United Industrial Workers of North America

UNITED INDUSTRIAL WORKERS, PACIFIC DISTRICT United Industrial Workers of North America, Pacific District, affiliated with the Seafarers' International Union of North America, AFL-CIO and Sea-Land Service, Inc. and International Union of Operating -Engineers, Local 302, AFL-CIO. Case 19-CD-164 January 29, 1971 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following an 8(b)(4)(i) and (ii)(D) charge filed on June 3, 1970, by Sea-Land Service, Inc.' The charge alleged that on May 27, 1970, United Industrial Workers of North America, Pacific District, affiliated with the Seafarers' International Union of North America, AFL-CIO,' caused a work stoppage by Sea-Land's employees to force Sea-Land to assign the work of operating its crawler crane at the navy dock at Kodiak, Alaska, to members of the Seafarers, rather than to members of International Union of Operating Engineers, Local 302, AFL-CIO.' A hearing was held at Kodiak, Alaska, on August 5, 1970, and at Seattle, Washington, on August 7, before Hearing Officer Richard Stratton. All parties appeared at the hearing and were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, 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 delegat- ed its powers in connection with this case to a three- member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds them to be free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the National La- bor Relations Board makes the following findings: I THE BUSINESS OF THE EMPLOYER The parties have stipulated, and we find, that Sea- Land is a Delaware corporation engaged in the se- veral States, including the State of Alaska, in the transporting of cargo principally by container. During the year prior to the hearing Sea-Land shipped goods ' Hereinafter referred to as Sea-Land. 2 Hereinafter referred to as the Seafarers. 3 Hereinafter referred to as the Operating Engineers. The Operating Engi- neers was permitted to intervene and participate in the hearing 241 valued in excess of $50,000 from points outside the State of Alaska directly to various ports in that State, including the port of Kodiak and the port of Anchor- age. A like quantity of goods was shipped from those ports directly to ports outside the State of Alaska. It was further stipulated, and we find, that Sea-Land is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The parties have stipulated, and we find, that United Industrial Workers of North America, Pacific District, affiliated with the Seafarers' International Union of North America, AFL-CIO, and Interna- tional Union of Operating Engineers, Local 302, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE DISPUTE Sea-Land has serviced the port of Kodiak, Alaska, since about 1964. During 1966, 1967, and up to the fall of 1968, Sea-Land operated two cargo vessels, the Anchorage and the Seattle, into Kodiak, each carrying a shipboard crane. This crane was operated by four longshoremen each working an hour on an hour off, with the off-duty operator working either as a hatch tender, or a signalman, or in some other capacity about the vessel. The Anchorage and the Seattle car- ried break bulk cargo which was unloaded by ships' gear manned by longshoremen. Sea-land later elim- inated that operation and converted the vessel entirely to loaded vans. As a result, an entire longshore crew was also eliminated.4 Late in 1968, this operation was aided by the use of barges operating between Anchor- age and Kodiak. These barges had aboard a Manito- woc "4000" crane, commonly called a crawler crane. The operation of this crane was performed by a mem- ber of the barge crew whose union affiliation, if any, is not shown by the record, and by an operating engi- neer flown in on occasion from Anchorage, a distance of 250 air miles from Kodiak. With the coming of winter the barges were unable to operate, and a ship- the Pacific Apollo was permanently substituted for the Seattle and the Anchorage. As a rule, the Pacific Apollo makes two trips a week the year round. In December 1969, the Manitowoc crane was re- moved from the barge and placed on crawlers on the U.S. Naval Station dock at Kodiak where it was used to unload containers from the Pacific Apollo. Sea- Land then assigned the work of operating the crane 4 This history parallels that described by the Board in United Industrial Workers of North America, Anchorage Longshore Unit, affiliated with Seafar- ers' International Union of North America, AFL-CIO (Albin Stevedore Compa- ny), 182 NLRB No 99 188 NLRB No. 32 ' 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to L. R. Cagle, a member of Local 302 of the Operat- ing Engineers . At the time of this assignment, Cagle was regularly employed as a mechanic and was en- gaged in repairing Sea-Land's heavy machinery. Fol- lowing the new assignment, Cagle spent approximately 8 to 10 hour per week operating the Manitowoc, or crawler, crane (about 4-5 hour on each of the Pacific Apollo's two arrivals per week) and the remainder of the week in his regular mechanic work. Seafarers objected to the assignment of the operat- ing of the Manitowoc crane to Cagle, and demanded that the work be assigned to longshoremen whom it represented. Sea-Land refused the demand. On May 27, 1970, in response to a request by Sea-Land that Seafarers dispatch a crew of longshoremen to help unload the Pacific Apollo. Seafarers business repre- sentative told Sea-Land that it would not dispatch any longshoremen to perform the requested unloading work unless a longshoreman was put on the Manito- woc "4000" crane. A work stoppage thereafter occur- red. In a temporary adjustment of the dispute, Sea-Land agreed to accept the dispatch of a long- shoreman crane operator while continuing to assign the actual operation of the crane to Cagle. On June 3, Sea-Land filed a charge alleging violations of Section 8(b)(4)(i) and (ii)(D) of the Act by Seafarers, but, pending the Board's determination of the dispute, has continued to operate under the above-described ar- rangement. A. The Contentions of the Parties 1. Sea-Land takes no position as to the merits of the dispute and is willing to accept the Board's determina- tion of it. 2. Seafarers bases its claim to the disputed work primarily on the fact that the Manitowoc "4000" crawler crane is now being used to perform traditional longshore work as a result of mechanization and mod- ernization in the shipping industry, and that such crane has in fact replaced the shipboard cranes which were operated by longshoremen. Furthermore, it as- serts that there are provisions in its contract with Sea- Land which require the requested assignment. Final- ly, it argues that various longshoremen possess experience in operating cranes used for loading and unloading work, and that the factors of industry prac- tice, economy, and safety also support its position. 3. Operating Engineers argues that its members possess superior skills in crane operation, that its cur- rent contract with Sea-Land supports the assignment, and that such considerations as past practice and effi- ciency of operations weigh in its favor. B. Applicability of the Statute Before the Board may proceed with a Determina- tion of Dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred. In this case, the parties stipulated that a work stop- page of longshoremen occurred on or about May 27, 1970, in support of Seafarers' demand that the work of operating the Manitowoc "4000" crawler crane be assigned to longshoremen represented by Seafarers, rather than to employees represented by Operating Engineers. We conclude, on the basis of the record, that there is reasonable cause to believe a violation of Section 8(b)(4)(D) has occurred and that the dispute is proper- ly before the Board for determination under Section 10(k) of the Act. C. Merits of the Dispute In the CBS case,5 the Supreme Court charged the Board with the "responsibility and duty to decide which of the two or more employee groups claiming the right to perform certain work tasks is right and then specifically to award such tasks in accordance with its decision." Pursuant to that mandate, the Board, in International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Co.),6 stated that it would thenceforth determine the assignment of disputed work only after balancing all relevant factors. The factors described below are those asserted by the parties in support of their re- spective claims. 1. Collective-bargaining agreements Each of the union parties holds a current contract to which Sea-Land is a party. The Seafarers contract, effective from October 1, 1966, to September 30, 1917, contains the following relevant provisions: 1. The status quo as to the scope of longshoremen's -work shall be maintained. 2. The provisions of the Agreement shall apply to the handling of cargo and its transfer from vessel to first place of rest and vice versa and shall cover: All movement of cargo on vessels of any type or on docks or to and from railroad cars and barges at docks shall be covered by this, ' N L R B v Radio & Television Broadcast Engineers Union, Local 1212, International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broad- casting System], 364 U S. 573, 586 6 135 NLRB 1402 UNITED INDUSTRIAL WORKERS, PACIFIC DISTRICT and all labor involved therein is assigned to longshoremen.... 3. I. All machinery, equipment and other tools now or hereafter used moving cargo shall be op- erated by longshoremen when used in an opera- tion covered by this Agreement, and the operation thereof is assigned to longshoremen and is covered by this Agreement .... The contract further provides for "55 cents above basic straight time rate and 82 cents above basic overtime rates," for the above-described work. It does not specifically assign the operation of the disputed crane to longshoremen. The contract on which Local 302 relies is effective from July 1, 1968, to June 30, 1972, and describes its coverage as extending to "all engineers, apprentices and mechanics falling within the jurisdiction" of Lo- cal 302 within the State of Alaska. However, the wage schedule therein set our lists only the rates for "me- chanics" and for "mechanic helpers," and further pro- vides that "All other classifications and wage rates for the operation and maintenance and repair of heavy equipment fall within the scope of the Master Labor Agreement between the Alaska Chapter of the Associ- ated General Contractors of America, Inc., and Local 302...." We find neither of these contracts controlling with respect to the disputed work. Neither of them explic- itly confers the operation of the disputed crane to the employees each respectively covers, and both were made some time before Sea-Land began using the disputed dockside crane for the unloading of vessels.' 2. Company and industry practices Sea-Land's assignments, as reflected by the record in this case, indicate that it, like other employers en- gaged in similar operations in Alaskan ports, attempt- ed to divide the work of operating cranes used in unloading vessels at its own Alaska port between the two groups of employees here involved according to whether the cranes were located on board ship or on the dock. In other 10(k) cases in which we have been called upon to consider similar employer practices in Alaska, we have noted that, because of the increased use of containerized cargo for shipping purposes and the elimination of ships' cranes altogether, this dichot- omy no longer serves to delineate traditional long- shore work from other kinds of port jobs also requiring the use of cranes. Indeed, there is evidence that Sea-Land itself recognizes this as a reality. For, according to the testimony of J. A. Baker, general 7 Cf Albin Stevedore Company, supra, where we had before us somewhat comparable contractual claims by these same unions with respect to the operation of whirly cranes 243 manager for Sea-Land, Alaska Division, when the Manitowoc crane was put ashore, management had decided that a longshoreman should be assigned to the crane, and that he was surprised that this had not been done. Other employers in the maritime industry, as well as the unions representing employees in the industry, have also recognized that the trend has been toward the replacement of manpower by mechanized equipment, and have sought to cope with the ensuing problems in realistic fashion.8 As was pointed out in the Albin case, the West Coast longshore agreement, executed by the Pacific Maritime Association and various craft unions in 1961, had as its primary aim the lightenings of the impact of unemployment upon longshoremen due to mechanization, and the conse- quent promotion of industrial peace in this area of American industry. Recognizing the soundness of this objective, the Board relied on it as a factor favoring longshoremen in the hammerhead crane and whirly crane cases, even though these disputes also involved the Seafarers, which is not a signatory to the agree- ment, and the Alaskan port, which is not covered by the agreement. The disputed work in this case, like that in the hammerhead and whirly crane cases, is in the broad- est sense longshore work as it involves the loading and discharging of cargo from vessels. We see no reason therefore to deviate here from implementation of the above policy. We note in this respect that, as appears from a comprehensive view of all these crane disputes, the employers' use of dockside cranes as a substitute for shipboard cranes has progressed from the ham- merhead crane to the whirly crane and here to the crawler Manitowoc "4000" crane. In view of the above considerations, we find that industry practice favors the longshoremen. 3. Relative skills, economy, and efficiency of operations The factor of relative skill in the operation of the Manitowoc "4000" crawler crane seems, at the outset, to favor operating engineers since it is similar to the whirly crane 9 -one which has been worked by them in the Alaska area for some time. However, this ad- vantage is tempered by the record evidence that most of the Manitowoc crane work at Sea-Land's dock is performed by only one operating engineer, namely C. B See International Longshoremen's and Warehousemen 's Union and Interna- tional Longshoremen 's and Warehousemen 's Union, Local No 19 (American Mail Line, Ltd and Mobile Crane Company), 144 NLRB 1432, International Longshoremen's and Warehousemen 's Union and International Longshoremen's and Warehousemen 's Union, Local No 19 (Albin Stevedore Company and Alas- ka Freight Lines, Inc), 144 NLRB 1443 (relating to Longshoremen's and Warehousemen 's Union and its Local Union No 10 (Howard Terminal). 147 NLRB 359 9 If the crane is removed from the crawler tracks and mounted on a gantry, another type of track, it becomes in effect a whirly crane. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L. Cagle, who, until assigned this crane work, had been employed as a mechanic and had no prior expe- rience in the operation of this crane.1° Furthermore, Cagle testified that he learned to operate the crawler crane in about half an hour, and that "more than likely" any person with experience in operating any type of crane could learn to operate the crawler crane in the same length of time. As longshoremen had been assigned to the operation of cranes used for similar unloading work while the same were on shipboard, it is bovious that some among them have had experience in crane operation work and could easily learn to operate this crane within a short period of time. More- over, the record shows that Sea-Land and Seafarers have agreed to institute a joint training program on this crane. 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 can also interchange between the posi- tions of crane operator and hatchtender whose duties are to signal the operator and point out cargo in the ship's hold which the operator cannot see. Such an interchange would eliminate the need for a relief oper- ator, and it would also mean that the longshore opera- tor would perform with a higher degree of safety and efficiency because he would switch off the job at reg- ular intervals and gain familiarity with physical con- ditions aboard ship. As concerns operating engineers, their crane operators work with an oiler and helper, and neither interchanges with the hatchtender. Bal- ancing all the foregoing considerations, we find that, while both groups of employees possess the necessary skills to perform the disputed work, the factors of economy and efficiency of operations favor the Sea- farers' claim to the work. On several occasions when the Manitowoc crane was unloading from a barge, it became necessary for Sea-Land to fly an operating engineer in from Anchorage to Kodiak, a distance of 250 air miles, because of the unavailability of an oper- ating engineer in the Kodiak area. 4. Gain or loss of employment The record shows that, whereas membership in the 10 Cagle, however, had had extensive experience on the cranes in prior employment. Operating Engineers totals more than 1,600 employ- ees in the Kodiak area, membership in the Seafarers in the same area totals 20 registered longshoremen. The largest number of employment opportunities open to operating engineers in the Alaska area is in the building and construction industry. For long- shoremen employment opportunities are limited to the shipping industry. Placed in this context, a loss of one job opportunity for longshoremen is a significant one. Thus, we conclude that a finding herein that operating engineers are entitled to the operation of the Manitowoc "4000" crawler crane would bring about a significant loss of employment for longshoremen as contrasted with a minimal gain for operating engi- neers. Conclusions Upon the entire record in this case and the forego- ing consideration of all relevant factors, we conclude that longshoremen represented by the Seafarers are entitled to the work in question, and we shall de- termine the dispute in their favor. We do not, howev- er, award the work to the Seafarers or its members. In making this determination we particularly rely on the factors of industry practice, efficiency of operations, and employment opportunities. As we noted in the Albin case, in view of the mechanization and modern- ization within the maritime industry, assignments of stevedoring 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 Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board hereby makes the following determination of the dispute. Longshoremen employed by Sea-Land Service, Inc., Kodiak, Alaska, who are currently represented by United Industrial Workers of North America, Pa- cific District, affiliated with the Seafarers' Interna- tional Union of North America, AFL-CIO, are entitled to operate the Manitowoc "4000" crawler crane located on the U.S. Naval Station dock at Kod- iak, Alaska, in the loading and unloading of water vessels.