International Longshoremen's Union, Local 13

INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 451 I find that the Respondent in denying the Union financial records and informa- tion which pertain to the computation of the Christmas bonuses, under the circum- stances described herein, violated Section 8(a)(1) and (5) of the Act.6 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act by refusing to furnish financial records and information pertaining to the computation of Christmas bonuses upon the request of the Union, it is recommended that it cease and desist therefrom and that it supply such information to the Union. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effecuate the policies of the Act for jurisdiction to be exercised in this case. 3. By refusing to bargain in good faith with the Union the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 6 The statutory "obligation to bargain in good faith includes the duty of the employer to furnish to the Union relevant data to enable the representative effectually to bargain for the workers." Sinclair Refining Company v. N.L.R.B., 306 F.2d 569, 571 (C.A. 5). International Longshoremen's and Warehousemen's Union, Local 13, and International Longshoremen's and Warehousemen's Union and Princess Cruises Co., Inc. and Marine Cooks and Stewards Union, Seafarers International Union of North America, AFL-CIO and Pacific Maritime Association, and Jones Stevedoring Company, and Sierra Harbor Terminal Com- pany. Case 21-CD-218. October 25, 1966 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 Prin- cess Cruises Co., Inc.' (hereinafter called the Employer), under Section 8(b) (4) (D). The charges allege that International Long- shoremen's and Warehousemen's Union and its Local 13 (hereinafter collectively called the Respondent) threatened and coerced the IIt was stipulated that Princess Cruises Co., Inc., a. Panamanian corporation, and Princess Cruises Company , a Washington corporation authorized to do business in Cali. fornia, would be treated as a single entity for the purposes of this proceeding. 161 NLRB No. 49. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer in order to force the Employer to assign certain work to, longshoremen represented by the Respondent rather than to person- nel represented by Marine Cooks and Stewards Union.2 A hearing was held on May 17, 18, 19, 20, 23, 26, and 27, 1966, before Hearing Officer Barton W. Robertson. 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 Respondent, Princess Cruises, MCS, and PMA and its members Jones and Sierra have been duly considered. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. Upon the entire record in this proceeding, the Board makes the following findings : 1. TIIE EMPLOYER INVOLVED It was stipulated at the hearing, and we find, that the Employer is engaged in the business of operating the SS Princess Patricia, a ves- sel of Canadian registration, under a time charter from the Canadian Pacific Railway, as a cruise ship between the port of Long Beach, California, and certain west coast ports of Mexico. It was further stipulated that in the course and conduct of its business, Princess Cruises annually receives in excess of $1 million in passenger revenue. We find that Princess Cruises 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 The parties stipulated, and we find, that the Respondent and MCS are labor organizations within the meaning of the Act. 3 Marine Cooks and Stewards Union, Seafarers International Union of North America, AFL-CIO ( hereinafter called MCS ), was permitted to intervene and participate in the hearing Pacific Maritime Association ( hereinafter called PMA) and its members Jones Stevedoring Company (hereinafter called Jones ) and Sierra Harbor Terminal Company (hereinafter called - Sierra ) also sought, and were allowed , to intervene and participate in the hearing. 3 We take official notice that PMA is an association of employers engaged in the shipping, stevedoring, and terminal business at ports in California , Washington , and Oregon and that members of PMA do an annual gross volume of business of $500 ,000 and transport goods valued in excess of $50,000 annually for firms engaged in interstate commerce Marine Cooks and Stewards Union ( Matson Terminals, Inc ), 156 NLRB 753. It was stipu- lated that Jones , which is engaged in the stevedoring business in Long Beach , California, and Sierra , which is engaged in terminal operations in Long Beach , California , are mem- bers of PMA. INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 453 III. THE DISPUTE A. The work in dispute It is stipulated that the dispute concerns the assignment of the work tasks involved in the handling of the baggage of passengers embarking on or debarking from the vessel SS Princess Patricia between the point in the dock area where such baggage is received from or turned over to the passenger and the head of the gangway. B. The background In 1945 MSC, with the aid and support of the Respondent, obtained the right to have its personnel handle passenger baggage from and to the head of the gangway and the clock area on American flag vessels at the Los Angeles and Long Beach harbor complex,' and that right was, and is, secured under contract with PIMA. At that time no for- eign passenger ships had docked at Long Beach harbor. In the early 1950's when foreign passenger ships began to dock there, stevedoring contractors obtained baggage handlers to unload the passengers' bag- gage from the Respondent's dispatch hall without objection by MCS.S Although the TICS personnel were assigned to do this work on foreign ships in Wilmington harbor (which is part of the Los Ange- les harbor) on occasion, in all but two cases I the employer reassigned the work to longshoremen represented by the Respondent after the area arbitrator found that they were entitled to the work on the basis of past practice ' or on the basis of its contract with PMA.$ On or about August 26, 1965, 1\ICS, through its agent, Joseph Goren, telephoned Robert Conners, vice president and general man- ager of the Employer, and offered to furnish men to handle the bag- gage of passengers of the SS Princess Patricia when it docked at Long Beach harbor. Conners suggested that Goren contact its port agent, Transmarine Navigation Corporation, and Goren did so by a letter dated August 29. Sometime thereafter the Employer, rather ' We take official notice of our finding in Marine Cools cC Stewards (Matson Terminals), supia, that Los Angeles harbor and Long Beach harbor should be treated as a single entity. 5 Marine Cooks cC Stewards (Matson Terminals, Inc ), supra. 6 The work of handling passenger baggage on the SS Kungslaolm and the SS Rotterdam was assigned to members of MCS in Matson Terminals, Inc , supra. 7 The pork of handling passenger baggage on the SS Caronia was reassigned to long- shoremen represented by the Respondent after an Interim Award, dated April 20, 1964, was issued by Area Arbitrator Germain Ilulcke The work of handling passenger baggage on the SS Seven Seas was reterred b5 Respondent to the Coast Labor Relations Council for arbitration but an award has not yet issued. 3 The work of handling passenger baggage on the SS Statendam was reassigned to long- shoremen after an Interim Award, dated November 16, 1964, was issued by the area arbitrator finding that section 1 11 of the Respondent's contract with PMA, is hich pro- vided for the exclusive use of longshoremen represented by the Respondent , was applicable and no past practice of using nonlongshoremen had been established. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than Transmarine, entered into negotiations with MCS, and, although the record does not reveal their precise conversations, it is clear that they discussed the possibility that an assignment of this work to per- sonnel represented by MCS might cause a jurisdictional dispute with the Respondent.,, During this period of time, Transmarine entered into an oral con- tract with Jones to supply stevedores and stevedoring services, and with Sierra to operate the terminal at Long Beach. As members of PMA, both Jones and Sierra were obligated by a contract between PMA and the Respondent to assign longshoremen exclusively to handle the baggage of passengers embarking on or debarking from foreign flag vessels. Although a majority of the stock of Sierra is owned by Transmarine and Jones, Transmarine is not a member of PMA and has no collective-bargaining agreement with any labor organization. On December 2, the SS Princess Patricia arrived in Long Beach, and MCS personnel were ordered for baggage handling at the request of the Employer through its port agent, Transmarine. That same morning the Employer and MCS executed a contract providing for the exclusive use of personnel represented by MCS for handling passenger baggage. After the execution of the contract, Conners and Goren were informed that longshoremen represented by the Respond- ent were refusing to allow the MCS personnel to unload the passen- gers' baggage and were doing this work themselves.10 After being informed of the dispute, Goren agreed to allow longshoremen to do the work until he could bring his contract with the Employer to arbitration. Thereafter, longshoremen were ordered to handle pas- senger baggage on each of the next four occasions when the SS Prin- cess Patricia docked in Long Beach. On March 10, an arbitrator chosen by the Employer and MCS found in an oral award that the contract indeed obligated the Employer to use only MCS personnel to do this work and the Employer thereupon again reassigned the work. When the SS Princess Patricia next docked in Long Beach, MCS personnel unloaded the passengers' baggage. That same day counsel for the Respondent called the Employer's attorney and stated that if this work was not returned to longshoremen, the Y It may also be noted that Mr. Linder, who is vice president of the Employer and president of Transmarine , had a number of conversations with PMA's counsel concerning the possibility of avoiding a jurisdictional conflict between MCS and Respondent. '°Although the evidence is in conflict , the record indicates that the reason for the presence of longshoremen was that Transmarine had failed to inform Jones that its nor- mal practice , contractually provided , of ordering longshoremen from'the Respondent's dis- patch hall was not to be followed in this case . Therefore, Jones' dispatcher merely followed past practice and requested from the Respondent's dispatch ball a normal complement of longshoremen , including swingmen who could act as porters, without qualification, and when they appeared at the dock, they disputed the right of MCS personnel to do this work. INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 455 Respondent would picket the ship and do whatever else was neces- sary to regain the work, unless the dispute was submitted to the National Labor Relations Board for resolution. Respondent's counsel later sent a confirming letter of intention to the Regional Office of the Board. The Employer thereupon filed the charges presently before us. On March 31, 1966, the area arbitrator, in an arbitration brought by the Respondent against PMA, awarded the work to longshoremen represented by the Respondent on the ground that Jones and Sierra had control over the work and they were contractually obligated to assign the work to longshoremen. Notwithstanding this award, MCS personnel were assigned to handle passengers' baggage on the next and final call of the SS Princess Patricia at Long Beach. C. Contentions of the parties The Respondent contends that the complaint should be dismissed because there is no reasonable cause to believe that an unfair labor practice had been committed within the meaning of Section 8(b) (4) (D), but if the Board should decide otherwise and make a determina- tion of the dispute, the work should be assigned to longshoremen on the basis of past practices. MCS contends that the actions of Respondent are sufficient to make the statute applicable, and the Board should assign the work to its personnel on the basis of its contract with the Employer. The Employer proclaims neutrality on the issue of which group is entitled to the work, but does contend that the dispute is properly before the Board. PMA, representing itself, Sierra, and Jones, contends that an employer who enters into an established industry cannot make a work assignment that is incon- sistent with the established practices of that industry; but despite its contract with the Respondent, it refused to take the position that only longshoremen represented by the Respondent were entitled to do the work. IV. APPLICABILITY OF THE STATUTE Before the Board proceeds with a determination of the dispute pursuant 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 vio- lated. On the facts set forth in section III, B, `supra, there appears to be more than sufficient evidence to establish reasonable cause for believing that Respondent violated Section 8(b) (4) (D) of the Act. The Respondent did not dispute that it threatened the Employer unless it would reassign the work to longshoremen, but contends that the threat was only pro forma in that it was made at the' request of the Employer and, therefore, cannot be considered a threat within 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 8(b) (4) (D). The Respondent further con- tends that even if it did threaten the Employer, it did so because the Employer induced the threat by serious misrepresentations and when this was discovered, it withdrew the threat. These contentions, how- ever, are not supported by the record, for there is no evidence other than the bare assertions of Respondent's counsel to support them. Therefore, we 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." V. MERITS OF THE DISPUTE Section 10(k) of the Act requires the Board to make an affirmative award of disputed work in a jurisdictional dispute case after balanc- ing all relevant factors in the light of commonsense and experience.12 In the instant case, certain factors which the Board frequently con- siders are not helpful in determining this dispute. For example, neither union has been certified as the exclusive bargaining agent of the employees engaged in performing the disputed work; the work requires no special skills and has been performed by both longshore- men and MCS personnel in an efficient manner ; although the Employer assigned, reassigned, and then restored the work to the per- sonnel of its original assignment, it has for the purposes of this pro- ceeding declared itself neutral; and the work in dispute does not clearly fall within the jurisdiction of either union. In addition, although both unions have contracts, the Respondent with PMA, Jones, and Sierra, and MCS with the Employer,',' and arbitrators have made favorable determinations thereunder, neither the contracts nor the arbitrators' awards are of assistance in disposing of the dispute, for these contractual obligations as interpreted by arbitration are wholly inconsistent with each other.14 Therefore, we must make an affirma- tive award of the disputed work based on other factors. The question of whether longshoremen represented by the Respond- ent or personnel represented by MCS are entitled to the work of hall- "In light of this finding , it is unnecessary for us to consider whether there is cause to believe that the Respondent also violated Section 8 ( b) (4) (D) on December 2, by prevent- ing personnel represented by MCS to handle passenger baggage and force the Employer to reassign the work to longshoremen. 12 iV.L.R B v Radio and Television Broadcast Engineers Union , Local 1212, IBEW [ Columbia Broadcasting System], 364 U.S 573. 11 We take official notice of the fact that the Respondent filed a charge with Region 21 on May 27, alleging that the Employer violated Section 8 (a) (3) of the Act by entering into an illegal prehiring contract with MCS. iS We take official notice that in Matson, MCS not only admitted that it had an under- standing with the Respondent and PMA that work was allocated on the basis of past practice, but argued that this status quo understanding compelled a determination in its favor. INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 13 457 dling the baggage of passengers on foreign flag vessels between the dock area and the head of the gangway is not a novel one. In Marine Cooks & Stewards (Matson Terminals, Inc.), supra, the same ques- tion was brought before us by the same labor organizations concern- ing a dispute in the same harbor complex. There, based on past prac- tice defined on a vessel-to-vessel basis, we held that the longshoremen represented by Respondent were entitled to this work, except on two vessels where MCS's claim based on past practice was undisputed. However, MCS contends that even this factor is inapplicable for determining the present dispute, inasmuch as the dispute here arose on the very day that the ship first entered Long Beach harbor ; the Employer -had never before used this harbor; and neither Trans- marine nor Jones nor Sierra had ever handled a foreign flag vessel. Yet, the absence of past practice on the SS Princess Patricia does not compel nor even support the conclusion that the Employer can make a work assignment for baggage handling that is wholly at variance with the practice noted above of assigning longshoremen represented by the Respondent to do this work on all foreign flag vessels except for those two vessels where MCS personnel have always handled pas- senger baggage. And this is particularly so when the Employer has attempted to avail itself of the services of Jones, who, as a member of this established industry, was obligated by contract to adhere to the past practice of the industry of assigning this work on foreign flag vessels to longshoremen represented by the Respondent. Under all the circumstances, we conclude that the desirability of a uniform and pre- dictable standard that would result from the adherence to the past practice in the harbor complex requires an award of the disputed work to the Respondent. In making this determination, we are assign- ing the controverted work on the SS Princess Patricia, when docked in Long Beach, California, to longshoremen represented by the Respondent and not to that union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10 (k) of the Act, and upon the foregoing find- ings, the Board makes the following determination of dispute. Longshoremen in the unit represented by International Longshore- men's and Warehousemen's Union, Local 13, are entitled to perform the work of handling of the baggage of passengers embarking on or debarking from the vessel SS Princess Patricia between the point on the dock area where such baggage is received from or turned over to the passenger and the head of the gangway. -