General Truck Drivers Local No. 270

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Truck Drivers , Chauffeurs Warehousemen & Helpers, Local No. 270, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and W. L. Richeson & Sons, Inc. and Dockloaders and Un- loaders of Freight Cars and Barges, ILA Local Union No. 854, AFL-CIO, Party to the Dispute. Case 15-CD-76 August 1, 1967 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS , AND ZAGORIA This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by W. L. Richeson & Sons, Inc., hereinafter called the Employer, under Section 8(b)(4)(D). The charge alleges, in substance, that General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local 270, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter called Teamsters Local 2 i 0 or Respond- ent, threatened and restrained the Employer with an object of forcing or requiring the Employer to as- sign particular work to employees represented by Teamsters Local 270 rather than to employees represented by Dockloaders and Unloaders of Freight Cars and Barges, ILA Local Union No. 854, AFL-CIO, hereinafter called Dockloaders Local No. 854. Pursuant to notice, a hearing was held before Edward A. Champagne, Hearing Of- ficer, on April 12, 1967. All parties appeared at the hearing 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 af- firmed. The Employer and Dockloaders Local No. 854 have filed briefs which have been duly con- sidered. 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. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The Employer, a Louisiana corporation, is en- gaged in ocean freight forwarding services at the Poydras Street wharf, New Orleans, Louisiana. In I The crane operator is an employee of another employer and no claim i3 made with respect to this work the past 12-month period, the Employer has derived revenues in excess of $50,000 for freight-forward- ing services performed for customers, such as Goodyear Tire and Rubber Company, Sherwin- Williams Paint Company, and Dow Chemical Com- pany, who are themselves engaged in commerce within the meaning of the Act. The parties stipu- lated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Teamsters Local 270 and Dockloaders Local No. 854 are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. The Work in Issue; Background Facts The Employer is engaged in ocean freight-for- warding services at its dock on the Poydras Street wharf in the Port of New Orleans. In the course of its operations, the Employer receives all types of ocean freight for delivery to customers at designated locations. One such freight item received at the Employer's dock is newsprint, which is shipped in large rolls from Canada and/or Finland and destined for delivery to the Times- Picayune newspaper in New Orleans and two other customers of the Employer who are located in the State of New York. At issue in this proceeding is the right to perform the loading work in connection with the delivery of newsprint to the Times-Picayune. The newsprint designated for use by the Times-Picayune is stored by the Employer on the second floor of its dock facility. As its needs require, the Times-Picayune sends its trucks to the Employer's dock, where they are loaded by employees of the Employer. The loading operation is accomplished in the following manner. The rolls of newsprint are moved by means of a forklift from storage to a pickup area on the second floor. At this point, two plugs are inserted into the center of the roll and the roll is hooked to a crane, which transports it to the truck bed. The plugs are then removed and the loading operation is complete. The operation of the forklift and the in- sertion and removal of the plugs, called hooking-on and hooking-off, performed by the employees of the Employer, are the subject of the instant dispute. I For many years the Employer has utilized em- ployees represented by Teamsters Local 270 and Dockloaders Local No. 854 to perform various of 166 NLRB No. 115 GENERAL TRUCK DRIVERS LOCAL NO. 270 963 its loading and unloading operations. The Em- ployer's permanent work force includes employees who, among their duties, load and unload trucks and various types of vans, and who are represented by Teamsters Local 270.2 In addition, the Employer also regularly hires temporary employees, prin- cipally for the loading and unloading of rail cars. These employees are represented by Dockloaders Local No. 854. At all times relevant, the Employer has had collective-bargaining agreements with both Unions. Prior to October 1965, there was a ramp leading to the second floor of the Employer's facility and the rolls of newsprint were directly transported by forklift from the second floor storage area to the bed of the truck. However, in October 1965, the ramp was removed and the present method of loading was put into effect. Under both the old and the new systems of loading, the work here in dispute has been performed by employees represented by Teamsters Local 270.3 After the change in opera- tions, Dockloaders Local No. 854 informed the Employer that it claimed the work in connection with the forklift and the hooking-on and hooking-off operations. When this claim was rejected, Dockloaders Local No. 854, acting pursuant to its collective-bargaining agreement with the Employ- er,4 filed a grievance which resulted in a deter- mination by the contract's permanent disputes com- mittee awarding the operation of the forklift and the hooking-on operation to Dockloaders Local No. 854. Teamsters Local 270 is not a party to this col- lective-bargaining agreement and did not participate in the grievance proceeding. Following the award, Dockloaders Local No. 854 instituted a state court proceeding and later filed suit in Federal district court alleging that the Employer was in breach of its collective-bargaining agreement with Dockloaders Local No. 854 by refusing to assign the disputed work to its members.5 On February 28, 1967, the Employer advised Teamsters Local 270 President Winters that in order to protect itself from any lia- bility arising out of the suit pending in Federal dis- trict court, the Employer would not employ Team- sters Local 270 members to perform the disputed work after March 10, 1967. On March 2, 1967, Winters replied by notifying the Employer that Teamsters Local 270 continued to claim the disputed work and that, in support of this claim, it had filed a grievance under its contract with the Employer. On March 6, 1967, Winters sent a tele- gram to the Employer stating that if Teamsters Local 270 members were not permitted to continue performing the disputed work, they would strike and picket as of March 13, 1967. Thereafter a Sec- tion 10(1) injunction proceeding was instituted in Federal district court for the Eastern District of Louisiana, which resulted in a stipulation by the parties in which they agreed not to engage in acts of picketing pending the outcome of this proceeding. B. Contentions of the Parties Dockloaders Local No. 854 claims its members are entitled to the disputed work on the basis of its contract with the Employer, the award of the per- manent disputes committee acting pursuant to that contract, custom and practice at the Poydras Street wharf, and its traditional function of handling cargo on the docks. Teamsters Local 270 did not file a statement with the Board,'but at the hearing, it con- tended that its claim to the disputed work was sup- ported by its contract with the Employer, the Em- ployer's assignment, the Employer's past practice, and custom and practice in the area. The Employer supports the position of Teamsters Local 270 and in addition it argues that this claim is further sup- ported by a consideration of the skills and training involved, the nature of the work, the effect of the assignment upon employees, and efficiency of operations. C. Applicability of the Statute Before the Board proceeds with a determination of 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 violated. As stated above , the uncontroverted record testimony establishes that Respondent threatened to picket and strike for the purpose of inducing the Employer to continue its assignment of the disputed work to members of Teamsters Local 270. Ac- cordingly, we find, on 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 determina- tion under Section 10(k) of the Act. D. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after due consideration of various relevant factors.6 The following factors are asserted in support of the claims of the parties herein. 2 The Employer's permanent work force also includes a number of em- ployees who perform clerical duties and are represented by International Longshoremen's Association, Local No 655, AFL-CIO. The work per- formed by these employees is not involved in the instant dispute. 3 The record indicates that prior to 1965 certain of the employees per- forming this work were also members of Dockloaders Local No 854 4 The Employer is a member of the New Orleans Steamship Associa- tion which bargains with Dockloaders Local No. 854 on an association- wide basis. 5 The suit filed in Federal district court was still pending at the time of the instant hearing 6 International Association of Machinists, Lodge 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402. 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Certification and bargaining agreements The evidence indicates that there is no Board cer- tification relative to the disputed work. Both Unions contend, however, that their respective contracts with the Employer cover this work. The collective-bargaining agreement currently in force between Dockloaders Local No. 854 and the New Orleans Steamship Association, of which the Em- ployer is a member, grants recognition to Dockloaders Local No. 854 as the exclusive bar- gaining agent for employees performing various loading and unloading operations , including the loading and unloading of trucks , vans , and trailers on the wharves . The collective-bargaining agree- ment in effect between Teamsters Local 270 and the Employer provides , inter alia , that Teamsters Local 270 is the exclusive bargaining representa- tive of all employees in designated job classifica- tions , including those of forklift operator and helper, the same classifications involved in per- forming the disputed work. The foregoing establishes the existence of valid contractual claims to the disputed work by both Unions. Although the provision relied upon by Dockloaders Local No. 854 is more specific than the language employed in Teamsters Local 270's contract with the Employer, since both bargaining agreements clearly cover the disputed work, we find that this factor does not favor the claim of either Union. 2. Awards Dockloaders Local No. 854 contends that favorable consideration should be given to it on the basis of the work award decision handed down by the permanent disputes committee , acting pursuant to the grievance procedure in the collective-bar- gaining agreement between Dockloaders Local No. 854 and the New Orleans Steamship Association. The record shows, however, that this award is not dispositive of the issues because Teamsters Local 270 is not a party to the collective -bargaining agree- ment establishing the permanent disputes commit- tee and it has neither participated in such proceedings nor agreed to be bound by the decision of that body. Therefore, we give no effect to this award. 3. Skills and training and that these employees are experienced in the loading operation herein involved. The record further shows that employees represented by Dockloaders Local No. 854 are hired by the Em- ployer on a temporary basis with the result that dif- ferent personnel are employed on each occasion. This circumstance could require the Employer to instruct each work gang in its loading method. Ac- cordingly, we find that the factor of skill and train- ing favors the claim of Teamsters Local 270. 4. Area practice Both Unions rely upon area practice to support their respective claims. However, the testimony ad- duced at the hearing clearly indicates that the prac- tice in the Port of New Orleans is to employ mem- bers of Teamsters Local 270 to perform work similar to that in dispute here. In the face of such testimony, Dockloaders Local No. 854 was able to establish a different practice on the part of only one employer in the Port of New Orleans. Therefore, we find that this factor supports the claim of Team- sters Local 270. 5. Employer's past practice The Employer has for over 10 years employed members of Teamsters Local 270 to perform the loading operation in connection with the transfer of newsprint from its dock facility to the customers' trucks. At no time has the Employer assigned the disputed work or work of a similar nature to mem- bers of Dockloaders Local No. 854. Accordingly, we find this factor favors the claim by Teamsters Local 270. 6. Nature of the work The Employer cites as a separate factor the distinction in the regular job duties performed by its employees. Thus, it is the Employer's practice to utilize employees represented by Dockloaders Local No. 854 primarily for the purpose of loading and unloading freight cars, whereas employees represented by Teamsters Local 270 are principally engaged in the loading and unloading of trucks and vans. This distinction in the type of work regularly performed is based upon Employer and area prac- tices and to that extent has been considered and given effect elsewhere in this Decision. The parties concede that the work in dispute does not require special skills. However, the Employer contends that a certain amount of instruction is necessary before an employee can satisfactorily perform the work in question and this factor sup- ports the claim of Teamsters Local 270. The recorded evidence shows that the Employer has been using its regular employees , represented by Teamsters Local 270, to perform the disputed work 7. Traditional work jurisdiction Dockloaders Local No. 854 contends that the disputed work falls into the category of work which is traditionally performed by longshoremen on the docks. In essence , this contention is based upon the longshoreman's historical function of handling cargo on the docks. We can give no effect to this GENERAL TRUCK DRIVERS LOCAL NO. 270 965 factor, however, because both the Teamsters and the Longshoremen have a valid historical basis for claiming the right to perform work of this nature. 8. Impact upon employee job rights The Employer contends that a work award in favor of employees represented by Dockloaders Local No. 854 would result in the termination of certain of the employees now performing this work. As previously stated, the Employer maintains a per- manent work force which performs the disputed work. These employees are represented by Team- sters Local 270. The Employer also hires em- ployees represented by Dockloaders Local No. 854, but only on a temporary basis. As a con- sequence a work award in favor of employees represented by Dockloaders Local 854 would result in a gain in jobs for employees in that unit and a corresponding job loss in the unit represented by Teamsters Local 270. As the record indicates the Employer would be unable to absorb all of the replaced employees in its operations, the termina- tion of certain of the Employer's permanent work force would be a predictable result. Accordingly, we find that this factor supports the claim of Team- sters Local 270. unable to assemble a work crew in time to meet the requirements of its customers. Our consideration of this factor causes us to conclude that efficiency of operations supports the claim -of Teamsters Local 270. E. Conclusions as to the Merits of the Dispute Upon consideration of all pertinent factors ap- pearing in the entire record, we shall assign the work in dispute to the Employer's permanent em- ployees represented by Teamsters Local 270. The Employer's assignment of this work to its per- manent employees is consistent with its own past practice and the practices of employers in the Port of New Orleans. The assignment is further sup- ported by the factors of skills and training, impact upon employee job rights and efficiency of opera- tions. All of this demonstrates the superior claim of this group of employees to the work in dispute. Ac- cordingly, we shall determine the existing jurisdic- tional dispute by deciding that the Employer's per- manent work force, rather than its temporary em- ployees are entitled to the work in dispute. In mak- ing this determination, we are assigning the disputed work to employees of the Employer who are represented by Teamsters Local 270 but not to that Union or its members. 9. Efficiency of operations The Employer argues that efficiency of opera- tions would be impaired by an assignment in favor of employees represented by Dockloaders Local No. 854, because the use of temporary employees to perform this work is incompatible with the delivery demands of its customers. The record in- dicates that the requirements of the Employer's customers dictate when delivery is to be effected. With respect to the work in dispute, the Times- Picayune gives the Employer only about 45 minutes' notice prior to picking up a supply of newsprint and such pickups are made on an irregu- lar basis. No problems have arisen in the past as a result of the short notice given, because the Em- ployer has had its permanent employees available at all times to perform the loading operation. How- ever, the Employer asserts, based upon its past ex- perience, that if it were required to use temporary employees to perform this operation, it would be 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 the dispute: Employees employed by W. L. Richeson & Sons, Inc., New Orleans, Louisiana, who are currently represented by General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local No. 270, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, are entitled to operate the forklift and per- form the hooking-on and hooking-off operations in connection with the transportation of rolls of newsprint from the second floor of the Employer's Poydras Street dock facility to the trucks of customers for loading. 308-926 0-70-62