International Longshoremen's Union, Local 8

658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union Local 8 and Port Services Company. Case 36-CD-68 September 21, 1970 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, BROWN , AND JENKINS This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge filed by Port Services Company, hereinafter called Services or the Employer, alleging that International Longshoremen's and Warehouse- men's Union Local 8, hereinafter called the Long- shoremen or Local 8, violated Section 8 (b)(4)(D) of the Act. The gravamen of the charge is that the Longshoremen by virtue of threats of picketing the Employer's premises and adjacent sites, and other acts, sought to force the Employer to assign certain work to its members rather than to Services' employees who are not members of the Longshoremen.' Pursuant to notice a hearing was held before Hearing Officer Lewis S. Harris on June 2, 1970.1 All parties were represented 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. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. The Employer filed a brief which we have duly considered.' Upon the entire record in this case, the Board makes the following findings: ' On May 22, 1970, a Certification of Representative was issued to Automotive Employees Council of Portland and Vicinity (herein called the Council), as collective-bargaining representative for Services' employ- ees performing the work in dispute Automotive Employees Council was permited to intervene herein on the basis of its certification, and it claims the disputed work for the employees it represents ' All dates cited occurred in 1970 , unless otherwise specified In a letter to the Board dated July 14, Local 8 advised that it would not file a brief in this proceeding because of its view that the case is moot. According to Local 8, this is so because, as the letter asserts, Services "is moving its place of business from the Portland Public Docks to another location" and no dispute of any kind involving work assignments now exists between any party to this proceeding or between parties and others who are not parties. We reject the Longshore- I. THE BUSINESS OF THE EMPLOYER The Employer is an Oregon Corporation engaged in performance of predelivery services upon new auto- mobiles imported from Europe and Japan. These serv- ices primarily consist of de-cosmolining and underseal- ing these automobiles after they have been off-loaded from ships berthed at the facilities of the Portland Commission of Public Docks. In the year antedating the hearing herein, the worth of these operations exceeded $500,000 derived from the servicing of approximately 15,000 vehicles. The value of these automobiles, which were subsequently transshipped to points within and outside the State of Oregon, is about $30 million. In view of the foregoing, we find that Services is engaged in interstate commerce within the meaning of Section 2(6) 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 the Long- shoremen and the Council are labor organizations with the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute The Employer, as mentioned above, is engaged at the Portland public docks in performing certain services upon automobiles of foreign manufacture shipped to the United States from diverse overseas points. These automobiles are unloaded at various docks or wharfs located on the Willamette River waterfront by stevedoring firms employing members of Local 8. Services assumes transitory possession of the various Volkswagen, Opel, Toyota, Peugeot, Renault, Datsun, Volvo, Subaru, and BMW brand- named autos after they have come to rest on the adjacent dock areas. At this juncture, they are parked and inspected by U.S. Customs agents, representatives men's view that this proceeding is now moot, particularly in view of the fact that there is outstanding an order pursuant to Sec . 10(1) of the Act, issued by the United States District Court for the District of Oregon, granting a temporary injunction enjoining Respondent ILWU, Local 8 from "picketing at or in the vicinity of the Terminal 4 or Sea-Land facilities" where an object thereof is "forcing or requiring Services to assign the work of cleaning, undercoating and otherwise servicing foreign vehicles to workmen who are members of, or represented by Respondent, rather than to its employees who are not members of or represented by Respondent" As is customary in these cases, by its terms the Court's injunction is effective "pending the final disposition of the matters herein before the National Labor Relations Board " Conse- quently, we do not consider the subject matter herein as being moot in any sense. 185 NLRB No. 95 INTERNATIONAL LONGSHOREMEN'S UNION, LOCAL 8 from the steamship company, the appropriate consign- ee and an Employer's representative . The cars are checked and counted by Dock Commission employees to ascertain the accuracy of the bills of lading. If all is in order, the cars are accepted by the consignee- dealer who then bails them to Services for the accom- plishment of the designated predelivery tasks. They are then driven to Services ' shops and yards located nearby by its employees. On or about April 13, the Employer relocated its cleaning and servicing facility from a point near Terminal 1 to a site adjacent to Terminal 4-both of these sites being established upon property leased from the Commission of Public Docks [CPD]. Accord- ing to the Employer, this move was dictated by the need to "follow the cargo" because the CPD had developed a new floating dock and parking area constituting Terminal 4 to accommodate the growing influx of imported automobiles being landed at Portland. On April 15, F. Huntsinger, president of Local 8, had a conversation with A. Herman, the Employer's president and general manager. Huntsinger told Herman that Services "should be hiring longshoremen from the hall and should discharge our present employees . . . or no additional auto ships with cars consigned to us would be discharged in Portland ." Herman responded by stating that he did not believe that the Employer's work fell within Local 8 's jurisdiction and that he rejected the proposal to hire longshoremen for its accomplishment. Shortly thereafter, on April 20, the steamship TAFU docked with approximately 400 Toyota cars scheduled for servicing by the Employer once they were unloaded. Local 8 posted pickets at the gate to Terminal 4 and the gang of Longshoremen dis- patched to the job refused to cross the picket line. Consequently, this cargo was not removed at Portland and the vessel eventually proceeded to Longview, Washington, where this freight was discharged . Later, on May 11 , the ship Eastern Diamond, laden with Honda automobiles , was unloaded at Terminal 4 with cars earmarked for work by Services. When the Employer attempted to pick up the consignment, checkers" at the terminal refused to release them, stating that the release would be issued only if the cars were removed directly away from the docks or serviced by someone other than the Employer.' Also, on May 11 , the Horai Maru, a ship carrying Subaru automobiles destined for servicing by the Employer, was picketed by Local 8. The ship was ' These cargo checkers are CPD employees who belong to the Port Checker's Union of Local 8 5 Such as Columbia Warehouse Company-another firm operating at the Port which furnishes the same service as the Employer upon imported new automobiles Columbia's employees who move the imported cars off the dock are represented by Teamsters ' Local 223 659 unable to discharge this cargo because the work gangs would not cross the picket line. Picket signs were carried which bore the legend "Longshore Local 8 Picket Line." After laying in Portland for 14 or 15 days, the Horai Maru left with its cargo for Vancouver, B.C., where it was finally unloaded. On May 11, 12, 13, and 14, a similar series of events happened in connection with the docking of the Con- stantia freighted with about 400 Volkswagens sched- uled for undercoating and cleaning by Services. On these dates pickets appeared with signs reading, "ILWU Protests CPD Sellout" and consequently the cargo was not discharged . No gangs were even dis- patched to this vessel between May 15 and May 30, when it sailed with its cargo to Vancouver, B.C., to be unloaded there. B. The Work in Dispute This proceeding pertains to the assignment of cer- tain work related to the predelivery servicing of new imported cars landed in the United States at the Portland Public Docks. This servicing includes the cleaning and de-cosmolining, undercoating, and, where necessary, making of minor body repairs, and painting of these automobiles by the Employer prior to their distribution to various car dealers . The disput- ed work also involves the driving or moving of the subject cars from the immediate off-loading dock areas to Services' facilities, also located on the water- front, for the performance of these services . Finally, the work encompasses the eventual loading of these cars for transport to various inland points. C. The Contentions of the Parties The Employer maintains that the disputed work described above should continue to be performed by its present group of employees , who are presently represented by the Automotive Employees Council of Portland and Vicinity, Intervenor herein. The Long- shoremen's claim for the work, according to the Employer, is singularly devoid of merit because there is no evidence that Local 8 members possess any particular qualifications to perform the Employer's work, nor is there any showing of work history or industry practice which would serve to entitle Local 8 members to the work. The Longshoremen contend that there is no jurisdic tional dispute existing between Local 8 and the Employer but that the only dispute involved lies between Local 8 and the Commission of Public Docks. According to Local 8, the CPD breached its interim 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement with the Longshoremen on January 15, by entering into a new lease with the Employer relating to the latter's new car servicing facility at Terminal 4. Local 8 also urges that it is entitled to the specific work of moving the automobiles on or about the docks by the provisions of certain sections of the existing Pacific Coast Longshore Contract between the ILWU and the Pacific Maritime Association.6 As for the Council, it relies on its recent certification as bargaining agent for Services' employees and maintains that the disputed work should continue to be performed by these employees in accord with the Employer 's assignment. D. Applicability of the Statute Before the Board may proceed to a determination of dispute pursuant to Section 10(k) of the Act, it must be convinced that there is a reasonable cause to believe that Section 8(b)(4)(D) has been violated. As demonstrated by the foregoing description of the background of this dispute , the record contains ample and uncontroverted evidence that commencing on April 15, 1970, and at various times during the month of May Local 8 sought and demanded, by direct and indirect means, that Services assign the disputed work to longshoremen rather than to Services' employees now represented by the Council. In addition, Local 8 instigated work stoppages calculated to coerce the Employer by establishing picket lines which its members would not cross when dispatched to unload various ships berthed at Portland laden with new foreign automobiles destined for servicing by the Employer. Accordingly, we find that there is reasonable cause to believe that violations of Section 8(b)(4)(D) have occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act.7 E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors.' 1. Certification and bargaining agreements There is no Board certification governing the disputed work so that the claims of Local 8 and the Council are unaffected by this factor. As for bargaining agreements , as mentioned previously, the Longshoremenicontended during the hearing that a contract between the International Longshoremen 's and Warehousemen 's Union and the Pacific Maritime Association [PMA] validates its claim to the work which is concerned with "the movement of cargo on the docks" and until cargo comes to rest.9 This position is, according to Local 8, founded upon the fact that CPD became a member of PMA and, accordingly, Local 8's dispute resides against CPD rather than Services.10 Although section 1.1 of the PMA Contract does, in general , assign all labor involved in the movement of cargo on the docks to longshoremen, it is by its own terms subject to .,exceptions and enlargements set forth in this Section 1." Section 1.72, also cited by Local 8, while it does broadly define the term "dock" as used in the contract, also restricts the definition of "cargo" to that "which is loaded to or discharged from oceangoing vessels or received or delivered by an employer covered by this Agreement." In the situation at hand, Services is not an Employer covered by the Agreement. In this context, the Employer cites section 1.11 which stipulates inter alia, that the contract covers "inbound cargo only so long as it is at a dock and under the control of any vessel operator , agent, stevedore, or terminal covered by this Contract Document." As previously shown by the record evidence, the Employer's first contact with the imported automobile occurs after it is in control of the consignee who has received it from the terminal. Accordingly, we find that under the circumstances, especially the fact that Services does not belong to PMA, no evidence has been adduced in this proceeding affording Local 8 even a colorable right derivable from the PMA contract which serves in any legally significant way to justify Local 8's claim.tt Moreover, we find no merit in Local 8's position that it was somehow justified in coercing Services merely because of CPD's alleged breach of its interim agreement (mentioned , supra) with Local o when during 1970, CPD leased new facilities to the Employer on CPD property at terminal 4. 6 On February 5, CPD became a member of the Pacific Maritime Association thus binding itself to!the terms of thejPacificiCoast Longshore Contract which runs from July 1, 1966, to July 1, 1971 Although the Longshoremen argue that its "beer' was with the CPD rather than Services,Fwe note that the record is devoid of any evidence showing that the Respondent everlabandoned its demand for the disputed work See Pile Drivers,lMillwrights & Window Erectors Local No 1966, affiliated with United/Brotherhood of Carpenters and Joiners of America, AFL-CIO (Raymond/lnternational,/Inc ), 184 NLRB No 88, International Union of Operating Engineers,, Local 520, AFL-CIO (Home Building Contractors, Inc ), 168 NLRB No 38 'IN L R B v Radio and,Television Broadcasting Engineers Union (Columbia Broadcasting System ), 364 U S 573 , International Association sf Machinists, Lodge No 1743, AFL-CIO (J A. Jones Construction Co ), 135 NLRB 1402 , 8 It appears from the record, !albeit somewhat ambiguously , that Local 8 during the hearing relmquished ' a portion of its broad claim to have its members perform all of Services 'lwork when it seemed at one juncture to restrict its demand only topbtammg for its members the right to perform the job of moving the imported automobiles around the terminal areas 10 Services is not a memberlof PMA nor is it a signatory to the above- described master agreement Also, neither PMA nor CPD was represented at the hearing 11 Accord Pile Drivers , Millwrights &IWindow Erectors Local No 1966. affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Raymond International , Inc ), supra INTERNATIONAL LONGSHOREMEN 'S UNION, LOCAL 8 2. Company and industry practice Local 8 presented no evidence concerning any particular qualifications possessed by its members which would serve to justify its claim for the disputed work as opposed to its continued performance by Services' employees. However, there is un- controverted evidence to the effect that the work in question historically and traditionally does not fall within the province of the longshoremen on the West Coast. In fact, no evidence was adduced to show that Pacific longshoremen had ever performed the jobs of servicing or readying new imported cars at the docks, or anywhere else for that matter." On the contrary, Columbia Warehouse Company, a competitor of the Employer at the Portland docks, performs the same type of predelivery services for various consignees of new imported cars, and its employees are represented by a local of the Teamsters. In view of the foregoing, we find that existing industry practice on the basis of this record is a factor which militates against Local 8's claim for the disputed work. 3. Relative skills and efficiency of operation The Employer showed that most of its production jobs at least fall within the semiskilled category. In order for an employee to become proficient as a steam cleaner to remove cosmoline from the vehicles being serviced, a minimum of 30 days' on-the-job training is required. As for becoming a competent undercoater, approximately 3 months of training and experience is usually mandatory before one is enabled to s; ray on the thick undercoat material underneath the vehicles efficiently. In cars requiring the installation of certain accessories, or needing painting or body repairs, progressively more training and skills are demanded for competent performance. Local 8 has made no showing that any of its members possess the necessary skills to accomplish adequately these tasks. Therefore, we find that the skill and efficiency factors involved favor the continued performance of the work in dispute by Services' employees represented by the Intervenor, Council. " Cf International Longshoremen's & Warehousemen', Union Local No 50 (Brads-Hamilton Stevedore Compam and Wilaniette-Western Corporation et al ) , I S I NLRB No 51 Conclusion 661 Having considered all pertinent portions of the record, we conclude that employees of the Employer represented by the Council are entitled to perform the disputed work. As set forth above, Local 8 has adduced no significant evidence in support of its claim whereas the record demonstrates forcefully that numerous relevant and material factors support the existing performance of the work" by Services' employees represented by the Council. Our Determination hereunder is limit,,d to the particular controversy which gave rise to this proceeding. DETERMINATION O'l 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 determinatio• of dispute: 1. Employees employed by Port Services Company and represented by Automotive Employees Council of Portland and Vicinity are entitled to perform the disputed work of servicing new imported automobiles including the cleaning and de-cosmolining, undercoating, installing certain accessories, painting, doing body repair work, and moving such automobiles in and around the Portland Public Docks once they have come into the possession of the consignee and the Employer. 2 International Longshoremen's and Warehousemen's Union Local 8 is not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Port Services Company to assign any such disputed work to longshoremen who are represented by that labor organization. 3 Within 10 days from the date of this Decision and Determination of Dispute, International Longshoremen's and Warehousemen's Union Local 8 shall notify the Regional Director for Region 19, in writing, whether it will refrain from forcing or requiring the Employer, by means proscribed in Section 8(b)(4)(D), to assign the disputed work to its members or to longshoremen it represents rather than to employees represented by the Council. " See Local 1 9 International Longchoremen ' c 4ccociation . AFL-CIO (Marine 4 ccocmtion of Chic(go). 151 NLRB 89