International Longshoremen, Local 50

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union, Local No. 50 (Brady-Hamilton Stevedore Company and Williamette Western Corporation) and Hoisting and Portable Engineers, Local No. 701, International Union of Operating Engineers, AFL-CIO International Longshoremen's and Warehousemen's Union, Local No. 50 (W. J. Jones & Son, Inc. and General Construction Company) and Hoisting and Portable Engineers, Local No. 701, International Union of Operating Engineers, AFL-CIO. Cases 36-CD-54 and 36-CD-54-2 September 21, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 13, 1971, Trial Examiner James T. Barker issued his Decision in the above-entitled consolidated proceeding, finding that Respondent Union had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supplement to exceptions, the Intervenor' filed exceptions to the Trial Examiner's Decision, with supporting briefs, and the Charging Party filed a brief supporting the Trial Examiner's Decision. 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 these cases to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, briefs, and entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, International Longshoremen's and Warehousemen's Union, Local No. 50, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. i Pacific Maritime Association and its members Brady-Hamilton Stevedore Company and W. J Jones & Son, Inc. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner: This matter was heard at Portland, Oregon, on January 14 and 15, 1971, pursuant to separate charges filed by Hoisting and Portable Engineers, Local No. 701, International Union of Operat- ing Engineers, AFL-CIO, hereinafter called Operating Engineers, in Cases 36-CD-54 and 36-CD-54-2, respec- tively. The charge in the first designated case was filed on April 8, 1969, by the Operating Engineers, and the charge in the latter case was filed on April 23, 1969. On October 8, 1970, the Acting Regional Director of the National Labor Relations Board for Region 19 issued an Order Consolidat- ing Cases, Consolidated Complaint, and Notice of Hearing alleging that International Longshoremen's and Ware- housemen's Union, Local 50, hereinafter called Respon- dent, the Longshoremen, or Local 50, was engaging in conduct in violation of Section 8(b)(4)(i)(D) of the National Labor Relations Act, as amended, hereinafter called the Act. Thereafter, on November 9, 1970, the Regional Director for Region 19 of the National Labor Relations Board issued an amendment to the consolidated complaint alleging that Respondent was engaging in conduct violative of Section 8(b)(4)(i)(ii)(D) of the Act. The Respondent timely filed an answer to the consolidat- ed complaint and to the amendment to the consolidated complaint. The parties and the Intervenor timely filed briefs with me on March 5, 1971.1 Upon consideration of the briefs and upon the entire record in this case,2 I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FACTS Willamette Western Corporation, hereinafter called Willamette, and General Construction Company, herei- nafter called General, are engaged in the construction industry and annually conduct business outside the State of Oregon in excess of $50,000. Brady-Hattulton Stevedore Company, hereinafter called Brady, annually performs stevedoring services for shipping companies sailing in intercoastal or international waters valued in excess of $50,000 and said shipping companies annually have a gross volume of business in excess of $500 ,000. W. J. Jones & Son, Inc., hereinafter called Jones , is an Oregon corpora- tion engaged in the performance of stevedoring services for shipping companies operating in interstate or in foreign commerce. Jones annually performs stevedoring services for shipping companies sailing in intercoastal or interna- i Pursuant to a pretrial motion which was granted by Trial Examiner James R. Webster, the Pacific Maritime Association , Brady-Hamilton Stevedore Company and W. J. Jones & Son, Inc ., were permitted to intervene in the proceedings and were represented at the hearing by counsel. 2 At the hearing the Trial Examiner ruled that the record in the Section 10(k) proceeding and the Board's Decision and Determination of Dispute, reported at 181 NLRB No . 51, would constitute part of the record in the instant case. 193 NLRB No. 37 INTERNATIONAL LONGSHOREMEN , LOCAL 50 tional waters valued in excess of $50,000, and said shipping companies annually do a gross volume of business in excess of $500,000. Pacific Maritime Association, hereinafter called PMA, is a California corporation admitting to membership employ- ers engaged in shipping, stevedoring, and terminal business at ports in California, Oregon, and Washington. Among its members are Jones and Brady. PMA was established and exists, inter aha, for the purpose of negotiating collective- bargaining agreements with unions on behalf of its employer-members. Upon these stipulated and/or admitted facts, I find that at all times material herein Willamette, General, Jones, Brady, and PMA have been, and are, employers within the meaning of Section 2(2) of the Act and have been, and are, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Hoisting and Portable Engineers, Local 701, Internation- al Union of Operating Engineers , AFL-CIO, and Interna- tional Longshoremen's and Warehousemen's Union, Local No. 50, are stipulated and/or admitted to be labor organizations within the meaning of Section 2 (5) of the Act, and I so find. iII. THE UNFAIR LABOR PRACTICES A. The Issues The General Counsel, resting on the Section 10(k) record, contends that the evidence adduced at that hearing, cognizable in this Section 10(c) proceeding, constitutes substantial, preponderating evidence in support of the unfair labor practice allegations of the complaint and asserts that findings of Section 8(b)(4)(i)(n)(D) violations on the part of Respondent should be made by the Trial Examiner. The Respondent and Intervenor raise several procedural defenses, and the Respondent contends that, even assuming rejection of these defenses, the record contains no evidence of conduct on the part of Respondent violative of Section 8(b)(4)(ii)(D) of the Act. In substance, the Respondent and Intervenor contend that (1) the notice of hearing should be quashed and the complaint herein dismissed because the procedures fol- lowed by the Board for resolving jurisdictional disputes fail to conform to the mandate of the statute and do not conform to the statutory procedures which were given delineation by the U. S. Supreme Court in the CBS case; 3 3 N L R B v Radio and Television Broadcast Engineers Union (CBS), 364 US 573 4 A consequence of this failure, contends the intervenor, is to leave the Longshoremen free to use lawful means to enforce its contractual rights to the work and thus to subject the employers to "anarchy" arising from the Board's asserted failure to issue a binding award of the work and to take steps under Section 10(e) to enforce the award 5 That case involved a charge filed by PMA, the Intervenor herein, on April 22, 1969, alleging violations of Section 8(b)(4)(i)(u)(D) arising from picketing engaged in by Local 701 of the Operating Engineers, at the Astoria, Oregon, facilities which had the purpose and object of forcing PMA to assign the work of driving cranes to its members rather than to registered longshoremen working under the ILWU-PMA Pacific Coast 267 (2) the Board's Decision and Determination of Dispute herein is legally deficient in that the Board failed to render a binding and compulsory determination of the dispute and/or to obtain compliance therewith; 4 (3) the notice of hearing herein should be quashed and the instant proceeding be postponed until an amended complaint based on the charges in Case 36-CD-555 is issued consolidating that case with those presently before the Trial Examiner in the instant proceeding so that, with Local 701 joined as a respondent with Local 50 in a Section 10(c) proceeding, a resolution can be reached concerning the disputed work assignment and a record made on which an orderly review of the Board's decision could be perfected; 6 (4) the record of the Section 10(k) proceeding should be struck and/or not considered in this Section 10(c) proceeding on the merits of the alleged unfair labor practice conduct, in that Section 102.92 of the Board's Rules and Regulations, Series 8, as amended, is "in violation of the law" and for the further reason that consideration in this Section 10(c) proceeding of evidence adduced in a Section 9 "type" hearing deprives the moving parties of due process of law; 7 (5) the Board procedure which treats its Decision and Determination of Dispute issued pursuant to a Section 10(k) proceeding as binding and conclusive in a Section 10(c) proceeding involving a purported violation of Section 8(b)(4)(D) of the Act is similarly deficient in legality and in meeting due process requirements; (6) for this latter reason it was error for the Trial Examiner at the instant hearing to reject evidence of the existence of an outstanding certification giving Local 50 jurisdiction over the disputed work and evidence allegedly establishing the existence of collective-bargaining agreements between the ILWU and PMA giving employees represented by Local 50 the right to perform the disputed work; (7) the Trial Examiner erred in rejecting evidence revealing that the work of loading logs at Astoria has since April 1969 been satisfactorily performed by longshoremen in that the evidence rejected related to a period subsequent to the Section 10(k) hearing and was thus not available for introduction at that heanng; and (8) the Board's Decision and Determination of Dispute was based upon errors of fact and law. B. Pertinent Facts 1. Background facts a. The setting This case arises from a dispute between the Operating Engineers and the Longshoremen over the right to man barge-mounted floating whirly-type cranes used by steve- contract who were at that point in time allegedly doing the work. The picketing was enjoined and the charge was dismissed by the Regional Director for Region 19 on July 28, 1970. 6 The intervenor contends, in apparent departure from the position of the Respondent on this motion, that the charges in each of the three aforesaid related cases should be held in abeyance pending the issuance by the Board of a binding and compulsory determination of the work assignment dispute such as is envisaged by the statute and required by the CBS decision. r The Respondent and intervenor contend that Congress intended Section 10(k) procedure to be special and unique and that in following Section 9 procedure in Section 10(k) hearings the Board errs. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dore companies in the Port of Astoria, Oregon, for lifting bundles of logs weighing from 25 to 45 tons from the water and placing them into the hulls of ships and barges. The whirly-type crane is manned by a crane operator and by a fireman or engineer. From 1964 until April 3, 1969, Operating Engineers had been used exclusively in operating the whirly-type crane. To facilitate the log-loading operation at the Port of Astoria, Brady and Jones, stevedoring companies engaged in loading of logs in the Port of Astoria, Oregon, leased waterborne whirly-type cranes from Willamette and General. Under the separate lease arrangements with Brady and with Jones, Willamette and General, respectively, at times pertinent herein, provided the employees to operate the cranes. In accordance with the terms of a bare-boat charter, employees provided to Brady by Willamette are deemed to be the employees of Brady. All of the employees who, prior to April 3, manned the floating cranes for Brady and Jones were, as found, members of the Operating Engineers. Immediately prior to April 3, 1969, the matter of manning the whirly-type floating cranes became an issue. As subsequently considered, on April 3 longshoremen refused to perform certain work tasks essential to the log- loading process. Consequently, the loading process came to a halt. The whirly-type floating cranes were not thereafter manned by employees represented by the Operating Engineers. The stevedore companies then assigned the work of loading logs to longshoremen. This assignment was subsequently confirmed by an arbitration award arising from a proceeding to which the Longshoremen and PMA were parties. The Operating Engineers were not a party to this arbitration proceeding. b. The Section 10(k) proceeding Pursuant to charges filed in the instant case, and to charges filed, as above noted, on April 22,1969, by PMA in Case 36-CD-55, the aforesaid cases were consolidated and a notice of hearing was issued directing that a Section 10(k) hearing be conducted into the work assignment dispute. In due course, a hearing was conducted pursuant to Section 10(k) of the Act. Thereafter, on February 26, 1970, the Board issued its Decision and Determination of Dispute wherein the Board found that employees "currently" represented by the Operating Engineers were entitled to perform the disputed work. On March 6, 1970, Respondent filed a Petition for Reconsideration and Clarification of Decision and Deter- mination of Dispute with the Board. On July 24, the Board issued an order denying Respondent's petition for reconsid- eration and subsequently PMA filed an application for stay with the Board. The application was denied on September 4, 1970. The Respondent concedes that since on or about $ Larson's job and responsibilities, at times pertinent herein, consisted, inter aha, of informing crane operators of Willamette as to the vessels on which they should work and as to the position on the vessel from which they should perform their work tasks For a period of approximately 3 years prior to April 3, Larson had been transmitting instructions to Stanton and Stanton had followed them. The testimony of Elwyn Ty Stanton and that of Norman Cass, equipment supervisor of Willamette, reveals that Larson, at times pertinent, possessed and exercised the authority of a February 26, 1970, it has failed and refused to comply with the Board's Decision and Determination of Dispute. 2. The alleged unlawful conduct a. The refusal to perform log-loading tasks On the morning of April 3, Elwyn Ty Stanton, a floating crane operator in the employ of Willamette and a member of the Operating Engineers, reported to work at the Astoria docks. Stanton had been in the employ of Willamette for approximately I1 years and had worked at the Astoria docks for approximately 5 years. On April 3, as was usual procedure, upon reporting to work at approximately 8 a.m. Stanton went aboard his assigned crane which was situated on a floating barge. In accordance with normal practice, at approximately 8 a.m. on April 3 Stanton moved the boom of the crane over the water causing the slings which are attached to the end of the boom to drop in a position proximate to logs which were floating in the water. It is usual work procedure at this point in the work process for a hookup crew of four men-designated as raftmen-who are members of the Respondent Longshoremen to secure the slings at the end of the crane boom to logs situated in the water. In this manner through the use of the crane the logs are loaded in the hulls of ships and barges. When, on the morning of April 3, the slings were presented to the raftmen, unlike previous occasions in the work experience of Stanton, the raftmen did not secure the logs. In a similar manner, on the morning of April 3, Stanton observed that the raftmen assigned to work with three other cranes of Willamette refrained from securing the logs when the slings were presented to them by the crane operators. This condition of inactivity with respect to the four Willamette cranes persisted for approximately 30 minutes. At this point in time, Dale Larson, a gear lockerman employed by Brady, the lessee of the floating cranes, approached Stanton and seven other operators and engineers in the employ of Willamette.8 Addressing Stanton and the seven other assembled crew members, Larson said, "You're fired; get your personal gear and get off." Larson added that longshoremen were going to operate the cranes. Stanton and his coworker, Paul Bell, left and thereupon made telephone calls to Willamette and the Operating Engineers, respectively. Later in the morning, Stanton observed individuals whom he recognized as longshoremen operating the floating cranes. At approximately 1 p.m., engineers who were members of the Operating Engineers and who were normally employed on the crews which were manned by Operating Engineers, shut off the power which operated the floating cranes. It was the daily responsibility of the engineers employed on the crews to shut off the power at the end of their work shift In like manner, upon reporting to work on the morning of supervisor within the meaning of the Act. 9 All of the foregoing is based upon the credited testimony of Elwyn Ty Stanton With respect to the techniques employed in securing the logs to the hoisting gear and the findings concerning the role of longshoremen crews in carrying out or facilitating the hoisting procedure, I also rely on the credited testimony of Bill Krohn. With respect to Stanton's testimony that he contacted Willamette on the morning of April 3 1 have also considered the testimony of Norman Cass . Cass confirms that Stanton INTERNATIONAL LONGSHOREMEN , LOCAL 50 269 April 3, Bill Krohn moved the hoisting gear of his floating crane over the logs situated in the water. This action conformed to Krohn's normal practice which he had followed during the 4-1/2 years of his work experience as a crane operator in the employ of General at the Astoria docks. Krohn observed that the raftmen to whom he presented the slings made no effort to secure the logs. Consequently, he left the crane gear hanging over the logs for approximately 30 minutes. The raftmen continued to abstain from securing the logs. Thereupon, Krohn left the crane and proceeded to the dock. Upon arriving at the dock, he spoke with John Tyler, a superintendent of Jones, the Company for which Krohn was performing services under the crane lease arrangement between General and Jones. Krohn asked Tyler if he knew anything about what was happening. Tyler responded that he did not know but that he would make some calls and find out. Tyler added that he knew that, "(t)hey would not be using the General cranes on this ship." Krohn did not thereafter operate a floating crane at the Astoria dock. Krohn observed that on April 3 four floating cranes of General were operative and that the hookup gear of each was extended over the floating logs in a manner permitting the raftmen situated on the logs to secure them for hoisting. Krohn further observed that, in each instance, raftmen refrained from securing the logs. Krohn testified that, by reason of his prior work at the Port of Astoria, he was acquainted with the four raftmen working in the water on the morning of April 3, whose normal task it was to secure the floating logs to the slings affixed to the boom of the crane which he was operating. When the four raftmen failed to secure the logs for hoisting after the boom had been placed over the floating logs, Krohn called to the raftmen. He inquired, "what was taking place." The raftmen responded that they knew nothing and that they had dust been told to stand by until further orders and not to hook up the logs. At a subsequent point in time, prior to 9 a.m., Tyler again spoke with Krohn. Tyler instructed Jones to remove the cargo gear belonging to Jones from the floating cranes and prepare to be towed to dockside. Krohn transmitted these instructions to the other crane operators. Because the tugboats necessary to tow the personnel and gear dockside were not available until approximately 2:30 p.m., Krohn remained on the floating cranes until the tugboats arrived. During the interim, Krohn observed longshoremen operating ships' gear endeavoring to load bundles of floating logs. Because of prevailing circum- stances, these attempts were unsuccessful, but by a modified approach the longshoremen were successful in loading individual logs aboard the ship. On April 3, Krohn and other personnel of General prepared the floating cranes for towing. On April 4, the cranes were towed approximately I mile upstream from the port dock area and were there moored. The crane personnel, exclusive of Krohn, completed the week doing maintenance work. Krohn remained at the Port of Astoria for approximately 2 weeks thereafter performing mainte- nance work on the cranes themselves.10 b. Radovich and Niemi converse In the meantime, at approximately 8:15 a.m. on April 3 Stanley Radovich, a superintendent of Brady who at relevant times was the superintendent in charge of the Astoria stevedoring operations of Brady , spoke with Roy Niemi . Niemi was at that time a member of Respondent's labor relations committee. Radovich approached Niemi and asked Niemi why the longshoremen were not hooking on the logs. Niemi responded that the 'longshoremen felt it was unsafe in view of the hard feelings that existed between Local 701 and ILWU Local 50.1i c. The joint telephone conference Thereafter, at approximately 8:30 a.m. on the morning of April 3 Donald Beal, labor relations administrator for PMA, participated with representatives of Respondent in what was essentially a conference telephone conversation of some I hour's duration. The telephone conversation was designated by the participants as a special meeting of the Astoria Joint Longshore Labor Relations Committee and conformed to procedures which were invoked by the participants in circumstances which necessitated immedia- cy of communication between the parties and which obviated travel between Astoria and Portland, Oregon. Don Beal, William Caruso, and Bill Church, all of whom were representatives of PMA, participated in the telephone conference from Portland. James VanOsdol, Gordon Kluge, and Glen Bird, all members of Respondent's labor relations committee, spoke from Astoria. The basic telephone conversation between these parties was punctuat- ed on occasions during the conversation with separate telephone conversations between the aforesaid participants and other individuals. These separate conversations were necessitated by issues which arose during the course of the basic dialogue and which related to the subject matter of the basic conversation. Beal testified that he had learned from Will Sheahon, superintendent for Brady, and from William Caruso, superintendent for Jones, that a work stoppage had transpired at Astoria. He placed the conference telephone call and during the course of the conversation was informed by VanOsdol that the work stoppage had transpired because of difficulties between Local 701 and Local 50 which were in the nature of "jurisdictional warfare." Representatives of Local 50 asserted that the ILWU had recently experienced "severe jurisdictional difficulties with several craft unions" and particularly with Local 701. Respondent's representatives added that efforts to resolve these jurisdictional matters had been rejected and that Local 50 had been warned by the craft unions that they intended to expand their jurisdiction. In the course of the contacted him on April 3 and that he instructed him and the other operators to "hang tough " and, in substance, await developments Cass recalled the call as occurring in the afternoon and not the morning as Stanton testified However, Cass lacked certitude in this regard I find that Stanton's accounting of the chronology was reliable and that he contacted Willamette in the morning. I conclude Cass was either mistaken as to the time of his conversation with Stanton or the Stanton-Cass conversation was in addition to the company contact to which Stanton testified. 10 The foregoing is based upon the credited testimony of Bill Krohn. 11 The foregoing is based upon the credited testimony of Stanley Radovich 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation, VanOsdol and Niemi stated that incidents had been reported in the Astoria area involving animosity between the two locals and that the animosity was a sufficient ground for Local 50 to consider it dangerous to the health and safety of its members to work under Local 701 crane operators. As a consequence, Beal was informed by VanOsdol and Niemi that the longshoremen were not going to work under Local 701 crane operators. As a result of the discussions which took place, the parties to the conference telephone conversation agreed to submit to arbitration the question of whether "(t)he working conditions that exist aboard these vessels [from which the floating cranes operated], as related to the use of nonlongshore crane drivers, are not unsafe." 12 d. The area arbitrator's decision In due course, on April 27, 1969, the area arbitrator issued a written decision in the matter . In pertinent part, the arbitrator's decision reads as follows: THE UNION'S POSITION It was the principal contention of the Union that they had recently experienced severe jurisdictional difficul- ties with several craft unions including Local 701-portable hoisting engineers. Repeated ILWU efforts to resolve these problems had been strongly rejected, and the craft unions had warned the ILWU that they intend to expand their jurisdiction on the waterfront. In view of this hostile atmosphere , the gangs assigned to these vessels stood by because the non-ILWU crane drivers represented an immediate danger to health and safety. THE EMPLOYERS' POSITION The Employers contended that since Local 701 crane operators had driven this equipment for years, have made no threatening remarks or gestures towards longshoremen , and their competency is not challenged, a real safety question does not exist under Paragraph 2.11 of Supplement III-Basic Agreement . Also, in the Employers' view, the basis of this dispute is jurisdiction-not safety-and work must continue under Section 1.52-PCLCD. DISCUSSION In the opinion of the Arbitrator, there could only be a condition involving health and safety in this series of operations if the nonlongshore crane operators were acting in a hostile or belligerent manner such as to create a dangerous working area for the longshore gangs. This not being the case, the peration is considered to be safe , and the Employers' Motion is sustained. DECISION The following oral decision issued to the parties is hereby confirmed: 12 The foregoing is based upon the credited testimony of Donald Beal Received in evidence at the Section 10(k) hearing was a summary of the conference telephone conversation which transpired on April 3 This summary was prepared by Bill Church , a representative of PMA, from secretarial notes There is no evidence to suggest that the summary, as prepared, was adopted or in any manner executed by representatives of Local 50. Beal testified that the summary constituted an accurate reflection of the conference conversations but his testimony on cross-examination 1. This is a jurisdictional dispute. 2. There was no bona fide health and safety issue. 3. There shall be no payment for standby time. 4. The jurisdictional issue shall be referred to the Joint Coast Labor Relations Committee for resolution as required by the Pacific Coast Longshore Contract Document. e. The coast labor relations committee meets Thereafter, on May 8, 1969, the coast labor relations committee met at a conference attended by William Forrester, a representative of the Respondent, and by three employer representatives, B. H. Goodenough, John Fenton, and J. J. O'Shea. The conference meeting was for the purpose of considering the decision of the area arbitrator which had been previously issued on April27. The minutes of the meeting reveal that the Employers took the position that the Union was not entitled to raise a grievance as to a work assignment dispute through the use of the health and safety grievance procedure of the contract. The Employers took the further position that the merits of the work assignment dispute must be raised in accordance with the provisions of section 1.7 and 1.5 of the contract and not under the provisions relating to disputes on health and safety. The Employers further pointed out at the meeting that they had received demands concerning the work assignment from Local 701 and were apprised that the National Labor Relations Board had filed an injunction claiming that the Operating Engineers had an arguable position countering the position of Local 50 on the Astoria crane dispute. Consequently, the Employers requested at the meeting that there be an agreement that the use of "jurisdictional health and safety" is improper under the contract and that any grievances as to work assignments should be presented pursuant to section 1.52 of the contract. The minutes of the meeting reflect the position of Local 50 as articulated at the meeting as follows: The union's position is that even if the union was wrong in proceeding through the agreed procedure for disputes with respect to health and safety, that procedure, like the basic procedure, specifically pro- vides that once the grievance machinery has been started the employers have a right only to continue work "in accordance with the specific provisions of the Agreement" if the matter "is covered by the Agree- ment", which is to use longshoremen on the Astoria water whirley [sic ] cranes, and not to direct work to continue in any other way while the dispute continues. The ILWU further asserts that it has been clearly established by the decisions of the Coast Committee interpreting the contract clauses, the contract clauses themselves, and the well-established practice in the Columbia River Area, as shown by Portland and the reveals that the summary was, in fact, a refinement and interpolation of some aspects of the conversation. I rely upon the summary only to the extent that it is consistent with Beal's oral testimony given at the Section 10(k) hearing. I specifically find, consistent with Beal's oral testimony and with a facet of the memorandum, that during the conference conversations it was implied and discussed that Local 701 had made known to Local 50 its intention to expand its jurisdiction on the waterfront. INTERNATIONAL LONGSHOREMEN, LOCAL 50 271 facts stated in the affidavits submitted, that this work has been assigned to the longshoremen by the collective-bargaining contract, that the longshoremen are entitled to this work in Astoria upon request, that a request was made for it, and that the longshoremen must be given this work and the employer was required to begin using longshoremen to do this work as soon as the grievance was mentioned. The requests from Local 701 must be denied. f. The coast arbitrator's decision The Joint Coast Labor Relations Committee, being unable at the meeting of May 8 to resolve the dispute before it, submitted the matter to the coast arbitrator on a point motion of the parties. By decision dated May 8, 1969, Sam Kagel, coast arbitrator, pursuant to a proceeding to which the Operating Engineers were not a party and in which they did not participate, sustained the position of the ILWU to the effect that, "The PMA Employers were and are required to operate in accordance with the [ILWU-PMA] contract, and specifically to use only longshoremen to operate floating whirly cranes in Astoria for loading logs Conclusions 1. The procedural issues The several procedural issues advanced by the Respon- dent and Intervenor for dismissing the instant complaint issued under Section 10(c) of the Act, or for otherwise quashing the notice of hearing herein, raise issues challenging in the most fundamental manner the legal propriety of the Board's procedures for resolving jurisdic- tional disputes under Section 10(k) of the Act and for determining whether or not an unfair labor practice has been committed in violation of Section 8(b)(4)(D) of the Act. The foundation for these related proceedings is imbedded in the Rules and Regulations of the Board and in case precedent formulated by the Board in light of the decision of the Supreme Court in the CBS case.13 Manifestly, for the Trial Examiner to rule favorably to the Respondent and Intervenor on the procedural issues which they have raised herein would require an exercise of discretion and amendatory authority which the Board has made clear is not his. I have carefully considered the 13 See, e g , International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Co) 135 NLRB 1402, 1410-1411, Local 991, International Longshoremen 's Association, AFL-CIO, Etc (Union Carbide Chemical Company) 137 NLRB 750, 754-755, Chicago Typographical Union No 16, AFL-CIO (Central Typesetting and Electrotyping Co) 138 NLRB 231, 236-237 Section 102.89 et seq of the Board's Rules and Regulations , Series 8, as amended. 14 At the hearing the Respondent and Intervenor through offers of proof which were rejected by the Trial Examiner endeavored to establish, in support of their respective motions to dismiss and to quash the notice of hearing, ( I) evidence of Board certifications and contractual commitments assertedly securing to the longshoremen the right to perform the disputed work , (2) arbitration awards supporting the claim of the longshoremen which were issued pursuant to the collective-bargaining agreements in effect between PMA and the Longshoremen ; (3) the existence of an historical claim on the part of the longshoremen to the disputed work as well as a history of actual performance by the longshoremen of log-loading tasks through use of ships' gear , and otherwise, at the Port of Astoria and motions and argument advanced by Respondent and Intervenor at the hearing, and I have similarly considered their respective briefs which renew the motions and amplify the supporting rationale therefor. In consideration thereof I find no warrant in this proceeding for departing from established Board precedent and procedure.14 Encompassed within this conclusion which I reach is my rejection of the contention that the instant proceeding is rendered defective by the General Counsel's dismissal of the charge against the Operating Engineers, filed by PMA in Case 36-CD-55.15 Similarly, I find without merit the assertion that factual distinctions attaching to two conten- tions raised by the Respondent and Intervenor render existing Board precedent inapplicable and leave the Trial Examiner free to dismiss the complaint. Initially, drawing upon the alleged viability of a Board certification in favor of the Respondent covering the disputed work, the Respondent and Intervenor contend that under the "unless" clause of Section 8(b)(4)(D), a Board certification constitutes an absolute defense to the allegations of the instant complaint. Upon this premise, and analogizing the decision of the Board in International Longshoremen's & Warehousemen's Union, et al., (United States Steel Corpora- tion) 153 NLRB 1363,16 the Respondent and Intervenor contend that the Board has recognized that evidence of an effort on the part of the company to assign disputed work to a respondent union in whose favor a Board certification had issued is relevant and competent evidence in an unfair labor practice proceeding under Section 8(b)(4)(D), and that rejection of such evidence in an unfair labor practice hearing wherein a certification is raised as a defense is error. A companion consideration, not predicated upon the "unless" clause or upon the dictates of the U. S. Steel case, but logically and legally indistinguishable, contend Res- pondent and Intervenor, is the existence of viable collective-bargaining agreements between the signing employer and the contending respondent union contractu- ally entitled to perform the disputed work. On these bases, contend Respondent and Intervenor, the Trial Examiner should dismiss the complaint. I find the U. S. Steel case to be inapposite and the contention of the Respondent and Intervenor with respect to the applicability of the certification and collective- bargaining agreements in the instant proceeding to be without merit. It is clear that in its Decision and Determination of Dispute in the Section 10(k) proceeding at other West Coast ports; (4) a continuing and viable claim by the longshoremen to the disputed work, and (5) an awareness and recognition on the part of officials of PMA-assertedly possessive of the ultimate right to assign crane operators to tasks being performed by member stevedoring companies-of the contractual and certification -based right of the longshoremen to the disputed work. I affirm my rulings. 15 Section 3(d) of the Act; United Brotherhood of Carpenters & Joiners of America, Local Union No 978, AFL-CIO, et a! (Markwell & Hartz) 120 NLRB 610, 612; Division 1267, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. Ordman, 320 F.2d 729 (C A D.C.), Balanyi v Local 1031, International Brotherhood of Electrical Workers, AFL-CIO, 374 F.2d 723 (C A 7) 16 In U S Steel, in finding a violation of Section 8(b)(4)(D) flowing from a failure on the part of the respondent therein to conform to a Section 10(k) determination, the Board specifically observed that the respondent had raised no contention that in assigning the work to the employees represented by the respondent the company was failing to conform to any order or certification of the Board. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board considered and rejected the certification and contract contentions. Thus, the Board noted: PMA and its members Brady and Jones take the position that the work should be assigned to the Longshoremen both by virtue of its relation to the normal waterfront longshore work and because the work allegedly is covered by a Board certification and by the labor agreement between PMA and Longshore- men. PMA and the Longshoremen claim that the work in dispute is covered by a certification, based on Ship Owners' Association of the Pacific Coast, et a!., 7 NLRB 1002, a 1938 case in which the Board certified the alleged predecessor of the Longshoremen as the representative of "the workers who do longshore work in the Pacific Coast port of the United States for the companies which are members of" specified employer associations allegedly the predecessors of PMA. However, that certification was issued before the advent of the barge-mounted floating crane. In addition, the record shows that all post-certification contracts between those parties and their successors limited the broad language of the certification by excluding some work from the unit covered. Recent PMA-Longshore- men contracts provide that "All machinery, equipment, and other tools now or hereafter used in moving cargo shall be operated by longshoremen when used in an operation covered by this Agreement and the operation thereof is assigned to longshoremen and is covered by this Agreement," with certain exceptions. One of the exceptions specified is the operation of cranes mounted on floating crane barges. In light of the foregoing evaluation, and after considering other evidence relevant to the assignment of the disputed work, the Board found that employees represented by the Operating Engineers were entitled to the disputed work rejecting implicitly, if not explicitly, the contention of PMA and the Longshoremen with respect to the controlling nature of the certification and of the PMA-Longshoremen contract. Also requiring delineation is the contention of the Respondent and the Intervenor that, in rendering its Decision and Determination of Dispute the Board failed, as required by CBS and the statute, to make a specific award of the disputed work. A careful reading of the Board's decision reveals that this contention is without merit. Thus, while refraining from, in terms, "awarding" the work to one of the contending found: parties, as is frequently Board practice,17 the Board nonetheless In light of the above, we conclude that the relevant factors support the Employers' original assignment of 17 See , e.g , Sheet Metal Workers Local Union No 332, AFL-CIO (Lear- Siegler, Inc) 176 NLRB No 41, wherein the Board observed, "(w)e shall accordingly determine the dispute before us by awarding all installation of heating equipment 18 The Court in CBS stated, "it is the Board's responsibility and duty to decide which of 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." [Emphasis supplied ] 19 See, e.g., International Union of Operating Engineers, Local Union No this work to employees represented by the Engineers, and that the employees are entitled to the disputed work. We shall therefore determine the dispute in their favor. As is clear from the Board's Decision and Determination of Dispute, the Board determined the dispute before it by finding specifically that the Operating Engineers were entitled to perform the work which it had described with specificity within the body of its decision. In finding that the Operating Engineers were "entitled" to the disputed work, and in then determining the dispute "in favor" of the Operating Engineers, the Board was, substantively and definitively, making an award or an assignment of the work. It augmented this determination by the further directive that the longshoremen were "not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employers to assign the above work to longshoremen represented by it." It is clear that the Board has construed the directive of the Supreme Court in the CBS case 18 as not requiring the "award" of disputed work assignments to be phrased in formula terms so long as it is specified definitively in the Decision and Determination of Dispute which of the groups claiming the right to perform the disputed tasks is entitled to the work.19 Similarly, the proscription in the Board's Decision and Determination of Dispute in the instant case against Respondent's use of means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employer to assign the work in issue to its members is the proscription which the Board has customar- ily included in its post- CBS Decisions and Determinations of Dispute.20 2. The merits The evidence establishes that Respondent has not at any time since its issuance complied with the Board's Decision and Determination of Dispute. Accordingly, the only remaining issue is whether Section 8(b)(4)(i)(ii)(D) was violated, as alleged in the complaint. The evidence above recounted, including the abstention of the raftmen assigned to eight different cranes from performing their work tasks; the concession of the four raftmen to Krohn that they had been ordered to stand by until further orders; the statement of Roy Niemi to Stanley Radovich concerning the asserted reason for the actions of the raftmen and the statements of Respondent's representa- tives on the same subject made to representatives of PMA at the April 3 special meeting of the Astoria Joint Longshore Labor Relations Committee "meeting" all establish-the latter conclusively so-the existence on April 3 of a Local 50 directed and supported policy of withholding in furtherance of Respondent's labor relations objective the services of longshoremen-raftmen. The evidence reveals a policy on the part of Respondent, extant 181 (E C Ernst, Inc) 174 NLRB No 45, International Brotherhood of Electrical Workers, Local 113, AFL-CIO (Westland Theatres, Inc) 180 NLRB No 20, Local 991, international Longshoremen's Association, AFL-CIO, Etc (Union Carbide Chemical Company), supra, p 755 20 See N L R B v International Longshoremen's and Warehousemen's Union, et al (Aluminum Company of America), 413 F 2d 30 (C.A 9), enfg 163 NLRB 1039, based upon conduct relating to the Board's Decision and Determination of Dispute reported at 158 NLRB 1024 INTERNATIONAL LONGSHOREMEN, LOCAL 50 273 on April 3, 1969, and persisting at times relevant herein, not to permit its members to perform any work in connection with the disputed log-loading assignment unless all the work required to successfully complete the assignment was performed by its members. Accordingly, I find that Respondent engaged in conduct rendering it responsible for the work stoppage that transpired, and that by and through its conduct which gave effectuation to its policy Respondent induced and encouraged raftmen employees, all of whom were its members, to engage in a strike. The evidence leaves little doubt that an object of the strike was to preempt the claim of the Operating Engineers to the work of operating the barge-mounted cranes and to force and require Brady and Jones to assign those work tasks to members of Respondent instead of employees represented by the Operating Engineers. Considerations of health and safety were manifestly secondary and subordinate in nature to the jurisdictional considerations underlying the policy. Indeed, the decision by Respondent to claim the work may not be viewed as being unrelated tactically to efforts of craft unions, including the Operating Engineers, to expand their respective work jurisdictions along the waterfront. As the evidence establishes a strike by Respondent and successful inducement and encouragement of employees to engage in a strike and to refuse to perform employment services, all for the proscribed object of forcing Brady and Jones to assign the work of operating the floating cranes to members of Respondent to the exclusion of members of the Operating Engineers, I find that Section 8(b)(4)(i)(n)(D) was, and has been, violated by Respondent.21 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Employers described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Hoisting and Portable Engineers, Local No. 701, International Union of Operating Engineers , AFL-CIO, and International Longshoremen's and Warehousemen's Union, Local No. 50, are labor organizations within the meaning of Section 2(5) of the Act. 2. Willamette Western Corporation; General Construc- tion Company; W. J. Jones & Son, Inc.; Brady-Hamilton Stevedore Company; and Pacific Maritime Association are, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) and of Section 8(b)(4) of the Act. 3. The Respondent has failed and refused to comply with the Decision and Determination of Dispute issued by the Board on February 26, 1970. 4. By inducing and encouraging the employees of Brady and of Jones to engage in a work stoppage or otherwise to refuse to perform services for their respective employers and by threatening, coercing, and restraining Brady, Jones, Willamette, General, and PMA with an object of forcing or requiring Brady and Jones to assign the work of operating barge-mounted floating whirly-type cranes to employees who are members of or represented by the Respondent rather than to employees who are represented by the Operating Engineers, all in a circumstance wherein Brady and Jones were not failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i)(ii)(D) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 22 ORDER Respondent, International Longshoremen's and Ware- housemen's Union, Local No. 50, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in or inducing or encouraging any individual employed by Brady-Hamilton Stevedore Com- pany, W. J. Jones & Son, Inc., or any other person engaged in commerce or in an industry affecting commerce to engage in a strike or refusal, in the course of his employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threatening, coercing, or restraining Brady-Hamilton Stevedore Compa- ny; W. J. Jones & Son, Inc.; Willamette Western Corporation; General Construction Company; Pacific Maritime Association, or any other employer or person engaged in commerce or in an industry affecting com- merce, where, in either case, an object thereof is to force or require Brady-Hamilton Stevedore Company and/or W. J. Jones & Son, Inc., to assign the work of operating barge- 21 Chicago Typographical Union No 16, AFL-CIO (Central Typesetting and Electrotyping Co ), supra, Local Union No 272, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Prestress Erectors, Inc) 172 NLRB No 19, enfd 427 F 2d 211 (CA 5), Local 25, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company) 162 NLRB 703, see also Local Union 825, International Brotherhood of Operating Engineers, A FL-CIO (Carleton Brothers Company) 131 NLRB 452 22 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mounted whirly-type cranes at the Port of Astoria, Oregon, lifting bundles of logs from the water and placing them into the hold of a ship or a barge, to employees who are members of or represented by Respondent rather than to employees of Brady-Hamilton Stevedore Company and/or W. J. Jones & Son, Inc., who are represented by Hoisting and Portable Engineers, Local No. 701, International Union of Operating Engineers, AFL-CIO, unless Brady- Hamilton Stevedore Company and/or W. J. Jones & Sons, Inc., are failing to conform to an order or certification of the National Labor Relations Board determining the bargaining representative for employees performing such work. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places in its business offices, meeting halls, and all other places where notices to members are customarily posted copies of the attached notice marked "Appendix." 23 Copies of said notice, on forms provided by the Regional Director for Region 19, shall, after being duly signed by an authorized representa- tive of Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be by it taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 19 for posting by Brady- Hamilton Stevedore Company, W. J. Jones & Son, Inc., Willamette Western Corporation, General Construction Company, and/or Pacific Maritime Association at all locations where notices to their respective employees are customarily posted, said Employers willing. (c) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply herewith.24 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 24 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government individual employed by Brady-Hamilton Stevedore Company and/or W. J. Jones & Son, Inc., or any other person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or threaten, coerce, or restrain Brady-Hamil- ton Stevedore Company, W. J. Jones & Son, Inc., Willamette Western Corporation, General Construction Company, Pacific Maritime Association, or any other employer or person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require Brady-Hamilton Stevedore Company and/or W. J. Jones & Son, Inc., to assign the work described below to employees who are members of or represented by Local No. 50, the Respondent herein, rather than to employees of Brady- Hamilton and/or W. J. Jones & Son, represented by Local No. 701 of the Operating Engineers, unless Brady-Hamilton and/or W. J. Jones & Son is or are failing to conform to an order or certification of the National Labor Relations Board determining the bargaining representative for employees performing such work. The work involved consists of: Operating barge-mounted floating whirly-type cranes lifting bundles of logs from the water and placing them into the holds of ships and barges at the Employers' Astoria, Oregon, operations. Dated By INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL No. 50 (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 310 Six Ten Broadway Building, 610 S W Broadway, Portland, Oregon 97205, Telephone 226-3431. WE WILL NOT engage in, or induce or encourage any