ILA, Local 26

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles and Long Beach Harbor Watchmen and Guards, International Longshoremen's and Ware- housemen's Union, Local 26 and American Plant Protection, Inc. and American Federations of Guards, Local 1. Case 21-CD-347 May 13, 1974 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS tion, Inc., is an employer within the meaning of Section 2(2) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The parties have stipulated, and we find, that ILWU Local 26 and AFG Local 1, are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED DISPUTE A. The Facts This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by American Plant Protection, Inc., hereinafter called Charging Party, alleging that Los Angeles and Long Beach Harbor Watchmen and Guards, International Longshoremen's and Ware- housemen's Union, Local 26, hereinafter Respondent or ILWU Local 26, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring United States Lines, and Marine Terminals Corporation to assign work in dispute to employees represented by Res- pondent, rather than to certain of the Charging Party's employees represented by American Federa- tion of Guards, Local 1, herein called AFG Local 1. A hearing was held on July 26, 27, 30, and 31, 1973, before Hearing Officer Robert G. Chavarry. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues.' Thereafter, the Charging Party and the Respondent filed briefs. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER American Plant Protection, Inc., is engaged in the business of performing guard services and in the 12- month period preceding July 1, 1973, American performed services valued in excess of $140,000 for Marine Terminals Corporation, which is engaged in stevedoring and terminal management for various shipping lines, including U.S. Lines. The parties stipulated, and we find, that American Plant Protec- The Charging Party and the Respondent stipulated that the work in dispute consists of: Providing guard and watchman services at the United States Lines with respect to cargo operations conducted by and for U.S. Lines at Berth 230, Pier G, Port of Long Beach, Long Beach, California. The facts leading up to the present dispute are as follows: In January 1971, U.S. Lines, a shipping corpora- tion, resumed operations in Los Angeles-Long Beach Harbor, after a hiatus of nearly 4 years. It signed a contract with Trans Ocean Gateway, terminal operators, hereinafter TOG. The facility covered by this agreement was a container terminal located at Pier J, Port of Long Beach, Berth 246. Under this agreement and an amendment thereto dated October 1, 1971, TOG loaded and discharged U.S. Lines' container vessels, performed all related services, and ran the container freight station . Guard and watch- man services were also provided by TOG under these agreements. For these services, TOG contracted with Newton Guard Service, later Lawrence Security Service Incorporated. The relationship between TOG and U.S. Lines was terminated in May 1972, when Crescent Wharf and Warehouse Company and its wholly owned subsidi- ary, Pacific Container Terminals, succeeded TOG in performing services at this container terminal. Crescent performed the same services theretofore performed by TOG, including the providing of security or guard service until April 1973. Crescent, however, used members of ILWU Local 26 to perform the terminal guard services. During the period from January 1971 through April 1973, there were occasions when U.S. Lines itself directly engaged the services of guards and watchmen as gangway watchmen. The function of the gangway watchmen is to check everyone coming on and off the vessel. Gangway watchmen were 1 Counsel for Respondent has objected to this proceeding on the grounds Association determined not to participate in this proceeding after that U.S Lines, Pacific Maritime Association, and Marine Terminals consultation with independent counsel . We find no merit in Respondent's Corporation did not participate in the hearing Nevertheless , the record is objection. We also note that no appearances were made at the hearing on clear that all interested parties were served Notice of Hearing and the Order behalf of AFG Local 1 . As stated, this Union represents the guards and Rescheduling Hcanng. Furthermore, U.S. Lines and the Pacific Maritime watchmen employed by the Employer. 210 NLRB No. 79 ILA, LOCAL 26 required if there were a person aboard the vessel who was not permitted by the United States Immigration Service to come ashore. The guards hired directly by U.S. Lines during this period were hired for services which are not part of the cost of moving cargo. These include primarily the gangway watch necessary when there are detainers, but there were one or two instances when Newton Guard Service (later bought out by Lawrence Security, which carried on the servicing of Newton's clients) provided a money courier service in connection with the ships payroll for its crew. This latter service also involved no charges in connection with moving or handling of cargo. But the basic security for the container terminal, which did form a part of the cost of moving cargo, was furnished by TOG, and later by Crescent, under the aforesaid agreements with U.S. Lines. During the period when TOG was providing the overall terminal service, U.S. Lines hired these additional guards from Lawrence Security, the company which was providing terminal guard service to TOG. After Crescent took over, U.S. Lines hired additional gangway guards, as necessary, through Crescent from nud-1972 up to and including April 1973. The guards obtained from Crescent and from PCT were Local 26 members. On May 1, 1973, U.S. Lines began operating its own container terminal at Pier G, together with a container freight station on Windham Avenue in Long Beach. U.S. Lines entered into an agreement with Marine Terminals Corporation (hereafter MTC) with respect to the operation of the Pier G facility and the container freight station . Under its contract with U.S. Lines, normal guard service for the terminal and the container freight station is provided by MTC and the cost thereof is part of the basic "pick rate" set forth in the contract. The "pick rate" is the total cost of loading or unloading a container. MTC made arrangements with the Charging Party, American Plant Protection, Inc., to provide the normal guard service for U.S. Lines terminal and freight container station. In the period May 1, 1973, to May 17, 1973, U.S. Lines on one occasion engaged gangway watchmen directly from the Charging Party. Joe Ibarra, business agent for ILWU Local 26, testified that upon learning on May 6, 1973, that members of another union were performing guard services for U.S. Lines he attempted to contact U.S. Lines. However, after being unable to get in touch with any official of U.S. Lines he caused picket signs to be set out that day. The signs read: U.S. Lines give us back our jobs, ILWU Local 26 575 Later that day, Ibarra managed to talk with a representative of MTC and U.S. Lines. It was agreed that Ibarra would remove the pickets and that a meeting would take place the following day. At that meeting, Ibarra made it known to those present that ILWU Local 26's dispute was with U.S. Lines. It was Ibarra's contention that U.S. Lines had a contract with ILWU Local 26. Pearce, the representative of MTC, told Ibarra that it was MTC and not U.S. Lines which had employed the services of American Plant Protection, Inc., and that MTC desired to retain it. Again Ibarra indicated that the problem was with U.S. Lines, not with the Charging Party. Ibarra informed those present that he knew that U.S. Lines could force MTC to "break off with American Plant Protection and use Local 26's Guards." On May 12, 1973, ILWU Locals 13 and 63 advised Pacific Maritime Association (hereafter PMA) that they would honor any picket lines put out by their sister Local 26. ILWU Local 26 again set up picket lines on Berth 230, Pier G. The legends on the signs were the same as those on May 6, 1973. Ibarra admitted that ILWU Local 26 hoped that the pickets would bring pressure to bear on U.S. Lines and force it to get rid of American Plant Protection through MTC. On May 17, 1973, another meeting took place between ILWU Local 26, U.S. Lines, MTC, and PMA at which U.S. Lines agreed to use ILWU Local 26 guards at Pier G. This meeting resulted in an agreement in the form of a letter of intent. From the date of execution of that document to the present, MTC has used ILWU Local 26 members to provide guard service under MTC's contract with U.S. Lines. Pursuant to this agreement, MTC requested Ameri- can Plant Protection to remove its guards from Pier G. American Plant Protection complied with this request. The Respondent, ILWU Local 26, introduced a series of exhibits purporting to show labor agree- ments between it and U.S. Lines, dating as far back as 1950. Lloyd Selliger, a ILWU Local 26 witness, testified that he had negotiated a number of these contracts on behalf of the Respondent and that he then gave copies of such agreements to the then terminal superintendent for the U.S. Lines in the harbor area, Harry DeLavergne. DeLavergne in- formed Selliger that although he could not execute these agreements because he did not have permission to do so from New York he would abide by them. Joe Ibarra testified that he personally visited DeLav- ergne in 1966 and DeLavergne again agreed to live up to the agreements. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted earlier, U.S. Lines ceased operating on the West Coast about November 1967 and did not return to the West Coast until sometime in 1972, when it returned and berthed its ships at Pier J, Berth 246. It contracted with Crescent Wharf and Ware- house to perform its stevedoring and security work. Crescent's guards were members of ILWU Local 26. This arrangement lasted until May 1, 1973, when U.S. Lines transferred to Pier G, Berth 230, where the instant labor dispute took place. Subsequent to the picketing of U.S. Lines at Pier G, an arbitration proceeding was held by an arbitrator, pursuant to the PMA-ILWU contract to determine whether or not tle picket line set up by ILWU Local 26 was a bona fide picket line. The arbitrator ruled that the picket line directed against U.S. Lines was a bona fide picket line under the longshore contract. B. The Contentions of the Parties ILWU Local 26 contends that its picketing for the purpose of enforcing its contractual rights and to achieve a proper work assignmem was not an unfair labor practice within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act. ILWU Local 26 contends that it has a contract rignt to the work in question. The Charging Party contends that an assignment of the work involved to members of ILVvU Local 26 would violate the policy of Section 9(b)(3) of the Act, insofar as such an assignment would constitute an affirmative recognition by the Beard that a unit consisting of guard and nonguard employees is appropriate, and would constitute a de facto certifica- tion of ILWU Local 26 as the bargaining representa- tive of a mixed guard-nonguard unit. Further, the record demonstrates that on the merits of the 10(k) dispute the work involved should be assigned to the Charging Party's employees. Inso'ar as the particular work assignment involved in this proceeding is concerned, e.g., the provision of guard and watch- man services at the U.S. Lines container terminal located at Berth 230, Pier G, Pcrt of Long L.;ach, all three levels of employers had chosen employees of Charging Party as the employees to perform sLch services. C. The Applicability of the Act Before the Board may proceed to a determination of dispute under Section 10(k) c the Act, it must be satisfied that there is reasonable ause to believe that Section 8(b)(4)(D) has been violated. We are not 2 Franklin Broadcasting, supra, 1215 3 Highway Truckdrivers & Helpers, Local 107, International Brotherhood of satisfied that any such violation has occurred in this case. Here, the evidence is insufficient to establish a traditional jurisdictional dispute between two unions, each of which wishes to have certain duties assigned to its members rather than to the members of its rival union. The employees represented by ILWU Local 26 were terminated during the term of an existing oral contract as a result of U.S. Lines relocating at Berth 230. The evidence bearing upon ILWU Local 26's objections was brought out in the meetings held on May 7 and May 16; i.e., that ILWU Local 26 had a contract with U.S. Lines covering the normal terminal watchman/guard service and that ILWU Local 26 was merely demanding continued employ- ment of those who were working and that the oral agreement applicable to them be given force and effect. No other demands were made and none can be implied. In a somewhat similar case, International Brother- hood of Electrical Workers, Local 292, AFL-CIO (Franklin Broadcasting Company (Radio Station WMIN)), 126 NLRB 1212, the Employer created a dispute with a union by terminating a group of employees, whom the union represented, and as- signed their duties to another group of employees. The Board held that picketing by the union, in order to "obtain reemployment" of the first group of employees and get a collective-bargaining contract for them, involved "objections which the Congress, in enacting Section 8(b)(4)(D), did not intend to proscribe."2 In Safeway Stores, Incorporated,3 the above principle was amplified, wherein the Board noted that, although the dispute "might be deemed to fall within the literal terms of Section 8(b)(4)(D) proscription," that proscription was not designed to authorize the Board to arbitrate disputes between an employer and a union, particularly with regard to the union's "attempt to retrieve the jobs" of employees whom the employer chose to supplant by reallocating their work to others. Upon the basis of the foregoing, we are satisfied, and conclude, that the dispute herein does not fall within the meaning of Section 8(b)(4)(D) and therefore is not a matter to be considered under Section 10(k). Accordingly, we shall quash the notice of hearing. ORDER It is hereby ordered that the notice of hearing issued in this case be, and it hereby is, quashed. CHAIRMAN MILLER, dissenting: I must dissent from my colleagues' conclusion that Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (Safeway Stores, Incorporated), 134 NLRB 1320. ILA, LOCAL 26 577 the dispute herein does not fall within the meaning of Section 8(b)(4)(D) and therefore is not a matter to be considered under Section 10(k) of the Act. As set forth in the majority opinion, the record facts show that from 1971 until May 1, 1973, U.S. Lines operated a container terminal at Berth 246, Pier J. Throughout this time period U.S. Lines contracted with several independent companies, all of whom employed members of ILWU Local 26 either themselves or through subcontractors, to provide guard service at its terminal. When U.S. Lines moved its operations to Berth 230, Pier G, on May 1, it decided to contract the operation of the pier, including the security service work, to Marine Terminals Corporation (MTC). MTC subsequently subcontracted the guard service which is in dispute herein to American Plant Protection (APP), the Charging Party, whose em- ployees are represented by American Federation of Guards Local 1. Thereafter APP began performing the guard duties at the U.S. Lines terminals. On May 6 Joe Ibarra, business agent for Local 26, learned that members of another union were per- forming guard services at the U.S. Lines terminal. He immediately attempted to contact U.S. Lines, but failing to do so caused picket signs reading "U.S. Lines, give us back our jobs, ILWU Local 26," to be set out that day. Shortly thereafter, Local 26 and U.S. Lines agreed to meet and the picket signs were temporarily removed. At the meeting which fol- lowed, Ibarra contended that U.S. Lines had a contract with Local 26 and that U.S. Lines had breached this agreement. U.S. Lines denied that it was employing any guards, urging rather that it had contracted the work to MTC and that it had no control over MTC's contract with the Charging Party. Ibarra rejoined that U.S. Lines could force MTC "to break off with APP and use Local 26's guards." On May 12 Local 26 reestablished its picket. According to Ibarra's testimony, Local 26 hoped that the pickets would bring pressure to bear on U.S. Lines and would force it to get rid of APP through MTC. On May 17 there was another meeting between U.S. Lines and Local 26 at which U.S. Lines agreed to use Local 26 guards at Pier G. Thereafter the Charging Party complied with MTC's request that it remove its guards from Pier G, and MTC has used members of Local 26 to provide guard service at that pier. In my view the foregoing facts establish that a jurisdictional dispute exists between Local 26 and Local 1 over the assignment of the guard service work for U.S. Lines at Pier G. The record shows that Local 26 has claimed the work which Local 1 was performing and which is presently in dispute. The record further shows that Local 26 has engaged in picketing in an attempt to force a reassignment of the work to its members or employees represented by it. As such, Local 26's conduct went beyond the "mere protest" of what Local 26 might have believed amounted to unfair treatment against the former employees of Crescent Wharf and Warehouse Com- pany who lost their jobs at Pier J when U.S. Lines changed piers for its operations. In my opinion, the majority's first mistake in analyzing the facts of this case is to treat the situation as one in which Local 26 is merely asserting an oral contract claim against U.S. Lines and seeking to enforce it in order to preserve work for its members. The record evidence as a whole, in my view, does not furnish sufficient support to sustain their position. U.S. Lines contracted the operation of Berth 246, Pier J, to various contractors who were also responsi- ble for providing security services for that pier. Although on occasion U.S. Lines hired gangway guards for Pier J directly through these contractors, the regular and basic guard services were provided by the latter parties through their employees. The record is barren of any evidence of how often or for what periods of time guards were employed directly by U.S. Lines at Pier J. On the other hand, it is clear that Local 26's dispute with U.S. Lines at Berth 230, Pier G, extended beyond the use of gangway guards and encompassed all of the guards that were to be employed (by another employer) and used on that pier. Furthermore, there is no evidence that Local 26 was claiming the work in dispute for those employees who purportedly had been displaced by U.S. Lines, or for that matter by the use of APP by MTC rather than Crescent, when U.S. Lines moved its operations from Pier J to Pier G. The record fails to show that Local 26 ever made application to U.S. Lines, APP, or MTC, for any vacancies that might have existed for guards at Pier G. Instead, Local 26 immediately commenced picketing activities and thereafter de- manded that U.S. Lines hire its members. While the picket signs were couched in language indicating job retention as an aim of the picketing, Ibarra's repeated demands to U.S. Lines were bluntly expressed in terms of getting rid of APP and its employees and replacing them with guards furnished by Local 26. Nowhere did Ibarra hint that he sought or hoped to gain employment for guards displaced by U.S. Lines' termination of its operations at Pier J. Nor does the record reveal any such firm intent behind his demands. As far as we know, Ibarra and Local 26 were concerned only with obtaining the assignment of the guard work at Pier G for members and employees it represented through whatever 578 DECISIONS OF NATIONAL general sources of hire were available to it, without regard to whether they were former employees at Pier J who had lost their jobs as a result of U.S. Lines shifting operations to Pier G. In my view, Local 26's picketing, therefore, clearly was designed to gain the work being performed by employees of APP. That being the case, I do not understand how my colleagues can conclude that Safeway Stores, Incorpo- rated and Franklin Broadcasting Company,4 are apposite to this case. The facts here, as demonstrated above, simply do not coincide with those appertain- ing to those two cases. More to the point is the line of cases wherein the Board has held that a jurisdictional dispute lies where the union taking self-help action to obtain the work in question is claiming it for its general membership rather than the employees directly affected by a past change in assignment. Accordingly, Local 26's claim for the guard work on LABOR RELATIONS BOARD Pier G goes far beyond the realm of work preserva- tion or contractual enforcement. See, e.g., Lawrence Erie Company, 158 NLRB 1687. Aside from the fact that the record evidence does not appear to support the majority' s position, I find that the fact that Local 26 has couched its claim for the disputed work in terms of a contractual dispute does not preclude a finding that a jurisdictional dispute exists. Assuming some validity to Local 26's claim that in the past it had had a contract with U.S. Lines concerning the type of work in dispute herein, Local 26's contention that the real issue is whether U.S. Lines violated the subcontracting provisions of said purported contract is not dispositive of the issue under our case law. Thus, the Board has rejected such arguments where, as here, a concurrent or ultimate objective of the union in attempting to force changes in the employer's subcontracting practices is ILA, LOCAL 26 579 to force or require a reassignment of the disputed work to the employees represented by it.s In short, by establishing a picket line designed to alter the existing assignment of the disputed work , Local 26 implicitly claimed the work in dispute as its own, and presented a jurisdictional claim cognizable under Section 8(b)(4)(D) of the Act. The fact that there are two employers , U.S. Lines and American Plant Protection, is immaterial to the issue of whether a jurisdictional dispute exists. The Board has long held that jurisdictional disputes are not limited to competing groups of employees working for the same employer , but also extend to attempts to force the assignment of work from employees of one employer to employees of another.6 It is also immaterial that the employees represented by Local 1 who were performing the work in dispute do not now actively seek to perform the disputed work at the U.S. Lines terminal, since the controlling factor is that they expect to perform the work at Pier G, and would have but for their removal from the job by their employer, APP, who was forced off the job by U.S. Lines and MTC's acquiescence to Local 26's demands and unlawful pressure to achieve same.7 There is no evidence of any disclaimer of the work involved either by Local 1 or the employees whom they represent who held jobs with APP at Pier G. Nor is there any evidence to indicate that should the work be assigned to such employees, that they would refuse to accept and perform it. In light of the foregoing, the facts disclose that U.S. Lines was presented with dual claims over the disputed work after the assignment thereof to APP and its employees, and that Local 26 attempted tc regain it by use of conduct proscribed by Section 8(b)(4)(D). Thus, contrary to the majority, the dispute herein is not between U.S. Lines and Local 26, nor was the dispute created by U.S. Lines assigning the work away from that local. Rather the evidence clearly establishes that the dispute herein is between Local 26 and Local I and the employees it represents, over which group of employees is entitled to perform the guard service work at Pier G.8 Accordingly, I would find that a jurisdictional dispute exists and would determine the merits of the dispute.9 8 Local Union 354, International Brotherhood of Electrical Workers, AFL-CIO (F G Johnson Company, Incorporated), 200 NLRB No. 92; United Brotherhood of Carpenters and Joiners of America, Local 753, AFL-CIO (Blount Bros Corporation), 175 NLRB 496, 497, and cases cited in In. 3 therein , Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Company), 145 NLRB 1580, 1589, Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Company, Inc), 141 NLRB 888, cases cited in In. 6 therein. 6 Local 3, International Brotherhood of Electrical Workers (Western Electric Company, Inc.), supra, Sheet Metal Workers International Associa- , Lion, Local Union 28, AFL-CIO (Diesel Construction), 196 NLRB 1065; International Brotherhood of Electrical Workers, AFL-CIO, Local 145 (Camache Machine Tool Co.), 188 NLRB 255; Local 804, Delivery and Warehouse Employees, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Gimbel Brothers, Inc.), 168 NLRB 214; Local 19, International Longshoremen 's Association, AFL-CIO (Marine Association of Chicago), 151 NLRB 89; Plumbers & Fitters Local 761 of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (Matt J Zaieh Construction Company), 144 NLRB 133; International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Treasurers and Ticket Sellers Local No 862 (Allied Maintenance Company of Pennsylvania, Inc), 137 NLRB 738, Local No. 48, Sheet Metal Workers International Association, AFL-CIO (Gadsden Heating and Sheet Metal Company), 119 NLRB 287; N.LR B v Local 825, International Union of Operating Engineers, AFL-CIO (Burns and Roe, Inc), 410 F.2d 5 (C.A. 3, 1969). 7 Sheet Metal Workers, Local 28 (Diesel Construction Co ), supra 9 See the view expressed by the dissent in Waterway Terminals Company, 185 NLRB 186, which was upheld by the court of appeals in its remand of that case to the Board . Waterway Terminals Co v. N L.R B, 467 F 2d 1011 (C.A. 9, 1972). The Board subsequently found , in accordance with the court's view, that even the facts in Waterway presented a jurisdictional dispute cognizable under the Act. 203 NLRB No. 126 9 The Charging Party contends that an assignment of work to employees represented by Local 26 would violate the policy of Sec . 9(b)(3) of the Act because the Board in effect would be granting certification to a union whose membership is not restricted to guards . This contention relates to the merits of the dispute, that is, whether Local 26 can be awarded the work, rather than whether its conduct constituted reasonable cause to believe that Sec. 8(bX4XD) has been violated. Although the majority's quashing of the 10(k) notice herein removes for them the necessity of meeting this contention, I feel compelled, in view of my contrary position, that a jurisdictional dispute exists , to briefly note that I am not in agreement with the Charging Party as to the impact of Sec. 9(bX3) in proceedings of this type Notwithstanding that a union that admits nonguard employees to membership cannot be certified under that section of the Act, that does not preclude a union whose membership is so mixed from representing guards (without the sanction of Sec. 8(ax5), nor does it remove the protection of the Act from employees who are represented by such a union . White Superior Division, White Motor Corporation, 162 NLRB 1496, 1499 ; and William J Burns International Detective Agency, Inc., 134 NLRB 451 In my view, the portion of Sec. 8(b)(4XD) which establishes Board certification as a defense to a charge brought thereunder has no bearing on the issue of which group of employees should be assigned the work in dispute The assignment is made to the employees, not to the union that represents them nor its members and, therefore, the composition of the union's membership is immaterial in determining such assignment. That factor has relevancy only in that the union representing guards and nonguards alike could not urge certification as a defense where guards are the employees involved in the dispute . Accordingly, were I to make an award of the disputed work herein , Local 26's mixed membership status would be no deterrent to me in determining the dispute in favor of employees represented by it were I so disposed to find (this is not to be taken as an indication that I would so find nor should the converse conclusion be presumed)