of the ship merely complements the work of the steel- workers, as they are permanently and regularly employed on the premises in loading and unloading railroad cars on the same dock with the same cranes, and loading, unloading , and moving steel at other locations on the Employer's premises. In these circumstances ,'the Respondents' claim, based for the most part on its general jurisdiction , is outweighed by the factors pre- sented above which favor the Steelworkers ' claim. On the merits, therefore, we find that there are overriding factors in support of United States Steel Corporation's assignment of the disputed work to employees in its existing production and maintenance unit repre- sented by the Steelworkers. Accordingly, we shall award the work in the instant case to the production and maintenance employees represented by the Steelworkers rather than to longshoremen repre- sented by the Respondents . In making this determination, we are assigning the disputed work to employees represented by the Steel- workers' but not to that labor organization or its members 10 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 United States Steel Corporation's Pittsburg Works, Pittsburg, California, plant, currently represented by Local No . 1440, United to In reaching this determination , Member Leedom does not deem the loss-of-job question a material consideration. See his dissent in Philadelphia Typographical Union, Local No 2 (Philadelph4a Inquirer etc.), 142 NLRB 36, 44-47. 775-692-65-vol. 150 8 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Steelworkers of America, AFL-CIO, are entitled to unload the Employer's cargo from the Employer's ships at the Employer's Pitts- burg Works' dock. 2. Accordingly, International Longshoremen's & Warehousemen's Union, and Locals 6, 10, 34, 54, and 91, affiliated with International Longshoremen's and Warehousemen's Union, are not and have not been lawfully entitled to force or require United States Steel Corpo- ration to assign the unloading of the Employer's cargo from the Employer's ships at the Employer's dock at Pittsburg, California, to members of said organization. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Longshoremen's & Warehousemen's Union, and Locals 6, 10, 34, 54, and 91, all affiliated with International Long- shoremen's and Warehousemen's Union, shall notify the Regional Director for Region 20, in writing, whether or not they will refrain from forcing or requiring United States Steel Corporation to assign the work in dispute to their members rather than to employees of the Employer. Cosmodyne Manufacturing Company and International Brother- hood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local No. 40. Case No. 9-CA- 3101. December 15, 1964 DECISION AND ORDER On August 18, 1964, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fan- ning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 150 NLRB No. 1.