James J. Flanagan Stevedores

58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James J. Flanagan Stevedores and International Longshoremen's Association, Local 1924, AFL-CIO. Case 23-CA-2365 November 2, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On February 2, 1967, Trial Examiner William J. Brown 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 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 exceptions and brief, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial Ex- aminer only to the extent consistent with the follow- ing: The Trial Examiner concluded that Respondent violated Section 8(a)(5) and (1) of the Act by uni- laterally, and without prior bargaining with the Union, assigning to employees outside the bargain- ing unit work previously performed by employees in the appropriate bargaining unit. We do not agree. At the outset we note that the arbitration award of May 27, 1966, discussed in more detail in the Trial Examiner's Decision in the companion cases, James J. Flanagan Stevedores, 168 NLRB , held that the Respondent herein had not taken away from the Union the work of making work reports on Army ships in violation of the terms of the govern- ing collective-bargaining agreement. This award particularly affected Robert Alvin Bienvenu, Jr., who prior to the execution of the contract had prepared the Army work report for Respondent. Thus the arbitration award only interpreted the con- tract and did not clarify which employees the cer- tified unit encompassed. The record (we also rely on the record in the companion cases, James J. Flanagan Stevedores, supra, insofar as the evidence covers the events in- volved in the instant case) shows the following: On July 8, 1965, the Union was certified as the bar- gaining representative for a unit of steamship clerks, clerks, checkers, timekeepers, and tally- men.' It is noted that the certified unit by its terms covers "clerks" and "checkers." However, the word "clerks" as used in the certified unit descrip- tion is ambiguous . As the parties agreed to a stipula- tion for certification upon consent election in the representation case involving the Respondent, Case 23-RC-2436, at the hearing in that case no evidence was introduced with respect to what work the employees in the stipulated unit performed.2 In agreeing to the unit, the parties named four em- ployees, including James E. Phillips, but not Bien- venu. According to the uncontradicted testimony of James J. Flanagan, Jr., president of Respondent (corroborated by Wilton Bush , president of P.C. Pfeiffer Stevedoring Company), the work of a clerk and checker involves the physical counting of cargo from wharf to vessel and from vessel to wharf. At most , according to Pfeiffer's president, the work of such a clerk includes the transposing of certain figures showing the count of cargo, which figures the clerk turns into the office. Such a clerk and checker does not appear to prepare any reports in- cluding notations for labor, such as the Army work report and commercial work report and other re- ports prepared by Phillips prior to the execution of the contract. Even Bienvenu and Phillips them- selves viewed clerking and checking as the type of work described above.3 After the certification was granted, there were about 15 negotiation meetings , lasting approximate- ly 4 hours each, between the Respondent, Lykes Bros. Steamship Co., Inc., and P.C. Pfeiffer Company,' and the Union. According to the ' On November 16, 1965, in P C. Pfeiffer Co, Inc and James J Flanagan Stevedores , Cases 23-UC-9 and 23-UC-10, the Regional Director clarified such unit so that timekeepers were excluded 2 See transcript in Texas Stevedores Co , Case 23-RC-2435 through 2441. ' Bienvenu testified that "clerking a ship " involved taking identified cars or trucks of cargo from a pile or stack or bin and giving it to a driver or gang on the ship for loading on a specific spot on the ship. When he returned to the Port of Beaumont , his primary duty was to prepare the Army work report (which showed items entitling Respondent to special reimbursement, such as extra labor, etc ) and he was to help "clerk ships" if a ship was in port and if Phillips was busy According to Respondent's president , Bienvenu's name was placed on the eligibility list because he performed "clerking" duties, although for a minor portion of his worktime Phillips testified that his primary job was "working a ship" and he used any remaining time for typing the daily receiving report and for receiving cargo. The daily receiving report showed such information as how the cargo was brought to port, the amount and type of cargo, the destination port, the mark on the bag or drum , and number of units the cargo was over or short. He further testified that he "would clerk " the ship by a loading list, and "loading the ship" means "working the ship " Phillips also prepared the daily work report, similar to the Army work report, but only for commercial vessels Phillips collected the data for this report while he was "clerking a ship " He also prepared or signed several other docu- ments 4 The three employers present at the negotiations apparently bargained jointly because they wanted identical contracts 168 NLRB No. 9 JAMES J . FLANAGAN STEVEDORES 59 credited testimony of Respondent's president, cor- roborated by Wilton Bush, president of Pfeiffer Company, the Respondent's representative throughout the course of the negotiations stated that, as the companies could hire from the union pool after the execution of the contract, as of that time the Respondent would not employ monthly clerks. Bienvenu and Phillips were monthly clerks. On November 1, 1965, Respondent and the Union executed a contract to be effective until September 30, 1968.5 Section 1, subsections (A) and (B) of the contract describe the bargaining unit and the scope of work thereby encompassed as follows: 1. SCOPE OF WORK (A) The scope of work involved in this con- tract shall cover all Clerks, Checkers or Tal- lymen employed in checking , receiving or delivery of freight , or (Ship Stores when Clerk and Checker is used) from vessel to wharf or wharf to vessel, and such Clerks , Checkers and Tallymen as are employed in making delivery to and from drays and/or other conveyances, including railroad cars or transport companies. (B) The members of the Parties of the First Part shall have the right to employ members of the Parties of the Second Part , calling them by name to be used as regular salaried Wharf Clerks, extra Wharf Clerks as provided in Sec- tion 3 ; it being distinctly understood the em- ployer has the right during the life of this con- tract to call regular monthly men, extra Wharf Clerks by name and complete discretion as to the number of regular men to be carried on monthly payroll , varying the number as they see fit with the usual proper notice of fifteen days. Thus the contract by its terms does not cover the preparation of reports , such as the Army work re- port , commercial work report , and other reports, which Phillips and Bienvenu prepared as regular monthly clerks prior to the execution of the con- tract . In all the circumstances of this case, it ap- pears that the certified unit, which was stipulated by the parties, is not entirely clear as to which em- ployees the terms "steamship clerks, clerks, checkers and tallymen" include. It is clear that the parties negotiated a contract covering only clerks and checkers or tallymen engaged in counting cargo from vessel to wharf and wharf to vessel. This is not really inconsistent with the language used in the stipulated unit, which was certified . We therefore conclude that the parties , after lengthy negotiations, intended the contract unit, which reflected the stipulated and certified unit, to cover only clerks and checkers engaged in counting cargo. Moreover, at least 3 companies engaged in the negotiations for the contract herein , and the record shows that, as of the time of the hearing in the instant case, there were 22 individuals in the pool of clerks and checkers available for hire through the Union by any company which called for them. Thus it seems that after careful deliberation the Union and certain companies have established an industry practice in the Port of Beaumont. In view of the facts herein, the Board is reluctant to distrub such a relationship which the parties have arrived at deliberately. Ac- cordingly, in all the circumstances, we conclude that the appropriate unit, as stipulated by the parties and as described in the governing collective-bar- gaining contract, does not include employees en- gaged in the `preparation of reports, such as the Army work report, the commercial work report or daily receiving report, and the other special reports prepared by Bienvenu and Phillips prior to the ex- ecution of the contract. We therefore find that the Respondent did not violate Section 8(a)(5) and (1) of the Act by, unilaterally assigning such work to nonunit employees, and, accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. 5 For management , the contract is signed by Port Arthur Stevedores, James J. Flanagan Stevedores , and James J Flanagan TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard before the Trial Examiner at Houston, Texas, on December 1, 1966. The underlying charges of unfair labor practices had been filed on April 25, 1966, by the above-indicated Charging Party, hereinafter referred to as the Union; the complaint was issued June 16, 1966, by the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel and the Board, respectively, acting through the Regional Director for Region 23. It alleged, in addition to jurisdic- tional matter, that the above-indicated Respondent, hereinafter sometimes referred to as the Company, had engaged in unfair labor practices defined in Section 8(a)(1) and (5) of the Act. The Company's duly filed answer denies the commission of unfair labor practices and affirmatively alleges that the matters involved in the complaint were disposed of by prior Board and arbitra- tion decisions or, alternatively, amount to breaches of contract rather than unfair labor practices. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence' At the outset of the hearing the parties stipulated that the record in James J Flanagan Stevedores , Cases 23-CA-2282, and 23-CA-2282-2, may be considered by the Examiner as evidence bearing on the issues in the present case 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and argument on the issues. Subsequent to the close of the hearing briefs were received from the General Coun- sel and the Company and have been fully considered. On the entire record= herein and on the basis of my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT I find, in accordance with the pleadings and evidence, that Respondent is a corporation organized and existing under the laws of the State of Texas' where it is engaged, among other operations, in stevedoring operations in the ports of Beaumont, Port Arthur, and Orange, Texas. It maintains its principal office at Port Arthur and during the 12-month period preceding issuance of the complaint herein, admittedly a representative period, received more than $50,000 for stevedoring services performed for Texas firms which in turn received more than $50,000 from sales to or services performed for customers outside the State of Texas. I find, as Respondent concedes, that it is an employer engaged in commerce within the pur- view of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, in accordance with the pleadings and evidence herein, that the Union is a labor organization within the purview of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES On July 8, 1965, the Union was certified as exclusive representative of Respondent's steamship clerks, checkers, and tallymen as a result of a Board-conducted election held on June 29, 1965. Thereafter representa- tives of the Union and of Respondent and the other mem- bers of the multiemployer unit determined appropriate by the Board4 met in some 10 or 12 bargaining sessions. The collective-bargaining agreement was executed sometime about November 19, 1965, effective as of November 1, 1965, and to remain in effect until September 30, 1968. It contains, in article 1, a statement of the scope of the work involved in the contract as follows. "all Clerks, Checkers or Tallymen employed in checking, receiving or delivery of freight, or (ship Stores when Clerk or Checker is used) from vessel to wharf or wharf to vessel, and such Clerks, Checkers and Tallymen as are em- ployed in making delivery to and from drays and/or other conveyances, including railroad cars or transport compa- nies." It also contains in article 10, entitled "Disputes" a grievance and arbitration procedure required to be used in settlement of disputes involving interpretation or appli- cation of the terms of the agreement. While article 3 of the agreement establishes a rate for the position of monthly wharf clerk, article 1, B, provides that the employers have complete discretion as to the number of monthly salaried clerks to be employed subject to a 15-day notice in the event of reduction in such number. Since November 1, 1960, until his termination on December 8, 1965, James Phillips had been employed by Respondent as a salaried wharf clerk and had been en- gaged , among other duties , in the preparation of certain reports necessary or advantageous in Respondent's operations . These reports include a "Daily Receiving Re- port," "Daily Working Report ," " Extra Labor Report," and a "Port of Beaumont Report of Freight Unloaded on Piers." The preparation of these reports required sub- stantial amounts of his worktime. Since May 1965, until his termination on December 8, 1965, Robert Alvin Bienvenu , Jr., had been employed in Respondent's Beaumont operations in, inter alia, the preparation of a report known as the "Army Work Re- port. Bienvenu prepared all such reports for Respond- ent and the work involved occupied 90 percent of his working hours Bienvenu had voted without challenge in the election as had Phillips On November 23, 1965, Respondent delivered to Phil- lips and Bienvenu written notifications of their dismissal as of December 8, 1965. On the latter date Respondent assigned to supervisory and office personnel the work theretofore performed by Phillips and Bienvenu in the preparation of the above-mentioned reports. Union Representatives J.E. Williams, secretary-trea- surer of the South Atlantic and Gulf Coast District of the International Longshoremen's Association , AFL-CIO, and D . M. Barnes, president of Local 1924 , testified that in the negotiations leading up to consummation of the col- lective-bargaining agreement there were no negotiations involving daily receiving reports, extra labor reports, commercial work reports, or the Army work report. It also appears from the testimony of Respondent's pre- sident , James J. Flanagan, Jr., that no specific mention of such reports was made in the negotiations . He also testified, however , that in the negotiations the employer stated that with the effectiveness of the contract they would discontinue employment of monthly clerks in view of the fact that they could thenceforth call upon the Union's hiring hall to supply them as needed. This testimony is confirmed by that of Wilton Bush , president of P.C. Pfeiffer Company, who testified that he attended every meeting and that this was discussed at every meet- ing. Bush impressed me as a thoroughly credible witness. The complaint alleges that the Respondent unlawfully refused to bargain on December 8, 1965, by unilaterally reassigning the work involved in the preparation of the re- ports above-mentioned to supervisors and nonunit em- ployees. Respondent denies the commission of unfair labor practices and affirmatively asserts inter alia that (1) the issues involved were resolved on May 27, 1966, in an arbitration award following grievance procedures established in the contract , (2) that the issues were resolved by the Board's Decision in Case 23-UC-10, November 6, 1965, removing timekeepers from the unit, and (3 ) that the matters have been fully negotiated in the collective bargaining leading up to the agreement. 2 The transcript is corrected at p 7, I 23 by substituting "swear" in place of "sweat " 9 Respondent's corporate name appears to be James J Flanagan Shipping Corporation, Respondent maintains two operating divisions under the names of James J Flanagan Steamship Agent and James J Flanagan Stevedores. 4 The other employers involved are P C Pfeiffer Company and Lykes Bros Steamship Company This report is prepared for use of the Army under the terms of an un- derstanding with the Army's civilian officer in charge of Army shipping in the Port of Beaumont JAMES J . FLANAGAN STEVEDORES With respect to the arbitration award of May 27, 1966, it appears that the dispute therein considered related only to the matter of transfer of the work involved in prepara- tion of the Army work report. A second arbitration proceeding involving alleged reassignment of work in- volved in receiving cargo, resulted in an arbitrator's ruling on June 13, 1966, to the effect that the issue was not properly before him inasmuch as the parties had not ex- hausted their avenues of recourse under the agreement. I do not, however, see any materiality in the proceedings in Board Case 23-UC-10 which resulted in the exclusion of timekeepers from the unit, since the work involved in the preparation of the reports here concerned is clearly distinct from that of preparing reports of individual em- ployees' time. In the instant case the evidence adduced to support the allegation of the complaint consists of the testimonial ad- mission of Respondent's president that there were no negotiations over the work involved in preparation of the reports in question. Although I credit the testimony of Bush and James J. Flanagan to the effect that the bargain- ing sessions included repeated discussion of the em- ployers' purpose to discontinue the employment of monthly clerks, I cannot conclude from that that the Respondent's right to transfer the report preparation work here involved to nonunit personnel was bargained. The evidence clearly indicates that although the em- ployers forewarned the Union that they would not retain their permanent monthly clerks, they did not discuss with the Union the matter of removing the report preparation work from the unit. The work had for some substantial period prior to the negotiations been performed by unit personnel and the Respondent's action in transferring the work to supervisory and office personnel amounted to an unbargained erosion of the work theretofore performed by unit employees. By unilaterally reassigning work out of the unit, the Respondent has engaged in a refusal to bargain within the purview of Section 8(a)(5) of tha Act. There remains for consideration the Respondent's con- tention that the Board should refrain from adjudicating the issues ansing under the complaint because of the availability of grievance and arbitration procedures under the agreement. In this connection it appears from the ar- bitrator's decisions in the two proceedings discussed above that the question of the employers' right to assign the work of preparing reports to supervisory and nonunit personnel is justiciable under the contract's grievance and arbitration procedure, and that, in fact, an award has been rendered with respect to the work of preparing the Army work report. While it is the Board's policy to effectuate wherever possible the intent of Congress declaring final adjustment by the method agreed on by the parties to be 61 the desirable method for settlement of disputes involving interpretation or application of the agreement, see Dubo Manufacturing Corporation, 142 NLRB 431, it would not appear appropriate for the Board to withhold jurisdic- tion in a case like the instant one where the integrity of the bargaining unit itself is at stake Accordingly, I shall recommend that the work involved in preparation of the reports here concerned be assigned to employees covered under the collective-bargaining agreement and either referred to Respondent by the Union or retained on a monthly basis in accordance with the terms of the agree- ment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship 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 V. THE REMEDY In view of the findings set forth above to the effect that the Respondent has engaged in unfair labor practices I shall recommend that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the pur- view of Section 2(5) of the Act. 3. By unilaterally and without prior bargaining with the Union assigning to employees outside the bargaining unit work previously performed by employees in the ap- propriate bargaining unit, Respondent has engaged in un- fair labor practices within the scope of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]