Longshoremen's Local 1576

LONGSHOREMEN'S LOCAL 1576 869 International Longshoremen's Association, Local 1576, AFL-CIO and International Longshore- men's Association, Local 329, AFL-CIO International Longshoremen's Association, Local 1576, AFL-CIO and Texas Contracting Company and Galveston Maritime Association, Inc. Cases 23-CD-1 11 and 23-CD-1 12 immediately upon receipt thereof, and be main- tained at the various aforesaid places for 60 con- secutive days. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered; defaced, or covered by any other material." TRIAL EXAMINER'S DECISION July 27, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On May 26, 1967, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. . The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's ex- ceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, International Longshoremen's Association, Local 1576, AFL-CIO, its officers , agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Substitute the following paragraph for para- graph 2(a) of the Trial Examiner's Recommended Order: "(a) Post in conspicuous places at the business offices and meeting halls of Respondent, including all places where notices to its members are customarily posted, copies of the notice attached hereto and marked `Appendix.'6 Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by an authorized representative of Respondent, be posted STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: Following the filing of charges on July 11, 1966 by International Longshoremen's Association, Local 329, AFL-CIO, herein called Local 329, and on July 12, 1966, by Texas Contracting Company, herein called Texas Contracting, and Galveston Maritime Association, Inc., herein called GMA, alleging a violation of Section 8(b)(i)(ii)(4)(D) of the National Labor Relations Act, as amended, by Inter- national Longshoremen's Association, Local 1576, AFL-CIO, herein called the Respondent or Local 1576, in connection with a work assignment or jurisdictional dispute, the Board, pursuant to Section 10(k) of the Act, conducted a hearing in Galveston, Texas, on September 13, 14, and 16, 1966, to determine the dispute. On January 11, 1967, the Board issued its Decision and Determination of Dispute.' In that Decision, it found that there was reasonable cause to believe that a violation of Section 8(b)(4)(D) had been committed by Respondent and that a jurisdictional dispute existed which was properly before the Board for determination under Sec- tion 10(k) of the Act. The Board then proceeded to deter- mine the merits of the dispute and found that Local 329 was entitled to perform all work of discharging crated green fruit when part of a mixed cargo from vessels stevedored by Texas Contracting and that Respondent was not entitled by means proscribed by Section 8(b)(4)(D) to force or require Texas Contracting to assign the above work to longshoremen represented by Re- spondent. The Board therefore directed Respondent to notify the Regional Director for Region 23, in writing, within 10 -days from the date of its Decision, whether or not it would refrain from forcing or requiring Texas Con- tracting by means proscribed by Section 8(b)(4)(D) to assign the work in dispute to longshoremen represented by Local 1576 rather than by Local 329. Respondent failed to notify the Regional Director of its intention to abide by the Board's Decision and Determination of Dispute within the period so prescribed. Whereupon, on February 17, 1967, the General Coun- sel issued a complaint alleging that Respondent had refused to comply with the aforesaid Decision of the Board.2 The pleadings further alleged that, since July 1, 1966, Respondent demanded that Texas Contracting as- sign the work of discharging bananas, green fruit and vegetables from oceangoing vessels at the Port of Gal- veston to employees represented by Respondent rather than to those represented by Local 329 and that, between July 11 and 15, 1966, in furtherance of its demand, by picketing and other means, Respondent induced and en- couraged individuals employed by Texas Contracting to 162 NLRB 878. Q At the hearing, I granted the General Counsel's unopposed motion to amend the complaint in certain minor respects pertaining to this allega- tion. 166 NLRB No. 104 308-926 0-70-56 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withhold their services from that employer, and by such conduct and other means, had threatened, coerced, and restrained Texas Contracting, all in violation of Section 8(b)(4)(i)(ii)(D) of the Act. In its answer, Local 1576 admitted various allegations in the complaint but denied the commission of any alleged unfair labor practices. As affirmative defenses to the latter allegations, Respondent asserted that it demanded that Texas Contracting assign the work of discharging bananas and green fruit to its members "because under the charter of its parent organization from whom both ILA Local 1576 and ILA Local 329 obtain the right to operate as a local union, [ILA] has granted the work of discharging bananas and green fruit in the Port of Gal- veston exclusively" to Respondent; that this work "has historically been done by banana locals [such as Local 1576] chartered by the International Longshoremen's Union;" and, that Respondent "cannot in good con- science comply with the decision and determination of the National Labor Relations Board of January 11, 1967 because the decision and determination are contrary to law, not supported by the facts and its enforcement would create havoc within the industry and would be destructive of the contractual provisions governing the conduct of the ILA Locals under the direction of the International and District Unions." A hearing in this matter was held before me in Gal- veston, Texas, on March 27, 1967, at which all parties were represented. Following the admission of the pleadings and other formal documents into evidence, the parties stipulated that the record made in the prior Sec- tion 10(k) proceeding should control this litigation and no further testimony was taken on the issues raised by the complaint and answer. However, each of the litigants preserved, on motions granted, the right to specify the portions of the transcript in the Section 10(k) proceeding upon which they relied to sustain their respective conten- tions in the instant proceeding, as well as their right to press their objections to the materiality and relevancy of the evidence adduced at the prior hearing, in their briefs submitted to me.3 Thereupon, Respondent moved to dismiss the complaint on the ground that it would offend the Constitutional precepts of due process for Local 1576 to be subjected to a trial under Section 8(b)(4)(D) before a Trial Examiner of the Board after the Board has already conducted a hearing in the Section 10(k) proceeding, made findings of fact, and assigned work to an adversary labor organization predicated upon those findings. In this connection, counsel argued that the statutory procedures for adjudicating jurisdictional disputes are tainted with a basic legal infirmity because the Trial Examiner, albeit an independent trial arm of the Board, is bound in a proceed- ing on a Section 8(b)(4)(D) complaint to respect an award of disputed work made by that tribunal in a previous Sec- tion 10(k) hearing.' I denied Respondent's motion at the hearing held before me, and I adhere to that ruling which was again challenged by Respondent in its advocative papers filed with the Trial Examiner. In my opinion, Respondent's protest is misdirected. In Section 10(k) of the Act, Congress essayed to perfect procedures to resolve amicably the various jurisdictional disputes which oft-times arise between competing unions over the award of claimed work. Realizing that these disputes may be composed at their inception by thoughtful consideration within the labor community, Congress provided under Section 10(k) for the voluntary adjustment of such controversies within the labor family. When these efforts fail, proceedings are had before a hearing officer of the Board to ascertain all the facts sur- rounding the jurisdictional squabble at which all parties are permitted to adduce material or relevant evidence to buttress their claims to the disputed work. The record is transmitted to the Board for a determination as to whether or not there is "reasonable cause to believe" that the charged union has violated the provisions of the com- panion Section 8(b)(4)(D). After the Board's determina- tion of the dispute, based upon the material and relevant evidence presented, and following an adverse award of the work in question, the charged labor organization is af- forded a 10-day period in which to signify its intention as to whether it will abide by the Board's work assignment. In the event that that union refuses to abide by the award, a formal proceeding is then instituted under Section 8(b)(4)(D) before a Trial Examiner to determine whether a cease and desist order, enforceable in the Federal courts, should issue against that union because, as a matter of fact and law, the union had utilized illegal means to obtain an unlawful object. During the course of the complaint proceeding, the respondent union is afforded full opportunity to introduce new or previously un- discovered evidence to rebut the Board's determination and award of work, and perhaps to advance more persua- sive legal arguments in support of its claim to the work in dispute. Failing to do so, and as heretofore indicated, the presiding Trial Examiner may not, under controlling legal precedent, review the Board's determination and award. In the instant case, Respondent, although given leave to do so, failed to come forth with any evidence, new or otherwise, to demonstrate that the Board was in error in the Section 10(k) proceeding by finding reasonable cause to believe that employees represented by Local 329 were entitled to perform all work of discharging crated green fruit when part of a mixed cargo from vessels stevedored by Texas Contracting, and that 1576's members were not If, indeed, the procedures about which Respondent complains constitute a deprivation of its right to a "day- in-court," despite its dual bite at the apple, I would sug- gest that an appeal for their correction be made to Con- gress, which has created them, rather than to the Trial Examiner or the Board, who are merely charged with ad- ministering them FINDINGS OF FACT 1. Upon the basis of the facts alleged in the complaint, admitted by Respondent, and found by the Board in the Section 10(k) proceeding, I find that Texas Contracting and GMA are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ti. As alleged in the complaint, admitted in the answer, and found by the Board in the Section 10(k) proceeding, International Longshoremen's Association, Local1576, AFL-CIO, and International Longshoremen's Association, Local 329, AFL-CIO, are The General Counsel, Respondent, and the charging employers filed briefs with this Trial Examiner which have been duly considered ' See N L R B v Local 450, International Union of Operating En- gineers (Stine Industrial Painters), 275 F 2d 408, 413 (C A 5), International Printing Pressmen and Assistants' Union o f North Amer- ica, AFL-CIO, e t a ! , 150 NLRB 842, International Die Sinkers Con- ference Lodge No 140 (Ladish Co ), 162 NLRB 528 LONGSHOREMEN'S LOCAL 1576 871 labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleged that, on July 1, 1966, Respond- ent, by and through its agents, demanded that Texas Contracting and GMA assign the work of discharging bananas, green fruit, and vegetables from oceangoing ves- sels at the Port of Galveston to employees represented by Respondent rather than to members of Local 329, and that Respondent, by picketing and other means, threatened, coerced, and restrained those employers, with a similar object in mind. It also alleges that the em- ployers involved have assigned this work to members of Local 329 ever since 1924, and that such assignment was in effect at the times material herein pursuant to a collec- tive-bargaining agreement between these parties. The complaint further charges that Respondent was not a signatory to any agreement with the aforesaid employers under which the disputed work had been allocated to it, that Local 1576 has never been certified by the Board as the bargaining representative of Texas Contracting's em- ployees, and that the Board has never issued an order directing this employer to bargain with Respondent as the agent for its employees . Finally, the complaint alleges that Respondent has failed and refused to comply with the Board's Decision and Determination of Dispute made in the Section 10(k) proceeding. Respondent's answer denied all but the last of these al- legations. In its Decision and Determination , the Board found, after a full assessment of the facts adduced in the earlier proceeding , that for some 25 years GMA had negotiated and had been a party to an agreement with the South Atlantic and Gulf Coast District, ILA, and certain affiliated locals, including Local 329, but exclusive of Respondent.5 A corporate entity styled as LeBlanc-Parr, Inc., a steamship agent which represents owners and operators of cargo vessels, is a member of GMA and a signatory to this contract. The stipulated record shows, and the Board found , that the officers of LeBlanc-Parr, Inc., own all of the stock of Texas Contracting which in turn does work solely for the former company. While Texas Contracting is not a signatory to the aforemen- tioned contract, it asserted in the prior hearing that it became privy to the agreement by the signature of its parent, LeBlanc-Parr, Inc., and the Board found as afact that for the past 40 years all longshore labor employed by Texas Contracting has come exclusively from Local 329 pursuant to this agreement. The Board further found that neither Texas Contracting nor LeBlanc-Parr , Inc., had a collective-bargaining contract with Respondent covering the disputed work. The Board found and the record establishes that Ralph Massey, president of the ILA District, notified Texas Contracting on July 1, 1966 , that a vessel was due to ar- rive in Galveston on July 10, carrying various edibles, and he demanded that the work of unloading them be awarded to Respondent's members. At 8 a.m. on the morning of July 11, longshoremen from Local 329 were dispatched tc the pier to perform the work. At the same time, Respondent stationed pickets at the dock with signs bearing the legend, "Texas Contracting Company Unfair to ILA Local 1576." Members of Local 329 respected the picket line and a work stoppage ensued . Thereupon, Local 1576 advised Texas Contracting that the former would withdraw the pickets if the fruit was not unloaded. Respondent's pickets were removed on July 12, but reap- peared the following day when it was discovered that fruit was being discharged from the vessel. On July 14, picket- ing ceased and the work was concluded. After a full consideration of all the facts and conten- tions presented in the Section 10(k) proceeding, the Board concluded that the assignment of work in dispute to Local 329 was consistent with Texas Contracting's established practice and the agreement existing between its parent, LeBlanc-Parr, Inc., and the ILA District, in- cluding Local 329, by which Texas Contracting had, over the years , considered itself bound. In light of the stipu- lated record made in the Section 10(k) proceeding and the Board's findings thereon, whose recitals of fact fairly set forth the events which transpired, as well as the absence of any new or previously undiscovered evidence to rebut the Board's findings, the only issue which is properly be- fore me is whether Respondent has been shown , by a pre- ponderance of the evidence on the record as a whole, to have utilized proscribed means to attain a prohibited end within the meaning of Section 8 (b)(4)(i)(ii)(D) of the Act. On the record as a whole, the answer to this inquiry seems clear and I find that Local 1576 demanded of Texas Contracting work to which it was not entitled under any contract or Board certification, and picketed that employer to force the assignment of that work to its members rather than to members represented by Local 329 who , by custom and contract, had previously per- formed those duties. In consequence of its demand and picketing, a work stoppage occurred among Texas Con- tracting's employees . I therefore find that Respondent in- duced and encouraged individuals employed by Texas Contracting to engage in a refusal in the course of their employment to perform services for that company, and that Respondent also threatened, coerced, and restrained Texas Contracting by the foregoing conduct, with an ob- ject of forcing or requiring Texas Contracting to assign the work of discharging bananas, green fruit, and vegeta- bles from vessels stevedored by that employer to em- ployees represented by Respondent rather than to mem- bers of Local 329. I also find , based upon Respondent's answer in this proceeding, that it has failed and refused to abide by the Board's work assignment previously made in the Section 10(k) proceeding. Conclusions Based upon the findings heretofore made, I conclude that Respondent sought by illegal means to obtain the as- signment of work to which it was not entitled, and that this amalgam of misconduct violated Section 8(b)(4)(i)(ii) (D) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Texas Contracting and Galveston Maritime Association, ' The contract in effect at the times material herein provided in per- tinent part that "At Galveston, the Texas Contracting Company .. will without discrimination hire through Local 329... " 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., set forth 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 thereof. Upon the foregoing findings and conclusions, I make the following: CONCLUSIONS OF LAW 1. The Respondent, International Longshoremen's Association, Local 1576, AFL-CIO, and International Longshoremen's Association, Local 329, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. Texas Contracting Company and Galveston Maritime Association, Inc., are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By engaging in picketing and other activities, and by coercing and restraining Texas Contracting, with an ob- ject of forcing or requiring Texas Contracting to assign to employees represented by Respondent the work of discharging crated green fruit when part of a mixed cargo from vessels stevedored by Texas Contracting rather than to employees represented by Local 329, Respond- ent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(b)(4)(i)(ii)(D) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. pies of the notice attached hereto and marked "Appen- dix."(' Copies of said notice, to be furnished by the Re- gional Director for Region 23, shall, after being duly signed by an authorized representative of Respondent, be posted immediately upon receipt thereof, and be main- tained at the various aforesaid places for 60 consecutive days. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 23 for posting by Texas Contracting Company, if willing, at all locations where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith.7 6 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the ...ords "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 7 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX THE REMEDY Having found that Respondent has engaged in certain unfair labor practices proscribed by Section 8(b)(4)(i)(ii)(D) of the Act, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is recommended that Respondent, International Longshoremen's Association, Local 1576, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from engaging in, or inducing or encouraging individuals employed by Texas Contracting Company, or any other person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of their employment to perform services, and from threatening, coercing, or restraining Texas Contracting Company or any other person where in either case an object thereof is to force or require Texas Contracting Company or any other person to as- sign the work of discharging crated green fruit when part of a mixed cargo from vessels stevedored by Texas Con- tracting rather than to employees represented by Re- spondent rather than to employees represented by Inter- national Longshoremen's Association, Local 329, AFL-CIO. 2. Take the' following affirmative action which I find will effectuate the policies of the Act: (a) Post in conspicuous places at the business offices and meeting halls of Respondent, including all places where notices to its members are' customarily posted, co- NOTICE To ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1576, AFL-CIO Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT engage in, or induce or encourage individuals employed by Texas Contracting Com- pany, or any other person engaged in commerce or in an industry affecting commerce , to engage in, a strike or a refusal in the course of their employment to per- form services ; or threaten, coerce , or restrain Texas Contracting Company or any other person ; where an object in either case is to force or require Texas Con- tracting Company or any other person to assign the work of discharging crated green fruit when part of a mixed cargo from vessels stevedored by Texas Contracting Company to employees represented by this union rather than to employees represented by International Longshoremen's Association, Local 329. AFL-CIO. INTERNATIONAL - LONGSHOREMEN'S ASSOCIA- TION, LOCAL 1576, AFL-CIO Labor Organization Dated By (Representative) (Title) LONGSHOREMEN 'S LOCAL 1576 873 This notice must remain posted for 60 consecutive compliance with its provisions, they may communicate days from the date of posting and must not be altered, directly with the Board's Regional Office, 6617 Federal defaced, or covered by any other material. Office Building, 515 Rusk Avenue, Houston, Texas If members have any question concerning this notice or 77002, Telephone 228-0611.