Longshoremen's Local No. 440

LONGSHOREMEN'S LOCAL NO. 440 Local No. 440, affiliated with South Atlantic and Gulf Coast District, International Longshoremen's Asso- ciation, AFL-CIO and Local No. 1029, affiliated with South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO and Port Arthur Stevedores, Inc. Local No. 440, affiliated with South Atlantic and Gulf Coast District, International Longshoremen's As- sociation, AFL-CIO and The Port of Port Arthur Navigation District of Jefferson County, Texas and Port Arthur Stevedores, Inc. and Local No. 1029, affiliated with South Atlantic and Gulf Coast District, International Longshoremen's Associa- tion, AFL-CIO. Cases 23-CD-278 and 23-CD-279 August 8, 1972 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Local No. 1029, affiliated with South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO, and the Port of Port Arthur Navigation District of Jefferson County, Texas, alleging that Local No. 440, affiliated with South Atlantic and Gulf Coast District, Interna- tional Longshoremen's Association, AFL-CIO, has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed conduct with an object of forcing or requiring Port Arthur Stevedores, Inc., the Employer herein, to assign the work in dispute exclusively to longshoremen represented by Local No. 440 rather than equally between those represent- ed by Local No. 440 and others represented by Local No. 1029. Pursuant to notice, a hearing was held before Hearing Officer William H. Helms in Houston, Texas, on January 25, 26, and 31, 1972. All parties were afforded full opportunity to appear at the hearing, to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, Locals No. 440 and No. 1029 filed briefs. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following findings: 1. THE BUSINESS OF THE EMPLOYER The parties stipulated that the Port of Port Arthur is a navigation district of Jefferson County, Texas, 785 which was created by the State of Texas for the purpose of operating publicly owned wharves and docks; and that during the past 12 months, the Port of Port Arthur, in the course and conduct of its business operations, received gross revenues in excess of $500,000 of which an amount in excess of $50,000 was received from the performance of services for customers whose places of business are located outside the State of Texas. The parties further stipulated that Port Arthur Stevedores, Inc., is a Texas corporation engaged in the stevedoring business at Port Arthur, Texas; and that during the past 12 months, the Company has performed warehousing services for the Port of Port Arthur valued in excess of $50,000. Based on the foregoing, we find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Locals No. 440 and No. 1029, both affiliated with South Atlantic and Gulf District, International Longshoremen's Association , AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 111. THE DISPUTE A. Background and Facts of the Dispute Prior to the events giving rise to this proceeding, three locals of the ILA, each possessing "deep sea" (general) charter jurisdiction, furnished the necessary labor to perform all longshore work at Port Arthur. These locals were organized along racial lines: No. 440 and No. 1175 being "predominantly" Black and No. 1029, white. In 1969, new port facilities were opened at Port Arthur. This resulted in a marked increase in warehouse work, which was performed exclusively by longshoremen hired through Local No. 440, at the suggestion of J.E. Williams, secretary and treasurer of the South Atlantic and Gulf Coast District, ILA. In February 1971, representatives of Port Arthur Stevedores, Inc., the ILA District, and the several ILA locals in the Port Arthur area met to discuss the division of warehouse work among the several locals. According to the testimony of James Flanagan, president of Port Arthur Stevedores, this meeting was prompted by the fact that "efficiency was not up to par with that of neighboring and competing ports." After the meeting, on April 26, 1971, Ralph Massey, president of the ILA District, advised Port Arthur Stevedores that, henceforth, warehouse work would be allocated equally to Locals No. 440, No. 1175, 198 NLRB No. 116 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and No. 1029. Thereafter, the work in question has been assigned on a 50-50 basis between Locals No. 440 and No. 1029, Local No. 1175 having declined to accept its share. Notwithstanding, Local No. 440 initiated action to change its charter jurisdiction to general warehouse work. This effort was successful and on August 23, 1971, President Massey forwarded a new charter to Local No. 440, which granted the Local exclusive jurisdiction over all warehouse work in Port Arthur. However, in an accompanying letter, Massey made it clear that employees from all locals theretofore performing warehouse work would still be able to do so under a portwide hiring hall seniority system. He also advised that, under this change in charter jurisdiction, Locals No. 1029 and No. 1175 would share, on a 50-50 basis, all deep sea longshore work in the port. Finally, he cautioned: "You all are aware as a matter of law, anyone applying for work through any ILA local will be given consideration regardless of race, creed or color." Thereafter, Local No. 440 demanded that Port Arthur Stevedores place all calls for warehouse labor through its hiring hall. These demands went unheed- ed, and the Company continued to assign the disputed warehouse work equally between Locals No. 440 and No. 1029.1 On October 14, 1971, Local No. 440 commenced picketing in furtherance of its demands. The picketing ceased by stipulation in lieu of a 10(1) injunction. Bearing upon the issues raised in this case is a suit brought by the United States Attorney General under Title VII of the Civil Rights Act of 1964, against the ILA, the South Atlantic and Gulf Coast District, and 37 locals, including Locals No. 440 and No. 1029, alleging a pattern or practice of discrimi- nation on grounds of race, color, and national origin.2 Specifically, the Attorney General alleged that the defendants maintained local unions, hiring halls, and work gangs which were classified and segregated on the grounds of race and national origin. The court, in its memorandum of November 12, 1971, found that the ILA locals involved were chartered and continually maintained on a segregat- ed basis. It found further that a prevailing rule dividing work equally between Black and white locals in the various ports violates Title VII of the Civil Rights Act, because such a rule deprives longshoremen, "be they Black or White, Anglo, Mexican-American or Negro, equal working oppor- tunities depending on which group is in the majority in the different ports. . . ." However, the court It is the Employer's practice to distribute the work requirements for any given day equally among the same number of five-man gangs furnished by each of the competing locals failed to grant the Attorney General's request for an order compelling merger of the segregated locals and the discontinuance of separate locals, hiring halls, and gangs based on race and national origin. Instead the parties were invited to file an expedited appeal, under 28 U.S.C. 1292(B), with the Court of Appeals for the Fifth Circuit. At the hearing held herein, counsel for the defendants stated their intention not to file an expedited appeal. The record does not reveal the position of the Attorney General nor does it indicate that a decree has been entered in the case. B. The Work in Dispute The parties are in general agreement that the work in dispute involves warehouse work, which includes the work of loading and unloading railroad cars from car to pile and from pile to car; loading and unloading trucks and vehicles; sewing sacks and cooperage; piling dunnage; handling, segregating, and chopping all freight; bracing cars; and operating tractors and lift trucks when used in freight handling (not including repairs to such equipment). C. Contentions of the Parties Local No. 1029, the Charging Union herein, urges that the Board adhere to the Employer's work assignment and award the disputed work equally between the contending locals. In support of its position, the Local, alluding to the testimony of John Gibson, the Employer's superintendent at Port Arthur, contends that the employees it represents can handle certain cargo more efficiently than can those employees represented by Local No. 440. The Charging Union also asserts that Local No. 440 is alone unable to supply a sufficient work force to satisfy the Employer's demand for warehouse labor. The Union offers no other factor as a basis for an award herein, nor does it comment on the relevancy of the matter pending before the court under the Civil Rights Act, aforementioned. Local No. 440, the Respondent herein, contends that its claim to exclusive jurisdiction over all warehouse work at Port Arthur is consistent with the "present" ILA policy of granting only one charter for one type of work in a given locality, that this policy eliminates racial discrimination by affirmative ac- tion, and that an award of any part of the disputed work to Local No. 1029 would be at variance with the Civil Rights Act and would undermine prior Board law.3 The Port of Port Arthur Navigation District (a 2 U S District Court for the Southern District of Texas, Brownsville Division, Civil Action No 69-B-3 3 See Local 1367, International Longshoremen's Association, AFL-CIO, et LONGSHOREMEN'S LOCAL NO. 440 787 Charging Party), the ILA, its district affiliate, and Port Arthur Stevedores, Inc. (Employer), did not file briefs. Neither did they state their respective posi- tions at the hearing held herein. D. 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 that Section 8(b)(4)(D) has been violated and that there is no agreed-upon method for voluntary adjustment of the dispute. The parties stipulated that Local No. 440 com- menced picketing at the premises of the Port of Port Arthur on October 14, 1971. It is clear that such picketing was undertaken by the Local in support of its demand that the Employer assign to its exclusive jurisdiction over the work in dispute. No one claims the existence of an agreement which binds the parties to a voluntary adjustment of the controversy, nor does the record reveal that such an agreement exists. In these circumstances, we find there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred and that the dispute is properly before us for determination under Section 10(k) of the Act. registration for referral through the Local No. 440 hiring hall of others presently being referred through Local No. 1029. Equally unavailing is the Employer's present work assignment which has, like others in the past, been made at the request of ILA District officials. This indication of the Employer's indifference with respect to the assignment of the disputed work is underscored by the Employer's subsequent failure to file a brief with the Board or otherwise to set forth its position. On the other hand, grave doubts are raised concerning the legality of this assignment in view of our decision in Local 1367, 6 and the suit brought by the United States Attorney General under the Civil Rights Act. In these circumstances, we regard the ILA grant to Local No. 440 of exclusive charter jurisdiction over the performance of all warehouse 'work at Port Arthur as controlling. This grant represents an effort to eliminate racial discrimination by affirmative action in a manner which will, moreover, assure to all qualified employees in the Port Authur area, whatever their union affiliation, an equal opportunity to engage in the disputed work. Conclusion E. Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors.4 As the Board has stated, its determination in a jurisdictional dispute case is an act of judgment based upon commonsense and experience in the weighing of these factors.5 The factors normally considered by the Board in its determination of dispute are discernibly absent in this case. There are no outstanding Board certifica- tions or orders requiring that Port Arthur Stevedores bargain with either of the contending Locals. There are no contracts affecting the assignment of ware- house work. What skill this work requires is pos- sessed equally by the longshoremen of all the locals. The testimony of Superintendent Gibson, a witness called by the Charging Union, concerning the relative efficiency of the gangs furnished by the contending locals is limited to a discussion of only one type of cargo handled and is not supported by the Employer. The admitted inability of the Respon- dent Local to furnish sufficient labor from its own list of job applicants could be remedied by the a!, 148 NLRB 897, affil sub nom Galveston Maritime Association, 368 F 2d 1010 (C A 5), where the Board held that the maintenance and enforcement of a percentage work distribution formula between two locals , based upon race and union membership, violated the Act 4 N L R B v Radio & Television Broadcast Engineers Union, Local 1212, Upon the entire record in this proceeding and in view of the foregoing considerations, we conclude that employees represented by Local No. 440 are entitled to the work in question, and we shall determine the dispute in their favor. In making this determination, however, we are assigning the disput- ed work to employees represented by Local No. 440 and not to that Union or its members. 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 proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: Employees who are represented by Local No. 440, affiliated with South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO, are entitled to perform all warehouse work by Port Arthur Stevedores, Inc., for the Port of Port Arthur Navigation District, Jefferson County, Texas, which work includes loading and unloading railroad cars from car to pile and from pile to car; International Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting Systems], 364 U S 573 5 International Association of Machinists , Lodge No /74), AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 6 Fn 3, supra 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD loading and unloading trucks and vehicles; sewing and operating tractors and lift trucks when used in sacks and cooperage ; piling dunnage ; handling, freight handling (not including repairs to such segregating, and chopping all freight; bracing cars ; equipment).