United Industrial Workers of North America

UNITED INDUSTRIAL WORKERS OF NORTH AMERICA United Industrial Workers of North America, Anchorage Longshore Unit , affiliated with Seafarers' International Union of North America , AFL-CIO and Albin Steve- dore Company and International Union of Operating Engineers , Local,302, AFL-CIO. Case 19-CD-149 May 21, 1970 By MEMBERS FANNING, BROWN, AND JENKINS DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the Nation- al Labor Relations Act, as amended, following a Section 8(b)(4)(i) and (ii)(D) charge filed on June 26, 1969, by Albin Stevedore Company.' The charge alleged that on or about June 22, 1969, United Industrial Workers of North America, Anchorage Longshore Unit, affiliated with Seafarers' International Union of North America, AFL-CIO,' caused a work stoppage, by the Employer's employees to force or require assignment of the work of operating whirly cranes at the Anchorage City Dock, Anchorage, Alaska, to members of the Seafarers rather than to members of International Union of Operating Engineers, Local 302, AFL-CIO.3 A hearing was held at Anchorage, Alaska, on August 21 and 22, 1969, before Hearing Officer Eugene R. Nielson.4 All parties appeared at the hearing and all were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing on the issues. Thereafter, the Seafarers and the Operating Engineers filed briefs in support of their positions.' 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. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds them free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the National Labor Relations Board makes the following findings: ' Hereinafter referred to as Albin or Employer. ' Hereinafter referred to as the Seafarers International Union of Operating Engineers , Local 302, AFL-CIO (hereinafter referred to as the Operating Engineers), was permitted to intervene and participate in the hearing " At the outset of the hearing , the Employer stated it wished to withdraw the charge A recess was granted to allow the presentation of this request to the Regional Director for Region 19 The Regional Director refused to approve the withdrawal noting that , in view of the Seafarers ' opposition to the request , the parties had not settled the dispute among themselves nor had they agreed to permit an outside body to resolve it The Employer took no exception to the denial of its request S The Seafarers also filed a motion to correct the official transcript in certain minor respects , together with affidavits of service on the parties In the absence of opposition thereto , the Seafarers ' motion was granted on November 4, 1969 633 1. THE BUSINESS OF THE EJ4PLOYER Albin Stevedore Company is a State of Washington corporation engaged at the Port of Anchorage, Alaska, in selling loading and unloading services to shipping companies. During its last fiscal year, Albin sold these services valued in excess of $50,000 to Sea-Land Freight Service, Inc. and other water carriers engaged in shipping cargo from points, outside the State of Alaska directly to the Anchorage City Dock and from the dock directly to points outside the State. The parties stipulated, 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 have stipulated , and we find , that United Industrial Workers of North America , Anchorage Long- shore Unit , affiliated with Seafarers' International Union of North, America , AFL-CIO, and International Union of Operating Engineers , Local 302 , AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute Since early May 1964, Albin has performed stevedor- ing services with its own personnel for shipping compa- nies in the State of Alaska. During a portion of this time, Albin also engaged in longshoring operations at the port in Seattle, Washington." Presently, however, its Seattle operations have been discontinued and the problem raised in this case is limited to the city dock at Anchorage, Alaska. In'connection with its Alaskan business, Albin has maintained collective-bargaining agreements with the Operating Engineers' and with the Seafarers. " The Board takes notice of a prior decision , International Longshore- men's and Warehousemen 's Union and International Longshoremen's and Warehousemen's Local No 19 (Albin Stevedore Company and Alaska Freight Lines, Inc ), 144 NLRB 1443, which related to Albin's Seattle longshoring business and which concerned a dispute between the Longshoremen and Warehousemen and the Operating Engineers over crane operation work at the port of Seattle Albin's most recent collective-bargaining agreement with the Operat- ing Engineers was effective from July 1, 1966, to July 1, 1969 Prior to the expiration date, and in accordance with the contract's provisions, the Operating Engineers gave notice to the Employer of its desire to modify this agreement The record indicates that both the Employer and the Operating Engineers consider the terms of this expired agreement of continuing force and effect until their ongoing negotiations culminate in a new collective-bargaining agreement In addition to recognizing the Operating Engineers as the representative of "all engineers , apprentices and mechanics employed for the purpose of operating or maintaing equipment used by the Employer in the loading or unloading of water vessels, trucks , railroad cars and other types of carriers," art II, Sec 2, of the 1966-69 agreement also provides that ' The Employer recognizes that the following equipment falls within the jurisdiction of the Operating Engineers Union but that the jurisdiction is not limited to the equipment listed herein hoisting equipment, mobile or stationary, all tractors, pumps, power plants, (Cont.) 182 NLRB No. 99 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As part of Albin \s loading and unloading services, various types of cranes located both on board ship and on the dock are used Thus, prior to 1965, the Employer's practice under its agreements with the unions was to divide the work of operating these cranes between the two groups of employees Operating engineers manned dockside whirly cranes and longshoremen han- dled special shipboard cranes Both types of cranes were used to maneuver conventional bulk and container- ized freight cargo " However, the large shipboard crane, mounted on rails fitted to the midsection of the vessel, was used primarily for containerized cargo stored in the ship's center hatches Because of certain automatic devices on this crane, its longshore operator could manip ulate the crane by himself with only the aid of a longshore hatchtender who functioned to protect the safety of shipboard personnel and cargo by guiding the crane operator so as to avoid "blind" hazards on and below deck Whirly cranes, on the other hand, require a crew of variously classified longshoremen to assist operating engineer operators by attaching crane slinglines to cargo and by holding loads level during movement between ship and dock In late 1965, Sea-Land Freight Service, Inc (the Employer's principal customer), converted its vessels for haulage of only containerized cargo With apparent regard for the possibility of changing work assignments in light of this development, the Operating Engineers filed a representation petition with the Board, Case 19-RC-3777, seeking generally all loading and unloading work performed by use of equipment, and excluding work performed by longshoremen under their existing contract with the Employer The seafarers intervened to dispute the appropriateness of the requested unit Noting that the basic concern of both unions was an anticipated future dispute over the assignment of crane operation work, the Regional Director" refused to enter- tain the issue citing the Board holding that "work assign- ment disputes are not properly matters for consideration and resolution in a representation proceeding " The Gas Service Company, 140 NLRB 445, 447 Thereafter, an election was held and the Operating Engineers cer tified on January 20, 1966, for a unit composed of All engineers, apprentices, and mechanics employed by the Employer in the operationg [sic] and/or maintenance of equipment used in the loading or unloading of water vessels, trucks, railroad cars, and other types of carriers in the Port of Anchorage, Alaska, excluding longshoremen and checkers, off ice clerical employees, professional employees, guards, and supervisors as defined in the Act steam boilers compressors locomotives derricks loaders of all types all types of cranes used in the loading or unloading hoisting or placing of any and all building materials ore aggregate oil and wood products machinery or materials conveyed by water vessel trucks or railways [Emphasis supplied I Containerized cargo refers to vans or flatbeds 35 feet in length which are suitable for transporting on land via railroad cars or trailer chassis pulled by tractors " Unpublished decision dated November 30 1965 determining the appropriate unit and directing an election On May 10, 1966, Sea-Land installed a hammerhead crane on the Anchorage city dock This crane, also referred to as "Super-Sam," is similar to the shipboard crane except that it is capable of servicing an entire vessel from its dockside location The Seafarers immedi- ately claimed jurisdiction to operation of the hammer- head crane and, with the Employer's announced intention of awarding jurisdiction to the Operating Engineers because of the Board certification, supra, a Section 8(b)(4)(i) and (ii)(D) proceeding developed In its decision issued January 18, 1967,"' the Board concluded that longshoremen were entitled to operate the hammerhead crane Thereafter, Sea-Land vessels at the Anchorage City Dock were loaded and unloaded by use of their shipboard cranes and by use of the dockside hammerhead, crane, both manned by members of the Seafarers Early in 1969, Sea-Land modernized its vessels with the removal of cranes aboard ship to allow room for an increased number of containerized cargo vans Whirly cranes, manned by members of the Operating Engineers, were substituted for shipside cranes in loading and unloading procedures 11 About January 28, 1969, the Seafarers began a training program for its members in the operation of whirly cranes 12 During subsequent months, various rumors circulated that longshoremen wanted the job of operating whirly cranes Finally, on June 13, 1969, the Seafarers made a written demand upon Albin for jurisdiction, and advised that it "will seek such remedies as are legally available to it under the law and its agreement with you, including financial liability to the Anchorage Longshore Unit and its mem- bers for lost wages and your failure to bargain in good faith, and persistent and willful violation of the agree ment "13 On June 22, 1969, when members of the Operat- "' United Industrial Workers of North America Anchorage Longshore Unit Affiliated with Seafarers International Union of North America AFL-CIO and Albin Stevedore Company 162 NLRB 1005 11 The effect of this modernization program in terms of longshoreman employment has been the elimination of two men with the removal of ships cranes and the reduction of crew size aboard ship by two because of the method of containerization itself In addition of specific job loss the mechanization and modernization program has resulted overall in turning ships around faster even though they are transporting larger numbers of vans with a consequent loss of employment hours for all longshoremen 12 The Employer rented a whirly crane from the port of Anchorage for this purpose and the Seafarers reimbursed Albin for rental charges and also assumed liability for the deductible in Albin s insurance policy covering crane operation The training program itself was conducted by a representative of the whirly crane manufacturer eight longshoremen participated in and completed the program 13 Albin s current collective bargaining agreement with the Seafarers is effective July 1 1966 to June 30 1971 It specifies that The provisions of this agreement shall apply to the handling of cargo and its transfer from vessel to and including shorting and piling of cargo on the dock the transfer of cargo from vessel to railroad car van flatbed barge warehousing or vice verso [sic] when such work is performed by longshoremen employed by the EMPLOYER The status quo to the scope of longshore men s work shall be maintained [Emphasis supplied ] Sec I of this contract defines longshoremen as Men in the following occupations are included and considered as longshoremen for the pur pose of this Agreement-i e Slingmen Holdmen Longshore Walking Bosses Hatch Tenders Winch Drivers Jitney Drivers Lift Operators Boom Men Dock Men Checkers Donkey Drivers Warehousemen Freight Handlers and/or Cranemen Bull Dozer operators when bull doz UNITED INDUSTRIAL WORKERS OF NORTH AMERICA 635 ing Engineers began preparing to unload a Sea-Land vessel with a whirly crane, the Seafarers called a 3- to 4-hour work stoppage by longshoremen in furtherance of its jurisdictional claim 14 Subsequently, Albin filed a charge with the Board on June 26, 1969, alleging a violation of Section 8(b)(4)(i) and (u)(D) of the Act B The Work in Dispute The dispute arises from competing claims by the Seafarers and the Operating Engineers, as bargaining representatives from Albin's employees, to the operation of whirly cranes at the Anchorage city dock in Alaska There are four whirly cranes on the Anchorage city dock, installed around 1962 when construction of the dock was completed The whirly crane has a movable boom and rotates through 360 degress on its base It does exactly the same job as the hammerhead crane, except that it performs about half as fast Although operation of the hammerhead crane is fairly easy because of its limited rotation swing and fixed boom, the more difficult operation of the whirly crane is considerably simplified by a luffing device which automatically levels each load when the boom moves up and down Generally, whirly cranes perform a greater variety of tasks around the dock and, while operating engineers have run these cranes up to the present time, increasing use is currently being made of them for new methods of cargo handling in connection with ships calling at the port It is this loading and unloading aspect of their work which is now being sought by longshoremen C The Contentions of the Parties 1 The Employer (Charging Party) Albin prefers that the work in question be assigned to operating engineers Its position rests on the Board's certification which Albin interprets as requiring this assignment, and also because of its contract with the Operating Engineers Moreover, Albin points out that past practice has always been to have operating engineers run whirly cranes and that there is a greater supply of competent and experienced operating engineer operators available 2 The Seafarers Overall, the Seafarers contend that, inasmuch as whirly cranes are now being used to perform traditional longshore work as a result of mechanization and modernization in the shipping industry, and have in fact replaced shipboard cranes which were operated by longshoremen, it is entitled to the work assignment Furthermore, there are provisions in its contract with the Employer clearly governing and requiring assign- ment Finally, while there is no area practice significant for either of the contending labor organizations when ers or cranes are used aboard ship [Emphasis supplied 1 '" Specifically it appears from the record that for a number of years two particular operating engineers have done most of the Employ er s whirly crane jobs Longshoremen were prepared to allow these two individuals to continue working the cranes without protest but they were not willing to permit the Employer to train replacements for them It was the fact that a new operating engineer started to unload cargo on June 22 with a whirly crane which precipitated the events in question these cranes are used for loading and unloading purposes, longshoremen possess the requisite operating skills and factors of industry practice, economy, and safety also support its position 3 The Operating Engineers Initially, the Operating Engineers argues that the statutory requisites necessary for a 10(k) hearing have not been met because a work stoppage did not occur and, in any event, if there was one it was of momentary importance and not directed by the Seafarers for the purpose of securing a work assignment as would be unlawful under Section 8(b)(4)(D) of the Act On the merits, the Operating Engineers argues that both its certification and current contract, as extended, dictate that whirly crane operation remain assigned to operating engineers Additionally, the Employer's preference and past practice shoud be hon- ored, and such considerations as competence and effici- ency of operation weigh in its favor D 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 Notwithstanding the Operating Engineers contention that a wgrk stoppage, directed by the Seafarers, did not take place on June 22, 1969, we find that as hereina- bove set forth, the record evidence supports the finding of reasonable cause After rumors that longshoremen felt entitled to operate whirly cranes and the Seafarers written demand for the work, matters came to a head on June 22 when a new operating engineer began to train for the job The work stoppage immediately called by the Seafarers was for the purpose of inducing the Employer to assign the disputed work to its longshore members rather than to operating engineers Accordingly, we conclude that on the basis of the entire record, there is reasonable cause to believe 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 E Merits of the Dispute In the CBS ca§e,i' the Supreme Court charged the Board with the "responsibility and duty to decide which of two or more employee groups claiming the right to perform certain work tasks is right and then specifical ly to award such tasks in accordance with its decision " Pursuant to the mandate, the Board in the J A Jones case", stated that it would thenceforth determine the proper assignment of disputed work only after taking into account and balancing all relevant factors The following factors are asserted in support of the claims of the parties herein ' N L R B v Radio & Telesision Broadcast Engineers Union Local 1212 International Brotherhood of Electrical Workers AFL-CIO (Columbia Broadcasting S) stem) 364 U S 573 586 " International Association of Machinists Lodge No 1743 AFL-CIO (J A Jones Construction Compan)) 135 NLRB 1402 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Certification and collective-bargaining agreements 2. Company and industry practices Both the Employer and Operating Engineers rely, in part, on the Regional Director's January 1966 certifica- tion of the Operating Engineers as the exclusive repre- sentative of certain named categories, of employees engaged , inter alia, in operating equipment used in load- ing and unloading water vessels as the basis for their position in this dispute. We note that there is other language in the certification excluding longshoremen from the unit, and the Seafarers collective-bargaining agreement with the Employer (in effect during January 1966, with the same language used in the parties' July 1966 to June 1971 contract applicable herein) covers employees engaged in handling and 'transferring cargo between water vessels and the dock. Moreover, the Regional Director , in determining the appropriate operat- ing engineers unit , specifically noted that crane operation work in the course of loading and unloading ships was a subject of contention between the two unions and that no jurisdictional award of this work was being made by means of the representation proceedings. Subsequently, in July 1966, even though the Operating Engineers signed an agreement with the Employer which ostensibly conferred all crane loading and unloading work on its members, predicated on their interpretation of the certification, the Employer, at the same time, continued in effect until 1971 its contract with the Seafar- ers which remained applicable to all general stevedoring work. It was this situation which confronted the Board in January 1967, relative to the hammerhead crane on the Anchorage City dock, and the Board concluded that neither the Operating Engineers certification nor the parties ' agreements, with their conflicting provisions, was controlling (supra, fn. 11 at 1010). In the present situation, involving whirly cranes, nothing has changed in this regard" and we again find that these documents are not controlling. " The Operating Engineers contend herein that the Board, in the hammerhead crane case , erroneously overlooked a provision in the Seafarers contract defining longshoremen as men in the occupation of "cranemen operators when cranes are used aboard ship " Therefore, it argues , the longshore agreement does preclude the award of dockside crane operation work to longshoremen , albeit the hammerhead crane in the prior case or whirly cranes in this case While it is true that the Seafarers contract does contain a provision to this effect , the contract also contains a statement that, "the status quo to the scope of longshoremen ' s work shall be maintained " (supra, fn 14), and a provision (Sec 21 ) recognizing the need to study mechaniza- tion and modernization in the stevedoring industry generally These statements represent the thrust of the issues presented to the Board in both dockside crane cases, and also in the general crane operation case which developed out of Albin's Seattle operations (supra, fn 7) Prior to 1966, only ships' cranes operated by longshoremen were used in any significant way for traditional stevedoring purposes at the Anchorage dock After that date, changes in shipping methods have resulted in the substitution of machines for manual longshore work in a way that the Board has likened to "the establishment of an entirely new operation " (supra, fn II at 1010) Since the decision awarding hammerhead crane work to longshoremen on this basis was only issued in 1967, it is obvious that the still current 1966-71 longshore agreement cannot now be expected to reflect a new definition of long- shoremen occupations relative to crane operators Although Albin has' consistently divided the work of operating cranes used in its Alaskan stevedore busi- ness between two groups of employees in terms of the location of cranes on board ship or on the dock, the evidence-shows that, however valid this distinction may have been, with the increased use of containerized cargo for shipping purposes and, moreover, with the elimination of ships' cranes altogether, this dichotomy no longer serves to delineate traditional longshore work from other kinds of port jobs also requiring the use of cranes. The trend in the maritime industry for the past decade has steadily been toward the replacement of manual labor by mechanized equipment. This reality was recognized early by parties concerned with shipping on the West Coast of the United States and it culminated in 1961 with the West Coast Longshore Agreement executed by the Pacific Maritime Association (of which Albin, was a member) and various craft unions. The primary aim of that agreement ,was to lighten the impact of unemployment upon longshoremen due to mechaniza- tion, and thereby promote industrial peace in this area of American industry. The Board has recognized the soundness of this objective,'" and indeed relied upon it as a factor favoring longshoremen in the hammerhead crane case (supra, fn. 11 or 1011) even though that dispute also involved the Seafarers, which is not a signatory to the agreement , and the Alaskan port, which is not covered by the agreement. We see no reason to deviate from implementation of the above policy in this case, for clearly the disputed work is in the broadest sense longshore work as it involves the loading and discharging of cargo from ves- sels. Furthermore, the record discloses that in Seattle, as well as in other ports, longshoremen are employed to operate whirly cranes for cargo handling purposes. In view of such considerations, we find that industry practice favors the longshoremen. 3. Relative skills, economy, and efficiency of operations The factor of relative skill in operating whirly cranes seems, at the outset, to favor operating engineers since this is a type of crane which they have worked since the beginning of Albin's stevedore operations in Alaska. Their advantege, however, is tempered by the record evidence that most of the Employer's whirly crane work on the dock has in fact been performed by only two specific operating engineers . Apart from these particular individuals , it appears that all other operating engineers assigned to the job possess relatively little experience in actually manipulating whirly cranes for cargo handling purposes. On the other hand, longshoremen have been in the process of training to run these cranes and there " See International Longshoremen 's and Warehousemen 's Union and International Longshoremen 's and Warehousemen 's Union, Local No. 19 (American Mail Line, Ltd and Mobile Crane Company), 144 NLRB 1432, Albin Stevedore Company and Alaska Freight Lines, Inc , supra, fn 7, International Longshoremen 's and Warehousemen 's Union and its Local Union No 10 (Howard Terminal), 147 NLRB 359 UNITED INDUSTRIAL WORKERS OF NORTH AMERICA are presently eight longshoremen qualified to do so It appears, also, that during several recent emergency situations these longshore operators were called upon to work the cranes In terms of economy and efficiency of operations, not only are longshoremen more readily available on the dock than operating engineers in emergencies, but longshoremen also interchange between the positions of whirly crane operator and hatchtender This eliminates the need for a relief operator, and it also means that the longshore operator performs with a high degree of safety and efficiency because he switches off the job at regular intervals and in the process gains from familiarity with physical conditions aboard ship As regards operating engineers, their crane operators work with an oiler as helper, and neither interchanges with the hatchtender Balancing all of the foregoing considerations, we find that, while both groups of employees possess the neces- sary skills to perform the disputed work, the factors of economy and efficiency of operations favor the Seafar ers claim to the work 4 Gain or loss of employment Whereas membership in the operating engineers local involved in this dispute totals several thousands of employees, membership in the longshoremen's local is less than 100 Moreover, by far the largest number of employment opportunities open to operating engineers in the Alaskan area is in the building and construction industry, for longshoremen, employment opportunities are limited to the Alaskan shipping industry Placed in this context, the loss of two longshore crane operators due to the removal of ships' cranes and the reduction of crew size aboard ship by two men because of contain- erized shipping methods must be viewed as a significant employment loss In addition, the ability of longshoremen 637 to accomplish increased cargo handling faster with the aid of modern methods and machinery and, thereby, actually reducing overall longshore employment hours cannot be ignored Thus , we conclude that a finding herein that operating engineers are entitled to whiny crane operation work would bring about a significant loss of employment opportunities for longshoremen as contrasted with a minimal gain for operating engineers Conclusions Upon the entire record in this case and the foregoing consideration of all relevant factors, we conclude that longshoremen represented by the Seafarers are entitled to the work in question, and we shall determine the dispute in their favor We do not, however, award the work to the Seafarers or its members In making the determination, we particularly rely upon the factors of industry practice, economy, efficiency of operations, and employment opportunities Overall, we are persuad- ed by the realities of mechanization and modernization within the maritime industry that assignments of steve- doring work to longshoremen will be of longrun benefit to the industry as a whole DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Rela- tions Act, as amended , and upon the basis of the forego- ing findings and the entire record in this proceeding, the National Labor Relations Board hereby makes the following determination of the dispute Longshoremen employed by Albin Stevedore Compa- ny, Anchorage , Alaska, who are currently represented by United Industrial Workers of North America, Anchor- age Longshore Unit , affiliated with Seafarers ' Interna- tional Union of North America , AFL-CIO, are entitled to operate whirly cranes located on the city dock of the port of Anchorage , Alaska, in the loading and unload- ing of water vessels