Local 18, ILWU

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 18, International Longshoremen 's and Ware- housemen's Union ; Local 54, International Long- shoremen 's and Warehousemen 's Union and En- gineering & Grading Contractors Association, Inc. Local 18, International Longshoremen's and Ware- housemen 's Union ; Local 54, International Long- shoremen 's and Warehousemen 's Union and Operating Engineers Local Union No . 3, AFL- CIO Local 18 , International Longshoremen 's and Ware- housemen's Union ; Local 54, International Long- , shoremen 's and Warehousemen 's Union and Tom M. Hess, Inc. Cases 20-CD-254, 20-CD-255, and 20-CD-258 November 5, 1968 DECISION AND DETERMINATION OF DISPUTES By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN National Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. Upon the entire record in these cases, the Board makes the following findings: 1. THE EMPLOYERS Hess, a California corporation, is part of a joint venture which successfully bid on a contract to build a section of interstate highway at or near Stockton, California. It is a member of Engineering Association, an employer association in the construction industry. Oman, a Tennessee corporation, is a subcontractor of Hess. During the past year, both Hess and Oman purchased and received in California goods and supplies valued in excess of $50,000 directly from suppliers located outside the State of California and sold goods and services valued in excess of $50,000 directly to customers located outside the State of California. We find that both Hess and Oman are employers engaged in commerce within the meaning of the Act, and it will effectuate the policies of the Act to assert jurisdiction herein. This is a proceeding under Section 10(k) of the National Labor Relations Act,' as amended, follow- ing charges filed by Engineering & Grading Con- tracters Association, Inc., hereinafter called En- gineering Association, Operating Engineers Local Union No. 3, AFL-CIO, herein referred to as Engineers, and Tom M. Hess, Inc., herein called Hess, alleging that Local 18 and Local 54, International Longshoremen's and Warehousemen's Union, herein- after referred to as Locals 18 and 54, respectively, or as Respondents collectively, had induced and en- couraged members of Hess, Oman, and other em- ployers to strike for the purpose of forcing or requiring Hess and Oman to assign particular work to members of Locals 18 and 54 rather than to members of Engineers, and that Respondents had threatened, coerced, and restrained the above-named Employers for a like purpose. A hearing was held before Hearing Officer Walter L. Kintz on June 18-21 and 28 and July 1-3 and 8, 1968. All parties appeared at the hearing and were afforded an opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Briefs were filed by the Respondents, Engineers, Hess, and Oman. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby af- firmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and, we find, that Locals 18 and 54, and Engineers, are labor organizations as defined in the Act. III. THE DISPUTE A. The Work in Dispute The work in dispute consists of loading imported borrow (earth brought from another location) onto barges at Rio Vista, California, and unloading the barges at Stockton, California, in both instances by means of extensive conveyor systems and heavy equipment such as bulldozers. B. The Background Both Employers assigned the disputed work to employees represented by Engineers.' As noted above, Hess, together with certain other companies, entered into a joint venture which bid and was awarded a contract to build a 6-mile long section of interstate highway at Stockton, California. The specific function to be performed by Hess was the acquisition and transportation of some 5,620,000 tons of imported borrow to the site of the highway ' Oman Construction Company, Inc , herein called Oman, an Chapter, The Associated General Contractors of America, Inc , herein- employer engaged in a portion of the work in dispute , intervened in this after called AGC. Both Associations are parties to agreements with consolidated proceeding Engineers which cover such categories of heavy equipment operators as 2 Hess is a member of Engineering Association, and since May 27, are herein involved . However, neither agreement specifically con- 1968, Oman has been a member of Northern and Central California templates the loading or unloading of barges. 173 NLRB No. 92 LOCAL project and its application at the project for such purposes as filling and embankments. Upon recom- mendation of the State of California, Hess decided to utilize a source of borrow at Rio Vista, California. There the U.S. Corps of Engineers had stockpiled dredgings from the Sacramento River which were available free for such highway projects. Hess subcon- tracted to Oman the work of loading the borrow onto barges at Rio Vista. Hess also contracted with another company for the use of non self-propelled barges and with Pacific Inland Navigation Company to provide and operate tugboats to tow the barges from Rio Vista, to Stockton, and return. The loading operation at Rio Vista and the unloading operation at Stockton are the sole areas of work involved in the dispute. C. The Basic Facts 1. The disputed work at Rio Vista The U.S. Corps of Engineers has deposited a mass of borrow at Rio Vista approximately 6,000 feet long, 800 feet wide, and 50 feet deep. Oman employs five men in moving that borrow onto barges for shipment to Stockton. The five men in question were transferred to the Rio Vista site from a dam con- struction site in which Oman was engaged and which was nearing completion. Oman's 5-man crew consists of 1 foreman, 2 bulldozer operators, I Barber-Greene loader operator, and 1 heavy duty repairman. The borrow is moved essentially by a series of conveyor belts which are operated by manually manipulated levers and remote push-button electric switches, and are manned by the 5-man crew. In addition, the conveyor belt system requires trenchmg, tunneling, and loading which are accomplished by means of the bulldozers and Barber-Greene loader. The borrow drops directly from the last belt, which extends out over the Sacramento River, into the barges below. Oman employed employees represented by Engineers to perform this work. 2. The disputed work at Stockton When the loaded barges arrive at Stockton, bull- dozer operators employed by Hess drive onto the barges and push the borrow to a conveyor belt, which transports it to a second conveyor which in turn stockpiles it on shore. From this point the material is moved by bulldozer, front end loaders, and similar equipment into a mechanical loader known as a Co-Cal loader, which then loads the material on trucks for transportation to the appropriate freeway location. At the time of the hearing, Hess employed three shifts engaged in this work, each consisting of a foreman, two mechanics, two bulldozer operators, a loader operator, and a conveyor operator. Ap- proximately 21 men appear to be involved. Hess 18, ILWU 591 assigned all of this work to employees represented by Engineers. 3. The inception of the dispute The following facts are not disputed and were essentially stipulated on the record. On May 13, 1968, Pacific Inland Navigation Company began to move the barges loaded by Oman employees from Rio Vista to Stockton, where they were to be unloaded by Hess employees. On May 15, 1968, Local 18 pickets, in small boats, appeared in the area near Oman's Rio Vista loading facility carrying signs reading: "The ILWU has historically and traditionally done the loading of barges." When the loaded barge approached Stockton, it was stopped by pickets in small boats and an agent of Local 54 informed representatives of Hess and the barge company that the barge would not be allowed to tie up at the Port of Stockton, adding, "his union had always done the work of loading and unloading cargoes such as this." After some discussion, the Local 54 agent agreed that the barge could be tied up at an alternative dock, provided Hess and the tugboat company representa- tives agreed that it would not be unloaded. The loaded barge was tied at a grain elevator pier, where the Respondent continued to picket as described above. Locals 18 and 54 purchased a newspaper advertisement in a Stockton daily newspaper stating in substance that they claimed the work of loading and unloading barges on the job concerned. The picketing continued until enjoined pursuant to Section 10(l) of the Act on June 5, 1968. Since that date the work has been performed by employees represented by Engineers. D. Contentions of the Parties Engineers claims that the work in dispute is intimately related to the general maintenance and operation of heavy equipment on a highway con- struction project, that the work is highly skilled craft work, that assignment of the disputed work to Engineers is consistent with the practice of the Employers and the construction industry, and that it provides greater economy to the Employer in that employees represented by Engineers, unlike those represented by the Respondents, can perform the disputed work and other duties consistent with the Employers' basic project. Engineers further claims that by virtue of Hess' membership in Engineering Association, and Oman's membership in AGC, both Employers are bound by their respective Association's Master Agreements with Engineers, and that the work assignments herein are controlled by these Agree- ments. Hess contends that it is basically neutral, but that the record indicates that it would achieve more personnel flexibility and hence economy, and would 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be more assured of a competent and qualified work force, if an award were made in favor of employees represented by Engineers. It is the contention of Oman that the work involved and the skills entailed are those of employees represented by the Engineers; that such an award is consistent with Employer and industry practice; that by virtue of its membership in AGC, it is party to a contract with Engineers which covered the disputed work, and that employment of employees represented by Engineers provides a more efficient operation of Oman's business. Locals 18 and 54 (at Rio Vista and Stockton respectively) contend that the assignment of the disputed work to em- ployees represented by them is consistent with area and industry practice; that loading and unloading of barges is and always has been their work despite the point of origin or the destination of the material being handled or the nature of the industry requiring the matenal, that the Employers' assignments are of no significance in that they were dictated by the amount of pressure Engineers could bring to bear upon them; and that their members possess all of the skills and experience required to perform the disputed work. E. Applicability of the Statute Before the Board may proceed with a determina- tion of the 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. The charges herein allege violations of Section 8(b)(4)(i) and (ii)(D) of the Act. On the basis of the entire record, and particularly on the above facts concerning the picketing by the Respondents, we find that there is reasonable cause to believe that w violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before the Board for de- termination under Section 10(k) of the Act. F. Merits of the Dispute The determination of who is entitled to the disputed work in a case such as this must rest on all the relevant factors. There exist however , certain broad criteria upon which the Board has traditionally relied .' In evaluating those criteria as they apply to the case before us, it is obvious that a resolution may vary with respect to them inasmuch as the work in dispute may be said to lie either in the shipping industry or in the construction industry. The Board has issued no certification relevant herein ; there are no interunion agreements con- trolling; nor are there any awards of arbitrators, joint boards or the AFL-CIO in any like or related case. As noted above, Hess is a member of Engineering Association which is a party to a Master Agreement with Engineers , and since May 27, 1968 (after the instant dispute arose ), Oman has been a member of AGC, which is also party to a Master Agreement with Engineers . Assuming , arguendo , that we might other- wise conclude that those contracts were significant herein, we note that neither by specific terms nor by their references to Engineers' constitutional claim to coverage do they clearly encompass the work in issue before us. Engineers did demonstrate that in the greater San Francisco bay area, its members operated equipment similar to that involved herein in the loading, un- loading, and placement of material like that involved herein. Respondents amply supported their con- tention that such equipment and matenal at the ports of Stockton and Sacramento are handled by em- ployees represented by them. However, most of the Respondents ' evidence on point relates to the loading and unloading of self-propelled ocean-going vessels rather than barges . Respondents showed that the practice in the maritime or shipping industry is clearly to utilize the services of its members. Engineers likewise showed that the practice in the highway construction industry , and incidentally the practice of both Employers , was to employ its members to perform the tasks in dispute. Neither claim can be given controlling weight , however, as the work in issue rests at the confluence of the two industries. There is a great deal of evidence in the record relating to the skills required to perform the work,in question . Engineers points to its asserted status as a craft union and to its apprentice training program and contends that the work is highly skilled in nature. However, Locals 18 and 54 noted that they too have training programs to develop skills in the operation of bulldozers , conveyors, and related equipment. We conclude, upon the record as a whole, that neither group of employees has any overriding technical training which is particularly qualifying , and that proficiency is acquired by on-the-job experience. It should be noted in this respect that Respondents do not claim the work of installing or dismantling the extensive conveyor systems, work which is clearly within the expertise of employees represented by Engineers who are actually performing some of the disputed work. Hess contends that its operation is more efficient utilizing operating engineers than it would be if employees represented by Local 54 were awarded the disputed work , since engineers so employed are available to work with similar heavy equipment on the highway project itself when the unloading work permits this . It is questionable whether a substantial amount of man hours would be so involved since it is contemplated that the unloading operation itself will 3 See International Association of Machinists (J. A. Jones Con- struction Co.), 135 NLRB 1402, 1410. LOCAL 18, ILWU run between 12-14 hours each day, and stockpile trimming and truck loading will take up additional time. Similarly, Oman contends that its operation requires periodic moving of the conveyor belt which would necessitate bringing in extra employees, repre- sented by Engineers, if Local 18 employees were awarded the work. While neither Hess' nor Oman's purported increased efficiency caused by utilization of engineers to perform the disputed work appears to be substantial in nature, nevertheless we find such increased efficiency as might result is a factor weighted in favor of awarding the work to employees represented by the Engineers. In addition to the above mentioned factors, the assignments of both Oman and Hess in favor of Engineers tend to support an award in favor of employees represented by that labor organization. And these, coupled with certain other facts, persuade us that such an assignment is proper. Thus, the Employers overall project is the construction of a segment of interstate highway. The acquisition and utilization of borrow is an integral part of that project, and indeed, the unloading function is per- formed in an area contiguous with the actual con- struction site. It is worthy of note in this regard that the Oman facility at Rio Vista is used solely by Oman and only for the purpose of supplying borrow for the highway construction project. It is equally significant that, at Stockton, Hess utilizes private, not public, docking facilities adjacent to the highway con- struction project, and uses those private facilities for that project alone, insofar as this record shows. In view of the above, we shall determine this dispute in favor of Oman and Hess employees represented by Engineers. However, we are not unmindful that the work in dispute bears a close relationship to Respondents' traditional work func- tions, and our present determination is limited to the controversies which gave rise to this proceeding. In making this determination, we are awarding the disputed work to Hess and Oman employees repre- sented by Engineers, and not to Engineers or its members. 593 Accordingly, we find that Respondents were not, and are not, entitled by means proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act to force or require Hess or Oman to assign the disputed work to their members rather than to Hess or Oman employees represented by Engineers. DETERMINATION OF DISPUTES 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 case, the National Labor Relations Board hereby makes the following determination of disputes. A. Employees of Tom M. Hess, Inc., and Oman Construction Company, Inc., currently represented by Operating Engineers Local Union No. 3, AFL- CIO, are entitled to perform the following work. All loading and unloading of borrow on and from barges at Rio Vista, California, and the private dock and unloading facility of Tom M. Hess, Inc. at Stockton, California, and related work in and around the pit area and stockpile area, including the operation of mechanical equipment. B. Local 18 and Local 54, International Long- shoremen's and Warehousemen's Union, are not en- titled by means proscribed by Section 8(b)(4)(i) or (ii)(D) of the Act to force or require either Tom M. Hess, Inc., or Oman Construction Company, Inc., to assign the above-described work to longshoremen, who are represented by them. C. Within 10 days from the date of this Decision and Determination of Disputes both Local 18 and Local 54, International Longshoremen's and Ware- -hausemen's Union, shall notify the Regional Director for Region 20, in writing, whether or not it will refrain from forcing or requiring Tom M. Hess, Inc., and Oman Construction Company, Inc., to assign the work in dispute to its members, rather than to employees of the above-named Employer represented by Operating Engineers Local Union No. 3, AFL- CIO.