Intl Longshoremen's and Warehousemen's Union Loc 8

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union Local 8 and Waterway Terminals Company and Inlandboatmen's Union of the Pacific , Colum- bia River Division. Cases 36-CD-64 and 36-CD- 64-2 August 27, 1970 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act. as amended, following charges filed by Waterway Terminals Company, hereinafter Waterway, and by Inlandboatmen's Union of the Pacific, Columbia River Division, hereinafter the IBU, alleging that International Longshoremen's and Warehousemen's Union Local 8, hereinafter Local 8, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Waterway to assign the work in dispute to employees represented by Local 8 rather than to employees represented by the IBU. A hearing was held on December 11, 12, 29, 30, and 31, 1969, and January 15 and 19, 1970, before Hearing Officer Dale B. Cubbison. 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. Thereafter, the IBU, Waterway, and Local 8 filed briefs. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record, the Board makes the follow- ing findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that Waterway is an Employer engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED We find, as agreed by the parties, that Local 8 and the IBU are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED DISPUTE A. The Facts The work which gave rise to this proceeding involves the loading and unloading of railcar freight at two of Waterway's terminals in Portland, Oregon-the 3838 N.W. Front Street terminal, and also, to a minor degree, the Comumbia Basin terminal. The facts leading up to the present dispute are as follows: Waterway, a wholly owned subsidiary of Crown Zellerbach Corporation, is a freight interchanger, load- ing and unloading freight at its terminals upon the request of shippers and receivers. The bulk of the freight is brought to the terminals by barge, and is transferred onto either trucks or railcars. Most of the freight comes from pulp and paper mills owned by Crown Zellerbach. Although Waterway operates several freight terminals in the Pacific Northwest, the work in dispute centers only on the two above- mentioned terminals. Prior to the middle of 1968, Waterway subcontract- ed most of the work performed at its various terminals, exclusive of truck freight which was usually handled by the truckdrivers, to two companies-Western Transportation Company, also a subsidiary of Crown Zellerbach, and Interstate Carloading Company. Western, whose employees were represented by the IBU, loaded and unloaded both barge and railcar freight at most of the Waterway terminals. With respect to the 3838 N.W. Front Street and the Colum- bia Basin terminals, however, Western handled only barge freight.' The railcar operations at those two terminals were performed by Interstate whose employ- ees were represented by Local 8, and under a union shop contract were members of Local 8. In 1968, Waterway became Western's successor. Shortly thereafter, Waterway and the IBU negotiated a new collective-bargaining agreement which, in accordance with a similar provision in the old IBU- Western contract, provided, inter alia, that employees represented by the IBU would load and unload rail- road cars as well as barges. In accordance with this language, and with the past practice, the Waterway employees represented by the IBU continued to handle both kinds of freight at the terminals not here involved-work which they had theretofore performed as Western employees. ' As was the case throughout its operations, the Western employees at the terminals also occasionally handled truck freight 185 NLRB No. 35 INTL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOC 8 With respect to the 3838 N.W. Front Street terminal,' however, Waterway took over only the barge operations, constituting the work previously performed by Western, and hired the former Western employees to do the work. These employees continued to transport the barge freight to an area, marked off by white lines, immediately adjacent to where the railroad cars were to be loaded There, the approximately 60 Interstate employees continued to pick up the freight and carry it to the railcars. The unloading of the cars entailed a reverse process. The Interstate employees also cleaned out the cars, stored the freight so that the loads were evenly balanced, and sealed the cars. The operations continued in this fashion until the fall of 1969.' Then, in response to Interstate's request for a rate increase, Waterway decided to perform the previously subcontracted railcar work with its own employees. Accordingly, it notified Interstate that it was terminating the subcontract on October 31. Prior to the subcontract's termination, Local 8, in a letter to Waterway on October 22, in effect asked that Interstate's employees continue in their jobs and that its collective-bargaining agreement with Interstate covering these employees remain in effect. It also offered to bargain, and requested that Waterway schedule a meeting for that purpose. By letter to the IBU dated October 23, however, Waterway agreed to the IBU's claim to this new railcar work which Interstate employees had been doing. A few days later, Waterway informed Local 8 that it (Waterway) would be guilty of an unfair labor practice if it negotiated with any other union than the IBU. Water- way ignored the request to continue the Interstate employees in their jobs. Waterway, on November 1, took over the railcar functions previously performed by the In employees. But Waterway did not hire any of the Interstate employees then performing the work. Rath- er, it added the railcar duties to the tasks of its terminal workers, who had previously performed only the barge segment of the freight loading and unloading. Although Waterway also had to hire a substantial number of new employees to assist in performing these newly expanded duties, there is no evidence to warrant a finding that, but for one or two excep- tions, it made any job offers to the former Interstate employees. Local 8 thereupon picketed Waterway with signs reading "Waterways [sic] Unfair to Longshoremen- ' It appears that the Columbia Basin terminal handles only surplus work which cannot be performed at the 3838 NW Front Street terminal, and accordingly, does not have a regular employee complement As the controversy primarily centers on the main terminal at 3838 NW Front street, it is the operations of this terminal which are described herein ' All dates hereinafter refer to 1969 187 ILWU Local 8." The picketing continued until enjoined by the United States District Court for the District of Oregon , pursuant to the Regional Director's petition under Section 10(1) of the Act. B. The Contentions of the Parties Local 8 contends in effect that the objects of its picketing were to preserve or regain the work the Interstate employees had been doing until replaced by Waterway employees on November 1, and to continue to represent them . Local 8 further contends that this does not establish an unlawful work assign- ment dispute violative of Section 8(b)(4)(D). Waterway and the IBU both assert that a jurisdic- tional dispute exists, and ask that the employees represented by the IBU be awarded the work. C. The Applicability of the Act Before the Board may proceed to a determination of dispute under 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. We are not satisfied that any such violation has occurred in this case. Here, the evidence is insufficient to establish a traditional jurisdictional dispute between two groups of employees. The employees represented by Local 8 were terminated during the term of an existing collective-bargaining agreement as a result of Water- way's reorganization. The evidence bearing upon Local 8's objectives is limited to its letter of October 22, 1969, in which it merely demanded continued employ- ment of those presently working and that the collec- tive-bargaining agreement applicable to them be given force and effect. No other demands were made and none can be implied. The dispute is thus like that which was before us in the 1960 case of Franklin Broadcasting Company, 126 NLRB 1212. In that case the employer created a dispute with a union by terminating a group of employees, whom the union represented, and assigning their duties to another group of employees. We held that picketing by the union, in order to "obtain reemployment" of the first group of employees and get a collective-bargaining contract for them, involved "objectives which the Congress, in enacting Section 8(b)(4)(D), did not intent to proscribe" (at p. 1215).° ' It is significant that the dispute in Franklin Broadcasting was not limited to a demand for reinstatement of terminated employees, but also included " the Employer's refusal to accede to the demand of Local 292 that it sign a new contract" This latter aspect of the dispute was deemed insufficient to bring the controversy within the ambit of Sec 8(b)(4)(D), Thus, in the instant case, Local 8's demand that Waterway honor the remaining term of its existing collective-bargain- ing agreement could hardly furnish a basis for distinguishing Franklin Broadcasting 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We amplified this principle in Safeway Stores, Incorpo- rated, 134 NLRB 1320, which issued after Supreme Court's authoritative statutory interpretation of Sec- tion 10(k) in N.L.R.B. v. Radio & Television Broadcast Engineers Union Local 1212 International Brotherhood of Electrical Workers, AFL-CIO (Columbia Broadcast- ing System), 364 U.S. 573. In Safeway Stores, we noted that although the dispute "might be deemed to to fall within the literal terms of the Section 8(b)(4)(D) proscription" (at p. 1322), that proscription was not designed to authorize the Board to arbitrate disputes between an employer and a union, particular- ly with regard to the union's "attempt to retrieve the jobs" of employees whom the employer chose to supplant by reallocating their work to others.' Our decision in Lawrence Erie, 158 NLRB 1687, relied on by our dissenting colleagues, is clearly distin- guishable. As heretofore indicated, the Union's demands in the instant case merely sought employ- ment of the dislocated workers and continued applica- tion of the bargaining agreement covering them. There was no claim that IBU's members be replaced by employees other than those who were terminated. In Lawrence Erie, on the other hand, at least one of the objectives of the striking union was to require the Employer to accede to the union's jurisdictional claim by assigning the disputed work to applicants furn ished from the union's hiring hall. This pursuit of union interests, which was unrelated to the job rights of dislocated employees, is hardly consistent with an effort to preserve the employment of dischar- gees and clearly distinguishes that case from Franklin Broadcasting, Safeway, and the instant case. On the basis of the foregoing, we find that Local 8's picketing of Waterway was solely for the object of preserving the carloading work for the employees ' We are not persuaded by the attempt of the dissent to distinguish Franklin Broadcasting and Safeway on grounds that those cases did not involve two groups competing for the disputed work Under settled policy this difference could hardly prove material to the existence or nonexistence of a traditional jurisdictional controversy For the applicabili- ty of Sec 10(k) is not dependent upon "the existence of a dispute between two or more groups of employees actively competing for the work assignment "Local 1291, International Londshoremen'c Association (Pocahontas Steamship Company), 152 NLRB 676, 679 In answer to the narrow construction placed upon Pocahontas by the dissent, we note that we are unaware of precedent or policy considerations that would require an active claim by the beneficiaries of a work assignment before an employer may invoke Sec 8(b)(4)(D) to remedy the pressures applied by a labor organization seeking to disrupt such an assignment Furthermore, from a reading of Franklin Broadcasting and Safeway, it does not appear that those to whom the work in those cases was assigned did not actively claim it, nor does it appear that they received extra compensation for its performance in any event, as here, the question under consideration was whether the conduct of the picketing union fell within the objective Congress intended to bar through enactment of Sec 8(b)(4)(D) Upon analysis of the legislative history, it was concluded in those cases, that, as the evidence merely showed that the picketing unions were solely concerned with demands for restoration of the job rights of terminated employees, their conduct was not of the type Congress sought to regulate through Sec 8(b)(4)(D) who had been doing it and who had selected Local 8 to represent them,' and that such a dispute is not the type of controversy Congress intended the Board to resolve pursuant to Section 8(b)(4)(D) and Section 10(k) of the Act.' Accordingly, we shall quash the notice of hearing. ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. CHAIRMAN MILLER AND MEMBER MCCULLOCH, dis- senting: We disagree with our colleagues' conclusion that the facts herein do not present a jurisdictional dispute cognizable under Section 10(k) of the Act. The facts show that Waterway terminated the Inter- state subcontract with the intention of reorganizing the two terminal operations in question, for economic and not discriminatory reasons. Essentially, Water- way's operations at its various terminals consisted of transferring freight between barges and railcars. At most of the terminals, the work was all done by its own employees, who were represented by the IBU. At the Front Street terminal (and the occasional overflow work assigned to the Columbia Basin termi- nal), however, the work had been subdivided between two separate groups of employees. One group, employed by Waterway and represented by the IBU, had transferred the freight only between the barges and an intermediate point; while the second group, employed by Interstate and represented by Local 8, had completed the transfer between the intermediate point and the railcars. It was this arbitrary subdivision of the work which Waterway proposed to eliminate by having a single group of employees perform it all at the two terminals in question, as was being done at its other terminals. It is in this context that Local 8, by its letter dated October 22, expressed its assumption that its members at Interstate "will continue to work in their present jobs, and that our collective-bargaining agree- ment will remain in full force and effect." But, as noted above, Waterway had decided for economic reasons to reorganize its operations and to abolish the jobs formerly performed by the Interstate employ- ees and to merge their functions with that of its own employees, represented by the IBU. Accordingly, ' We note that we are not called upon in this proceeding to consider whether the picketing may have had a recognitional objective proscribed by Sec 8(b) (7) As a consequence, the result we reach should not imply that Waterway had no remedy under that section of the Act We further note that our present holding does not turn on whether Waterway's reorganization violated Sec 8(a)(1), (3), or (5) ' While Member Fanning agrees that the Lawrence Erie case is distin- guishable, he would, in any event, reach the same result in view of his dissenting opinion in that case INTL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOC 8 Waterway advised Local 8, by letter dated October 28, that it planned to perform the work Local 8 referred to with its own employees, and that it would be guilty of an unfair labor practice if it granted recognition to any other union than the IBU. On receiving this letter, Local 8 showed no further concern over the former Interstate employees, for it made no application to Waterway on their behalf for any vacancies that might arise under the new plan. Instead, it immediately began picketing Waterway's terminal with signs reading "Waterways [sic] unfair to Long- shoremen-ILWU Local 8." A few days later, it filed unfair labor practice charges alleging violations of Section 8(a)(1), (2), (3), and (5).8 The forgoing established that Local 8's picketing was not merely directed against Waterway's purported refusal to retain the Interstate employees in their former jobs. Rather, the picketing also sought contin- ued recognition of Local 8 as the representative of the employees performing the work previously done by Interstate. As evidenced by its charges filed with the Board, of which we take administrative notice, Local 8 maintained that Waterway, as Interstate's alleged successor, had improperly recognized the IBU and was obligated to continue to deal with it. More- over, the picket signs did not state that the purpose of the picketing was to protest Waterway's alleged refusal to retain the Interstate employees. The signs made only the general allegation that Waterway was "unfair," which by traditional union usage meant that Waterway refused to recognize Local 8. As to the assertion that Waterway refused to hire the former Interstate employees, the record indicates that only one Interstate employee unconditionally applied for a job while vacancies still existed, and a job proffer was in fact tendered by Waterway, but was turned down. In our view these facts show that Local 8 was really claiming jurisdiction over the work per- formed by some of Waterway's own employees, to further its own interests. In light of the foregoing, it is difficult to see what bearing the cases relied on by majority-Safeway Stores, supra, and Franklin Broadcasting supra-have on the instant proceeding. In each of those cases we found that there was no jurisdictional dispute where displaced employees picketed in an attempt to regain their jobs and where there was only one group of employees which claimed the disputed work. The absence of any rival work claims of course distin- guishes those cases from a situation where, as here, one union pickets in an attempt to force a reassignment of work in the face of a competing claim by, or The charges were subsequently dismissed by the Regional Director and no appeal from the dismissal was thereafter filed 189 on behalf of, another group of employees.' More directly on point than the cases relied upon by the majority is Lawrence Erie, 158 NLRB 1687. Like Waterway, Lawrence Erie operated various termi- nals, and took over the operation of an additional terminal where the work was formerly performed by employees of another company; and it hired addi- tional employees to replace them. Like Local 8, the union representing the former employees then picketed the terminal as "unfair," to get the replaced employees hired and also to get Lawrence Erie to hire all new employees through its hiring hall. Based on the forego- ing, a Board majority found that the purposes of the picketing went beyond the "mere protest" of what the Respondent union believed to be discrimina- tory hiring practices, and showed that at least one of that union's objects was to force Lawrence Erie to replace its own employees with employees who were members of and were represented by it. Here, as noted above, the picketing went beyond the "mere protest" of what Local 8 believed to be discriminatory practices against the former Interstate employees, and sought a reassignment of the car loading work to them in order to entitle Local 8 to continued recognition as the collective-bargaining representative of the employees who would then per- Likewise distinguishable is Pocahontas Steamship, supra, relied on by the majority for the proposition that the applicability of Sec 10(c) is not dependent upon " the existence of a dispute between two or more groups of employees actively competing for the work assignment " There, the International Longshoremen's Association (ILA) picketed in an attempt to seek the reassignment of work which had been assigned by the employer to employees represented by the National Maritime Union (NMU) Subsequent to the announcement of the picketing, the NMU disclaimed any interest in the work in question In considering the efficacy of the NMU's disclaimer, the Board noted that the employees represented by the NMU would continue to receive their monthly salary, irrespective of whether they performed the work in question it concluded, therefore, that inasmuch as payment would be required for two groups of employees while only one did the work, that the NMU's purported disclaimer imposed no hardship and involved no sacrifice or giving up" by the employees the NMU represented Accordingly, the Board held that the disclaimer was ineffective and that a jurisdictional dispute existed Here, of course, there is no allegation that either of the two unions or the employees they represented had disclaimed interest in the car loading work In finding Pocahontas to be distinguishable from the instant case, we are not, as the majority implies, stating that a jurisdictional dispute exists only if there are two or more competing employee groups actively competing for the work in question For, we are fully cognizant that under certain circumstances such as those in Pocahontas, that the Board has found jurisdictional disputes even though only one of the employee groups had actively claimed the disputed work in such cases, however, our holdings were based on the fact that the purported disclaimers made by the other employee groups were ineffective, and that, therefore, the employers therein were not presented with rival claims In Safeway and Franklin Broadcasting, on the other hand, there was no question regarding the efficacy of the disclaimers made by the respective employee groups and it was on this basis alone that we concluded that the employers therein were not faced with rival claims over the work in question cognizable under Sec 10(k) The majority's claim that our holdings in those two cases was based on the abstract right of displaced employees to picket in an attempt to regain their jobs, regardless of whether an employer is faced with a competing claim by another employee group, obviously ignores this crucial factor 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form that work. It is difficult to see, therefore, how the facts herein can in any meaningful way be distin- guished from those in Lawrence Erie. Moreover, even if one were to assume that the situation herein is not precisely the same as in Law- rence Erie, the fact remains that Waterway, the employer in the instant case, was presented with dual claims over the disputed work and, after assigning the work to employees represented by the IBU, was picketed by Local 8 in an attempt to seek a reassign- ment of the work to the employees who were members of and were represented by Local 8. In our view this is a typical situation that Congress contemplated when it directed the Board to decide which of the conflicting claims was meritorious. Accordingly, we would find a jurisdictional dispute, and would determine the merits of the dispute.