Local 1291, Int'l Longshoremen's Association

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dispute. 1. Employees currently represented by Industrial Workers of Allied Trades, Local 199, affiliated with the National Federation of Independ- ent Unions, are entitled to perform all the electrical work connected with the construction of East End Synagogue, Long Beach, Long Island, New York. 2. Local 25, International Brotherhood of Electrical Workers, AFL- CIO, is not entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require D-Lion Construction Co., Inc., to assign the aforementioned work to a contractor employing its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 25, International Brotherhood of Electrical Work- ers, AFL-CIO, shall notify the Regional Director for Region 29, in writing, whether or not it will refrain from forcing or requiring D-Lion Construction Co., Inc., by means proscribed by Section 8 (b) (4) (D), to assign the work in dispute to employees represented by Local 25 rather than those represented by Local 199. MEMBER FANNING, dissenting : I would quash the notice of hearing in this proceeding for the rea- sons set forth in my dissenting opinion in Local 25, International Brotherhood of Electrical Workers, AFL-CIO (Barrow-Suburban Electric Co., Inc., et al.), 152 NLRB 531. Local 1291, International Longshoremen's Association, AFL-CIO and Pocahontas Steamship Company. Case No. 4-CD-119. May 18,1965 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10 (k) of the National Labor Relations Act, as amended, following a charge filed on August 24, 1964, by Pocahontas Steamship Co. (herein called Pocahontas or the Employer). The charge alleged that Local 1291, International Long- shoremen's Association, AFL-CIO (herein called ILA) had violated Section 8 (b) (4) (D) of the Act by picketing to encourage the employ- ees of Coslett and Sons, Inc. (herein called Coslett) to cease work for the purpose of forcing Pocahontas to change its assignment of the work of opening and closing hatches aboard its ships from the ships' 152 NLRB No. 69. LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 677 Screws, represented by National Maritime Union (herein called NMU), to members of the ILA. Pursuant to notice, a hearing was held before -Hearing Officer Milton S. Maclasky on November 5, 1964. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bear- ing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs have been filed by Pocahontas and the ILA and have been duly con- sidered by the Board. Upon the entire record in the case, the National Labor Relations Board 1 makes the following findings : 1. The business of the employer Pocahontas Steamship Company, a Delaware corporation , is a sub- sidiary of Consolidation Coal Company . Pocahontas is engaged in the shipment of coal produced at Consolidation's mines in the State -of West Virginia from ports in the Commonwealth of Pennsylvania to ports in the Commonwealth of Massachusetts . During the past year, shipments were valued in excess of $50,000. We find that Poca- hontas is engaged in commerce within the meaning of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved Local 1291 , International Longshoremen's Association , AFL-CIO, -and National Maritime Union , AFL-CIO , are labor organizations within the meaning of the Act. 3. The dispute a. The work in dispute The work in issue relates to the shipment of coal from pier 18, Port Richmond, Philadelphia, where the Pocahontas ships take on coal for shipment to Massachusetts. The pier is owned and operated by the Reading Company, and the coal is loaded onto the ship from railroad cars by equipment operated by employees of the Reading Company. Longshore work, such as shifting the vessel to facilitate loading, has been contracted by Reading to Coslett, whose employees are repre- sented by various locals of the International Longshoremen's Asso- ciation. Reading pays Coslett on a cost-plus basis and is not reim- bursed for the costs by Pocahontas. '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-member panel [Chairman McCulloch and Members Brown and Jenkins]. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In order to prepare a ship to receive coal or move out to sea, it is necessary to open and close the ship's hatches (known as "hatch and beam" work). The hatches on those Pocahontas ships that dock at pier 18 are opened and closed by turning an electrical switch .2 It is this work, the opening and closing of the hatches, which is in issue in this case. ILA demands that Pocahontas reassign this work from members of the ships' crews to ILA "hatch and beam" gangs, each consisting of six men and a foreman. b. Evidence of conduct violative of Section 8(b) (4) (D) Pocahontas ships first docked at pier 18 on October 2, 1960, and again on October 8, 1960, and March 10, 1964. On each occasion mem- bers of the ship's crew opened and closed the hatches. The dispute herein arose on April 16, 1964, when a Pocahontas ship docked at pier 18, and, as before since the hatches had already been opened by NMU crewmen, an ILA "hatch and beam" gang was not hired. On that last occasion, however, the ILA picketed the entrance to the pier with signs indicating that Pocahontas was unfair to the ILA. Cos- lett's employees refused to cross the picket line and loading ceased until Coslett hired an ILA "hatch and beam" gang. Similar incidents occurred when Pocahontas ships docked at the pier on May 16, June 17, and August 22. By letter dated July 30, 1964, the NMU advised the Board's Regional Office for Region 4 that it made no claim to the work involved herein. Pocahontas filed the instant charge on August 24. On petition of the Regional Director for Region 4, the U.S. District Court for the Eastern District of Pennsylvania granted an injunction under Section 10(1). The court rejected the ILA argument that, because of the NMU's disclaimer there was no dispute cognizable under Section 8 (b) (4) (D).-3 At the hearing before the Hearing Offi- cer, the NMU, through its attorney who attended as representative of the ILA, again stated that NMU did not claim the work in issue and indicated that it would not appear or otherwise participate in the proceedings. The parties stipulated to the various contracts in effect. Pocahontas, as a member of the Collier Owners' Association, is party to a collective- bargaining contract with the NMU covering the unlicensed deck department aboard each of its ships. The contract calls for a monthly salary and provides for the deck department to perform a variety of work including the opening and closing of hatches. Both Reading and Coslett are members of the Philadelphia Marine Trade Associa- a Uncontroverted evidence introduced on the record indicates that the entire job could be performed by one man in less than one-half hour 8 Sub nom. Samo ff v. Local 12 91, International Longshoremen 's Association, 57 LRRM 2393 (D C.E. Pa.). LOCAL 1291 , INT'L LONGSHOREMEN'S ASSOCIATION 679 tion (referred to as PMTA). PMTA's contract with ILA assigns to that Union "the hatch and beam" work. Pocahontas is neither a mem- ber of PMTA nor a party to the contract with ILA. c. Applicability of the statute Section 10 (k) of the Act empowers the Board to hear and determine the dispute out of which an 8 (b) (4) (D) charge has arisen. However, before the Board proceeds, it must be satisfied that there is reasonable cause to believe that Section 8 (b) (4) (D) has been violated. Although Respondent does not deny engaging in the picketing activity described above, it asserts that this conduct was not unlawful because the picket- ing did not arise from a dispute between two unions or groups of employees. Respondent relies on the NMU statement disclaiming interest in the work assignment and, based on those cases holding that our jurisdiction herein requires the existence of a dispute between two or more groups of employees actively competing for the work assign- ment,4 contends that Sections 8(b) (4) (D) and 10(k) do not apply. However, Respondent asks the Board to award the disputed work to longshoremen if a jurisdictional dispute under Section 10(k) is found to exist. Pocahontas urges, and we agree, that under the circumstances of this case and notwithstanding the NMU disclaimer, there is an active jurisdictional dispute between the unions under Section 8 (b) (4) (D).5 As the Supreme Court has noted, a jurisdictional dispute under Section 8(b) (4) (D) is a dispute between "two or more groups of employees' over which is entitled to do certain works For the fol- lowing reasons, we do not consider the asserted disclaimer by the NMU as eliminating the fundamental jurisdictional dispute between seamen and longshoremen as to who shall open and close ship hatches. This 4Highway Truckdrivers & Helpers, Local 107, Teamsters ( Safeway Stores, Inc ), 134 NLRB 1320 , Brotherhood of Teamsters and Auto Truck Drivers , Local 70, Teamsters (Hills Transportation Co.), 136 NLRB 1086; Local 1905 , Carpet, Linoleum & Soft Tile Layers (Southwestern Floor Co. ), 143 NLRB 251 ; Sheet Metal Workers International Assn., Local 272, etc. ( Valley Sheet Metal Company), 136 NLRB 1402 . Cf Penello v. Local 59, Sheet Metal Workers International Association, AFL-CIO ( E. I. Du Pont de Nemour8 & Co.), 195 F Supp 348 (D.C Del.). 6 We do not consider significant for jurisdictional purposes the fact that Respondent neither represents any of the employees of Pocahontas nor seeks to force Pocahontas itself to hire its members. It is well settled that Sections 8(b) (4) (D ) and 10 ( k) are not limited to competing groups of employees working for the same employer but also extend to attempts to force the indirect assignment of work from the employees of one employer to the employees of another . Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Company, Incorporated ), 141 NLRB '888; Inter- national Longshoremen's Association (Independent ) (Motor Transport Labor Relations, Inc ), 127 NLRB 35, 38 ( at footnote 2) ; ef. Local 19, International Longshoremen's Association ( Marine Association of Chicago ), 151 NLRB 89 ; Oil, Chemical, and Atomic Workers, etc., Local 8-575 (Merck & Co., Inc.), 151 NLRB 374. 6 N.L R B. v. Radio & Television Broadcast Engineers Union, Local 1212 ( Columbia Broadcasting System ), 364 U S. 573, 579 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work is now being clone by seamen as required by the collective- bargaining contract between the NMU and the Employer. It is one among many duties performed by seamen who are compensated on a monthly salary basis. It is not possible to allocate part of this monthly salary to the specific work of opening and closing hatches. The NMU's purported disclaimer therefor imposes no hardship and involves no sacrifice or "giving up" by its members. If it is effective, payment would simply be required for two groups of employees, while only one group does the work. Moreover, the seamen, despite the disclaimer, have not in fact refused to do the disputed work when ordered, and they cannot lawfully refuse because to do so would involve a breach of their collective-bargaining contract and possible infringement of applicable maritime law. The ineffectiveness of a disclaimer similar to that in this case to resolve a jurisdictional dispute is illustrated in the recently decided International Brotherhood of Carpenters and Joiners of America v. C. J. Montag cC Sons, Inc. case 7 where an employer sued a union tinder Section 303(a) (4) and (b) of the Taft- Hartley Act for having struck to compel the employer to assign cer- tain work to members of one union rather than to those of another. In finding that a jurisdictional dispute existed, the court said (335 F. 2d at 219-221) : We here take note of the Supreme Court's recognition that the draftsmen of the Taft-Hartley Act regarded jurisdictional dis- putes as a great evil and were bent upon doing all that could be done to cure that evil.... The fact that one union has the jobs and holds on to them in a polite, nonbelligerent manner while the other union uses the forbidden tactics in an effort to get them, or get some of them, does not mean that what Congress regarded as the evils of a jurisdictional dispute are not present. And the fact that the union which has the job is not unwilling that the) other union should come in and do some of the work and get paid for doing it, if the fQ'st union will still continue to get paid for the work, does not remove the situation from the category of jurisdic- tional disputes. [Emphasis supplied.] We hold that, under the circumstances of this case, the NMU's pur- ported disclaimer was not effective to extinguish the jurisdictional dispute between members of that labor organization and members of the ILA relating to the work of opening and closing ship hatches. We therefore find 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. 7 335 F. 2d 216 (C.A. 9). LOCAL 1291, INT'L LONGSHOREMEN'S ASSOCIATION 681 d. Merits of the dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various rele- vant factors. The following factors are asserted in support of the claims of the parties herein : (1) Skills, competence, and training Members of both unions have the ability to perform the work in issue. Although the ILA urges that its members have through years of experience developed the skills necessary to manipulate the various types of hatch coverings, it is clear that the work in the instant case (the operation of an electrical switch) does not call for the application of these traditional skills. (2) Collective-bargaining contracts Pocahontas and the ILA rely on the terms of their respective collective-bargaining contracts, both of which make reference to the work in issue. The ILA contract with PMTA specifically awards "hatch and beam" work to ILA. Although Coslett, which has been delegated the function of hiring longshore gangs on the Reading dock, is a member of PMTA, Pocahontas is neither a member of the Asso- ciation nor a party to its contract with the ILA. As a member of the Collier Owners' Association, Pocahontas is party to a contract with the NMTJ covering unlicensed deck department employees; this con- tract covers the performance of "hatch and beam" work by those employees. (3) Employer's assignment and past practice The record shows that with few exceptions, Pocahontas has always assigned the contested work to unlicensed deck department employees of its crews. Coslett, in accordance with its contract and longstanding history in Philadelphia, when it has "hatch and beam" work to do, assigns such work to members of ILA. A recent arbitration decision in which PMTA and the ILA participated resolved the issue of the composition of the ILA. "hatch and beam" gangs under the PMTA contract. However, no evidence was introduced to indicate that Poca- hontas was a party to this proceeding. (4) Efficiency and economy Evidence indicated that the disputed work can be performed by one man in less than a half hour and that both costs and loading time are reduced by the opening of the hatches by members of NMU prior to 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD docking. In addition, although its figures were not broken down to allow further analysis, Pocahontas introduced uncontroverted evi- dence that the cost of hiring an ILA "hatch and beam" gang was approximately $900. CONCLUSIONS AS TO THE MERITS OF THE DISPUTE On the basis of the record as a whole, and on an appraisal of all the relevant considerations, we believe that the work in dispute should be awarded to the members of the unlicensed deck department. The fact that Pocahontas' assignment conforms to its past practice, and its collective-bargaining contract with the NMU, the fact that the mem- bers of the unlicensed deck department have sufficient skill to do the work, and the consequent economy and efficiency of operation, lead us to conclude that Pocahontas' assignment of the work should not be disturbed. Consequently, we shall determine the present dispute by deciding that members of the Employer's unlicensed deck department aboard ship represented by the NMU rather than longshoremen repre- sented by the ILA are entitled to the disputed work. In making this determination, we are assigning the disputed work to the employees ,of Pocahontas who are represented by NMU but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings, the National Labor Relations Board hereby makes the following determination of the dispute. 1. Employees employed as members of the unlicensed deck depart- ment by Pocahontas Steamship Company, currently represented by National Maritime Union, AFL-CIO, are entitled to perform the opening and closing of cargo hatches ("hatch and beam" work) on ships operated by Pocahontas Steamship Company that dock at pier 18, Port Richmond, Philadelphia, Pennsylvania. 2. Local No. 1291, International Longshoremen's Association, AFL- CIO, is not and has not been entitled, by means proscribed by Section 8(b) (4) (D) of the Act, to force or require Pocahontas Steamship Company to assign the above work to its members. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 1291, International Longshoremen's Association, AFL-CIO, shall notify the Regional Director for Region 4, in writing, whether it will or will not refrain from forcing or requiring the Employer, by means proscribed by Section 8(b) (4) (D), to assign the work in dispute to longshoremen, rather than to ship's personnel.