Marine Cooks and Stewards Union

MARINE COOKS AND STEWARDS UNION 753 other hand, the dispute was essentially between Local 46 and Pre- fabricated over whether Prefabricated should operate in New York or in New Jersey, we arrive at the same conclusion for somewhat dif- ferent reasons. Local 46's complaint against Prefabricated was that it had changed its method of operations by moving to New Jersey with the effect of eliminating job opportunities for members of Local 46. A union's protest over such a change does not become a jurisdic- tional dispute simply because another group of employees is there- after obtained to do the work .8 To make relief available to employers under Section 8 (b) (4) (D) in such a situation would restrict unions from applying legitimate eco- nomic pressure in response to changes in production methods or to changes in location which employees believe are detrimental to their interests. Upon the basis of the foregoing, we conclude that Local 46's strike against subcontractors of the Charging Parties on March 8, 1965, did not violate Section 8(b) (4) (D) of the Act. The disputes herein are not, therefore, disputes within the meaning of Section 10 (k). Accord- ingly, we shall quash the notice of hearing.4 [The Board quashed the notice of hearing.] 8 See International Brotherhood of Electrical Workers, Local 292, AFL-CIO (Franklin Broadcasting Company (Radio Station WMIN) ), 126 NLRB 1212; National Association of Broadcast Employees and Technicians , AFL-CIO, et at. (Gordon Broadcasting of San Diego, Inc., d/b/a Radio Station KSDO ), 127 NLRB 1070; Chauffeurs, Teamsters and Helpers, Local 331, International Brotherhood of Teamsters, etc. (Bulletin Company), 139 NLRB 1391 4 Member Fanning concurs in this conclusion on the basis of his dissenting opinion in Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL-CIO (Arthur Tanners Company), 145 NLRB 1580, 1601. Marine Cooks and Stewards Union, Member of Pacific District, Seafarers International Union of North America, AFL-CIO and Pacific Maritime Association and Matson Terminals, Inc. and International Longshoremen's and Warehousemen's Union, Local 13, and International Longshoremen 's and Warehouse- men's Union. Case No. 21 -CD-194. January 11, 1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following a charge by Pacific Maritime Association and Matson Terminals, Inc., herein called PMS and Terminals, respectively, alleging that the Marine Cooks and Stewards Union, member of Pacific District, Seafarers International Union of 156 NLRB No. 81. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North America, AFL-CIO, herein called MCS, had violated Section 8(b) (4) (D) of the Act. A hearing was held before Hearing Officer Louis A. Gordon, on July 16, September 22 and 23, 1965. All parties appeared at the hearing 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 are free from prejudicial error and hereby affirmed. Briefs have been filed by the MCS, PMA and Terminals, and by the Intervenors, Inter- national Longshoremen's and Warehousemen's Union and its Local 13. Upon the entire record in this case, the National Labor Relations Board 1 makes the following findings : 1. The business of the Employer PMA is an association of employers engaged in the shipping, ste- vedoring and terminal business at ports in California, Washington, and Oregon. Its principal function is to act at the bargaining rep- resentative of its members. Among its members are Matson Naviga- tion Company, which operates vessels between Pacific Coast ports and Hawaii, and Matson Terminals, Inc., which is engaged in the terminal and stevedoring business in Wilmington, California. The members of PMA do an annual gross volume of business in excess of $500,000 and transport goods valued in excess of $50,000 annually for firms engaged in interstate commerce. PMA is an employer engaged in commerce within the meaning of the Act .2 2. The labor organizations involved The parties stipulated, and we find, that MCS and ILWU are labor organizations within the meaning of the Act. 3. The dispute A. The disputed work The parties stipulated to the following description of the disputed work : "With reference to passenger baggage, flowers and gifts on foreign flag ships at Matson berths in Wilmington, California : "(a) Embarkation: The hand handling and hand carting of the same from the point where received from the passenger to the mar- shalling area or to the point where the same is turned over to the foreign crew. ' 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 Zagoria]. a We take official notice that Matson Terminals , Inc., is a wholly owned subsidiary of Matson Navigation Company and that both Navigation and Terminals are engaged in commerce within the meaning of the Act ; International Longshoremen's and Warehouse- men's Union, Local 10 (Matson Navigation Company ), 140 NLRB 449. MARINE COOKS AND STEWARDS UNION 755 "(b) On debarking: The hand and hand carting of same from the point where received from the passenger or foreign crew or from customs or the marshalling area to the point where turned over to the passenger." 8 B. The background Although the cities of Los Angeles and Long Beach each have an independent port authority to supervise their separate but contiguous ports, we shall treat them as a single entity since PMA and the unions so consider them. This is evidenced by the fact that each union uses a single dispatch hall to service both ports, and treats labor disputes on a harborwide basis. Wilmington, where Navigation and Terminals have dock facilities, is within the Los Angeles segment of the harbor. Since the late 1940's personnel dispatched from the MCS hiring hall have handled passenger baggage on American flag vessels in the harbor. When foreign flag passenger vessels first began to dock in the harbor in the early 1950's, they were berthed in the Long Beach section, and the stevedore contractors obtained baggage handlers from the ILWU 'dispatch hall, apparently because longshoremen were already handling cargo on foreign flag vessels. Longshoremen presently.han- dle passenger baggage work on foreign flag vessels in the Long Beach area, and also, although the record is not entirely clear on the point, at all terminals in the Los Angeles area with the exception of the Terminals facilities at Wilmington. At Terminals' Wilmington facilities, MCS members were called to handle passenger baggage when the first foreign flag ship docked in 1956, presumably because they had handled the same work aboard American flag vessels at the same berths. On the infrequent occasions thereafter when foreign flag vessels were berthed at Terminals, MCS members were retained to service them. These ships were : MV IKungs- holm, once in 1965, and once each year from 1958 through 1964; SS Rotterdam, once in 1961; SS Seven Seas, once in 1964; and SS Staten- dam, once in October 1964.4 Thus, the situation in 1964 was that MCS handled passenger baggage on American flag vessels, wherever they docked in the harbor, and ILWU handled passenger baggage for all foreign flag vessels everywhere in the harbor except at Terminals, where the work in question was performed by MCS. ILWU first showed interest in obtaining work assignments at Terminals in early 1964, when Terminals assigned the baggage work on the SS Seven Seas, a foreign flag vessel, to MCS in accord with its past practice at that dock. ILWU took the matter of assignment to ' At times the handlers alone carry the baggage on board ; at other times they move it to a central point from which it is transferred by mechanical means between dock and ship. ' The only other foreign flag vessel to dock at Terminals since 1956 has been the RMS Andes, in 1962 , for which no dock labor was requested 217-919-66-vol. 15 6-4 9 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the area arbitrator who referred the dispute to the PMA-ILWU Joint Coast Labor Relations Committee for decision, where it remains unresolved. Thereafter, in October 1964, ILWU protested Terminals' assign- ment of the disputed work on another foreign flag vessel, the SS Sta- tend am, to MCS, and notified the Employer that it intended to claim the work when the ship returned on November 25. Following an arbitration proceeding under the ILWU-PMA contract, area arbitra- tor Germaine Bulcke, on November 16, awarded the passenger baggage handling to ILWU, for reasons to be discussed below. On Novem- ber 23, MCS advised Terminals and Navigation by telegram that it believed the status quo should be maintained until a tripartite arbitra- tion proceeding could be held. Replying on November 24, PMA advised MCS that while it would agree to tripartite arbitration, it considered Terminals bound, in the absence of an agreement to hold such an arbitration, to comply with the terms of the ILWU-PMA contract, including arbitrator Bulcke's award. Terminals instituted its compliance policy by requesting the ILWU dispatch hall to send longshoremen to handle the disputed work for the SS Statendam on November 25. It continued to use ILWU dis- patch facilities when the SS Ryndam docked for the first time on January 4, 1965, and when the SS Seven Seas returned to port on February 7, 1965. However, when the MV Kwn.gslwlm arrived again in March 1965, Terminals reverted to its former practice of obtaining passenger baggage handlers through MCS dispatch facilities s On April 16, MCS informed H. Vander Schalie, area industrial relations manager for both Terminals and Navigation, in a letter addressed to "Matson Steamship Company" that it intended to take all necessary action, including picketing, to retain job assignments historically performed by its members. Vander Schalie replied on April 29 that Navigation had never hired longshoremen to handle baggage on either foreign or domestic vessels; that its subsidiary, Terminals, acted independently as a contract stevedore in employing longshoremen for work connected with foreign flag vessels, under its arrangements with steamship companies; that Navigation did not control the outside contracts which Terminals executed; and that Terminals was compelled to abide by the arbitrator's award when em- ploying baggage handlers on foreign passenger vessels which had not previously called in the Port of Los Angeles. In a letter of May 6 addressed to Vander Schalie at Navigation, MCS threatened to picket the company's Wilmington dock facilities unless the work was assigned ' When ILWU protested this assignment , its grievance was referred to the Area Labor Relations Committee, before which it is still pending. MARINE COOKS AND STEWARDS UNION 757 to its members., Shortly thereafter, MCS advised counsel for PMA that it would refrain from economic action against Terminals because PMA had agreed to place the dispute before the National Labor Relations Board. C. Applicability of the statute The foregoing uncontested facts afford reasonable cause to believe that a violation of Section 8(b) (4) (D) has occurred.7 Accordingly, we find that the dispute is properly before the Board for determination under Section 10 (k) of the Act. D. Contentions of the parties PMA and Terminals take no position with respect to the merits of the dispute, but request the Board to reach a determination which will be compatible with the requirements of the status quo agreements in both the ILWU-PMA and MCS-PMA contracts. MCS contends that the factors of past practice at the Terminals berths, the skill and experience of its members, and the Employer's contractual assignment require an award to its members. ILWU contends that its written contract with the Employers covers the disputed operation, as evidenced by the arbitrator's award to which Terminals has adhered. It also argues that the factors of area prac- tice and its traditional jurisdiction further favor an award to its members. E. Merits of the dispute Section 10(k) of the Act requires the Board to make affirmative award of disputed work in a jurisdictional dispute case, which the Board will do after balancing all relevant factors in the light to common sense and experience." Certain factors, which the Board frequently considers, are not help- ful in determing the present dispute. Thus, neither union has been certified as the exclusive collective-bargaining representative of the employees engaged in performing the disputed work. The work requires no special skills, and has been performed by members of both 6 Prior to his exchange of letters with Vander Schalle, the harbor port agent for MCS had several phone talks with him , informing him that MCS sought jurisdiction of the disputed work at Terminals facilities in Wilmington . Vander Schalie admitted that he was acting on behalf of Terminals during these discussions , and the letters must be read in light of that fact. 7ILWU moved at the hearing to quash the charge on the ground that MCS, in directing its demand to Navigation, ordered Navigation to engage in a function and employ kinds of employees which it had never done, and because there was no evidence that an object of the MCS demand was to force or cause Terminals to take certain action . We deny the motion because the evidence relating to Vander Schalie' s dual position as a labor relations advisor for both Navigation and Terminals , the discussions and letters referred to above, and the relationship between Navigation and Matson. clearly indicate that an object of the MCS demand was to force or cause Terminals to assign the disputed work to its members 6 International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A Jones Con- atructson Company ), 135 NLRB 1402. "75 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions in an efficient manner. Although Terminals did assign the work initially to MCS under an oral agreement, it subsequently revoked its assignment for vessels which were new to the port, pursuant to the ILWU-PMA arbitrator's awards in favor of ILWU, and has, for purposes of this proceeding, declared itself neutral. We must therefore rely upon other factors in determining to which group of employees the disputed work should be awarded. Passenger-baggage handling on foreign flag vessels does not clearly fall within the jurisdiction of either union and is in effect "fringe" work to each union's basic jurisdiction. The parties are in agreement that the major issue centers on the interpretation of so-called status quo provisions in the respective contracts, which allow outsiders to continue performing work only if they had done so in the past. There- fore, the extent to which MCS had the right to perform the work in question at Terminals depends on whether past practice is determined ,on an individual-vessel basis, on an entire foreign-flag-line basis, or ,on a dock basis. MCS has no written contract with Terminals or with any other contract stevedore which services foreign flag passenger vessels in the harbor. However, MCS is a party to a contract with PMA and various American flag steamship lines, including Navigation, under which MCS performs, inter alia, the passenger baggage handling on American flag vessels. MCS predicates its claim to foreign flag vessel work upon an oral agreement with Terminals entered into when the first foreign flag vessel docked at Terminals in the late 1950's. The agreement purportedly provided that Terminals would abide by the wage and benefit terms of the MCS-PMA agreement, which it did until November 1964. MCS contends that it is entitled to all baggage work at Terminals by virtue of those sections in the written contract denominated "Stand-by Work and Rate of Pay," and "Handling Baggage" for freighter passengers. MCS further insists that past practice should be determined on a dock basis, without, however, point- ing to any pertinent provision of its written contract with the various American flag companies. ILWWWU admits that its current contract with PMA does not specifi- cally refer to passenger baggage handling, but contends that the. opera- tion is included in the undefined catch-all word "etc." in the following clause : This agreement shall apply to cleaning cargo holds, loading ships stores, handling lines, marking lumber, hauling ship, lash- ing, etc. An additional basis for its claim is section 1.11 of the agreement which provides that " . . . cargo ... at a dock ... under the control of any MARINE COOKS AND STEWARDS UNION 759 vessel operator, agent, stevedore, or terminal covered by this Agree- ment," is under ILWU jurisdiction. On the basis of these contractual provisions, ILWU argues that its members are entitled to perform all passenger-baggage handling on foreign flag vessels at Terminals except when there is a past practice for an individual vessel favoring MCS. ILtiVU introduced arbitrator Bulcke's award in the matter of the SS Statendam. Following a rule set forth by the Coast Labor Rela- tions Committee in a previous harbor dispute between PMA-ILWU over passenger baggage work on the foreign passenger vessel SS. Caronia,9 arbitrator Bulcke held that the application of the status-quo provision depended upon an individual vessel's past history within the port. Since the October 1964 visit of the SS Statendan?, was its first in the Harbor, there was no past practice; hence, the arbitrator reasoned, the assignment of personnel other than longshoremen would violate Section 1.11 of the agreement. The evidence proferred by ILWU to support this interpretation of past practice is somewhat inconsistent. For example, in explaining how past practice was intended to be applied under the status quo provision of the IL1\TU contract, a former ILWU official sometimes referred to a vessel-by-vessel basis and at other, times described the practice in terms of an entire foreign flag company. Moreover, there are indications in the record that PMA was not always in agreement with the ILWU interpretation of past practice on a strict vessel-by- vessel basis. Notwithstanding a lack of clarity in the explanations of the parties, we are persuaded that the more reasonable interpretation of the status quo understanding based on our discussion above requires us to define past practice on a vessel-by-vessel basis. We also note that if we were to adopt the MCS position that past practice is fixed on a dock basis, we might be leaving the ultimate assignment of passenger baggage handling to the Harbor Department of the city of Los Angeles, which has the authority to assign unoccupied berths at Terminals to incom- ing vessels.' It is our considered judgment that the desirablility of a uniform and predictable standard, past practice in the harbor, and contract interpretation require an award of the disputed work to ILWU, except on the MV Kungsholv?, and the SS Rotterdam, for which the MCS O This dispute involved a vessel which had changed from a berth at a Long Beach terminal, where longshoremen had performed the work, to one in Los Angeles where the work was claimed by MCS because MCS members were then servicing all American flag passenger vessels at that terminal. 10 Terminals holds its berths under a preferential berth assignment from the Harbor Department, which gives the Department the right to assign ships to Terminals docks which are unoccupied. While the record does not indicate that the Harbor Department has ever made such an assignment to a Terminals dock, there seems to be no question as to its right and power to do so. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past practice claim is undisputed ." In making this determination, we are assigning the controverted work on all foreign flag vessels which dock at Matson Terminals, Inc., in Wilmington, California, to -longshoremen represented by ILWU, and not to that union or its members. Similarly, we are assigning the disputed work on the MV Kung8holm and the SS Rotterdam, whenever they dock at Matson facilities in Wilmington, to personnel represented by MCS, and not to that union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the Act, and upon the basis of the foregoing findings, the Board makes the following determination of dispute : 1. Longshoremen in the unit represented by International Long- shoremen's and Warehousemen's Union, Local 13, are entitled to perform the work of handling passenger baggage as described above on all foreign flag passenger vessels which dock at the facilities of Mat- .son Terminals, Inc., in Wilmington, California, with the exception of the vessels MV Kungshol?n and SS Rotterdam, for which personnel in the unit represented by Marine Cooks and Stewards Union, Member of Pacific District, Seafarers International Union of North America, AFL-CIO, are entitled to perform the disputed work. As a conse- quence, MCS is not entitled*to' force or require the aforesaid Terminals or PMA to' assign the disputed work to its members or to personnel whom it represents by means proscribed by Section 8(b) (4) (i) and (ii) (D) of the Act, except on the vessels named above. 2. Within 10 days from the date of this Decision, MCS shall notify the Regional Director for Region 21, in writing, whether or not it will refrain from forcing or requiring, by means proscribed by Section 8(b) (4) (i) and (ii) (D) of the Act, the assignment of the work in dispute in a manner inconsistent with the above determination. u ILWU conceded MCS' superior claim to handle passenger baggage work on the MV Kungsholm since its members have performed the work exclusively since the vessel first docked . in Los Angeles in 1956. While ILWU did not similarly concede MCS' right to handle such work on the SS Rotterdam, it failed to dispute or grieve Terminals ' assign- ment to MCS when the vessel was berthed in the Harbor in 1961 on its only trip there. Heck's, Inc. and Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases Nos. 9-CA-3363 and 9-CA-3415. January 12, 1966 DECISION AND ORDER On May 4, 1965, Trial Examiner C. IV. Whittemore issued.his Decision in the above-entitled proceeding, finding that the Respondent 156 NLRB No. 73.