Longshoremen Locals 8 and 40 (Port of Porland)

I.L.W.U., LOCALS 8 AND 40 International Longshoremen's and Warehousemen's Union, Local 8 and International Longshoremen's and Warehousemen's Union Local 40 and Port of Portland and Port Services Company and Automo- tive Employees Council of Portland and Vicinity.' Case 36-CD- 150 November 15, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by the Port of Portland, herein called the Port, alleging that International Long- shoremen's and Warehousemen's Union Locals 8 and 40, herein called Respondents or Locals 8 and 40, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring Port Services Company, herein called Employer or PSC, to assign certain work to their members rather than to employees represented by Automotive Employees Council of Portland and Vicinity, herein called Council. Pursuant to notice, a hearing was held before Hearing Officer Dale B. Cubbison on July 13, 14, and 15, 1977. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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: I. THE BUSINESS OF THE EMPLOYER The Employer, a corporation with its principal place of business in Portland, Oregon, provides predelivery service for imported automobiles. During the past year it performed services valued in excess of $500,000 for its customers American Honda, General Motors Opel, and BMW. At its Portland facility, the Employer handled approximately 100,000 vehicles, 80 percent of which are shipped outside the State of Oregon. Accordingly, we find that the Employer is tAutomotive Emplo.iees Council of Portland and Vicinity was substitut- ed as the proper party at the heanng after the unfair labor practice charge 233 NLRB No. 63 engaged in commerce within the meaning of Section 2(b) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein. II1. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated and we find that Internation- al Longshoremen's and Warehousemen's Union Local 8 and International Longshoremen's and Warehousemen's Union Local 40 are labor organiza- tions within the meaning of Section 2(5) of the Act. The record shows that Automotive Employees Council of Portland and Vicinity is the certified bargaining representative of the employees of the Employer, that employees participate in it, and that it is party to a collective-bargaining agreement with the Employer covering wages, hours, and conditions of employment, pursuant to which Council has processed grievances on behalf of the Employer's employees. Accordingly, we find that Automotive Employees Council of Portland and Vicinity is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts of the Dispute Port of Portland, a municipal corporation with the responsibility for the development and operation of public dock facilities in the Portland, Oregon, metropolitan area, presently operates a facility at its Terminal 4, through which imported automobiles are unloaded and stored pending shipment. The Port employs members of Locals 8 and 40 with which it has a collective-bargaining agreement. Since 1970 PSC has maintained a servicing plant on private land adjacent to Terminal 4. Before 1970, the PSC operations were located on Port property, first at Terminal 2 and then at Terminal 4. PSC's employees are represented by Council, with which it has a collective-bargaining agreement. PSC has no agreement with either Local 8 or Local 40 and does not employ any of their members. As stated above, PSC performs predelivery services on imported automobiles. These automobiles are unloaded from ships by Port employees, who are members of Local 8, and driven to an auto storage lot within Terminal 4. Once parked, a tally of the cars is taken on behalf of the Port by a member of Local 8 to ascertain the accuracy of the bills of lading. If all is in order the Port signs off to the shipper or shipping line. The cars are next surveyed for marine damage by PSC employees who remove damaged cars to the PSC processing plant for repair. erroneously alleged that Joint Council of Teamsters was the competing union. 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD PSC employees next mark each car with an identifi- cation number used to locate it for eventual processing and shipment. When PSC receives an order for a specific car, it is located by a PSC employee who affixes a price information sticker to the window and raises the hood. The car is then removed by PSC employees to the PSC processing plant where it is cleaned, de-cosmolined, undercoat- ed, and equipped with accessories. Once processed, the cars are loaded on trucks or railroad cars for shipment to distributors. General Motors Opels are loaded on railroad cars without processing. PSC signs off to the Port each day at noon and 5 p.m. for cars removed. The work performed by PSC employees at Termi- nal 4 was the subject of a jurisdictional dispute in 1970 between Local 8, PSC, Council, and the Port's predecessor, the Commission of Public Docks.2 In that proceeding, the Board awarded to PSC employ- ees, represented by Council, the following work: [S]ervicing new imported automobiles, including the cleaning and de-cosmolining, undercoating, installing certain accessories, painting, doing body repair work, and moving such automobiles in and around the Portland Public Docks once they have come into the possession of the consignee and the Employer. The present dispute arises from the Port's inten- tion, informally announced in July 1976, to construct a larger automobile import facility. It is presently under construction at Port Terminal 6 and, when completed, PSC intends to transfer operations to a new processing plant it will lease from the Port within the Terminal 6 area. Upon moving, PSC intends to assign its employees the same work they are currently performing at Terminal 4. Subsequent to the announcement, Port officials and Respondents held a series of meetings to discuss work jurisdiction at the proposed facility.3 William E. Plymale, director for marine development for the Port, testified that at a meeting on April 7, 1977, officials of Respondents demanded the work of moving automobiles within and from the Terminal 6 auto storage lot to the PSC processing facility, as well as the work of loading unprocessed autos on to railroad cars. According to Plymale, Dick Wise, a Local 8 official, stated that the ILWU would run automobiles out of the Port if they were not assigned the claimed work and Don Ronne, secretary of Local 8, stated that the Port would be faced with a "situation similar to 1970."4 Plymale also asserted 2 International Longshoremen's and Warehousemen's Union Local 8 (Port Services Compan,.), 185 NL.RB 658 (1970). 3 Terminal 6 is presently manned exclusively by ILWU labor. In support of its claim for the work at Terminal 4 in 1970, Local 8 engaged in picketing. that union officials had made similar statements at meetings in October and December 1976 and May 1977. Both Ronne and Larry Clarke, secretary- treasurer of Local 40, denied that any threats were made. On or about June 1, 1977, the Respondents, to settle the dispute, proposed to a subcommittee of the Commissioners of the Port that ILWU members unload the automobiles and drive them to the proposed auto storage lot at Terminal 6; mark for identification, locate, and perform all clerical func- tions in delivering the automobiles from the dock area to the PSC processing plants; drive autos from the auto storage lot to a "staging area" outside the proposed PSC facility; load all unprocessed cars onto railroad cars; and, finally, drive all cars from the proposed PSC processing plant back to the auto storage lot. Plymale also testified that since early June 1977, Locals 8 and 40 have engaged in a work slowdown both at Terminal 4 and Terminal 6; and production records show a decrease in production at Terminal 6. Ronne, secretary of Local 8, admitted that work may have fallen off slightly but claimed this was due to strict adherence to safety regulations as a result of, among other factors, the Port's increasing the speed limits at Terminals 4 and 6. B. The Work in Dispute The work in dispute involves the predelivery servicing of imported automobiles by PSC at Port of Portland's proposed automobile import facility at Terminal 6, Portland, Oregon. It includes surveying for marine damage, marking for identification, and affixing price stickers to imported automobiles once they have been unloaded and stored at Terminal 6. It also includes locating and driving those automobiles to the proposed PSC facility for processing as well driving elsewhere in and about the Terminal 6 area, and loading unprocessed automobiles for shipment.5 C. Contentions of the Parties The Port, PSC, and Council contend that Respon- dents violated Section 8(b)(4)(D) when in further- ance of their demand for the disputed work they both threatened to picket and engaged in a work slow- down. They also maintain that the work should be awarded to PSC employees represented by Council on the basis of the Board's prior award involving Terminal 4, as well as on the bases of skill, area and industry practice, and efficiency. In addition, Coun- 5 There is no evidence that Respondents specifically claimed the actual processing of the automobiles or the loading of processed automobiles for shipment. 460 I.L.W.U., LOCALS 8 AND 40 cil relies on its certification as bargaining representa- tive for PSC's employees and claims its collective- bargaining agreement with PSC covers the disputed work. Respondents contend that no jurisdictional dispute exists involving PSC since they have made no demand on PSC to assign the work and have only sought to enforce their own collective-bargaining agreement with the Port. Respondents argue that the proposed lease of Port property at Terminal 6 to PSC violates that agreement. Respondents also contend that since the work is only prospective there is no existing dispute cognizable under Section 10(k) of the Act. D. Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated and that the parties have not agreed upon a method for voluntary adjustment of the dispute. It is clear that Locals 8 and 40 demanded that their members perform certain work presently performed by PSC employees at Terminal 4, when it is transferred to Terminal 6. Also, Port officials testified that officials of Locals 8 and 40 threatened to picket and "shut down the Port" if their demands were not met. Furthermore, records show that production by longshoremen at Terminal 6 has decreased. Don Ronne, secretary of Local 8, admit- ted that work may have fallen off, but gave adherence to safety regulations by ILWU members as the sole reason therefor. Although Respondents disclaim any threats and slowdown to force assign- ment of the disputed work, we find that there is reasonable cause to believe Section 8(b)(4)(D) has been violated. We reject Respondents' contention that the pro- spective nature of the work negates the existence of a jurisdictional dispute. Construction of the new auto facility is underway and PSC indicates it will continue to assign to its employees there the work they presently perform at Terminal 4.6 We also reject Respondents' argument that since they are merely seeking to enforce their own collective-bargaining agreement with the Port and have made no demand 6 Local 2, International Union of Operating Engineers, AFL-CIO (PVO International, Inc.), 209 NLRB 673 (1974); tnternarional Photographers Local 659, affiliated with International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada (King Broadcasting Compan,). 216 NL.RB 860 (1975). 7 International Brotherhood of Electrical Workers. AFL-CIO, Local No. 145 (Camanche Machine Tool Co., Inc.), 188 NLRB 255 (1971), Local Union No. 3, International Brotherhood of Electrical Workers. A.FL CIO (Western Electric Company, Incorporated). 141 NL RB 888 (1963). " United Brotherhood of Carpenters and Joiners of America. Local No. 753. on PSC, their conduct falls outside the scope of Section 8(b)(4)(D). The Board has long held that a dispute cognizable under Section 8(b)(4)(D) may exist even though no demand has been addressed to the employer whose employees are performing the work.7 It is clear that Respondents have demanded work which can only be assigned to employees they represent at the expense of PSC employees. Having sought the assignment of work from one group of employees to another, the fact that Respondents purport to rest their claim on their agreement with the Port does not detract from the jurisdictional nature of the dispute.8 There is no evidence that the parties have agreed upon a method for voluntary adjustment of the dispute. E. Merits of the Dispute I. Certification and collective-bargaining agreements Council is the certified bargaining representative for employees of PSC and its collective-bargaining agreement with PSC covers all work performed by PSC in the Portland area, and includes job descrip- tions for shagger (auto driver) and railcar loader. PSC is not a party to any agreement with Local 8 or Local 40. There is a collective-bargaining agreement between Respondents and the Port and Respondents claim the disputed work under provisions of this agreement which grant Respondents jurisdiction over the movement and sorting of cargo on the dock while it is under the control of the Port. Since the PSC facility at Terminal 6 will be located on Port property, Respondents argue that the Port's control ceases only after PSC "signs off' for the automo- biles.9 In support of their position, Respondents cite a recent arbitration award involving the work performed at Terminal 4 which finds that the "spotting, marking, tallying and movement of auto- mobiles" on Port-owned or -leased property violates Respondents' contract with the Port when performed by persons other than Respondents' members. Since Council's contract with PSC and Respon- dents' contract with the Port both cover the disputed work, we find this factor favors neither party. AFL CIO (Blount Bros. Corporation), 175 NLRB 496 (1969). International Union of Operating Engineers, Local 520, AFL-CIO (Home Building Contractors. Inc.). 168 NLRB 256 ( 1967). Also see Brotherhood of Teamsters & Auto Truck Drivers Local No. 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Pacific Maritime Association), 224 NLRB 801 (1976). 9 In the earlier determination, the Board found that on completion of the tally taken on behalf of the Port. the consignee bailed the cars to PSC. Respondents produced no evidence that the procedure had changed. 461 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Previous awards As stated above there is a previous 10(k) award covering the work presently performed by PSC employees, at Terminal 4, which expressly includes the movement of automobiles in and around the Public Docks once they have come into possession of PSC. Respondents attempt to distinguish that award from the present dispute on the grounds that PSC does not gain "possession" of the automobiles until it signs off to the Port and, unlike the operation at Terminal 4 involved in the earlier award, the proposed PSC facility will be located within the confines of Terminal 6. Both contentions lack merit. The record clearly shows that the unloading, storage, processing, and loading of automobiles will be conducted at Termi- nal 6 in the same manner as it is conducted at Terminal 4. Further, PSC assumes responsibility for damage to the automobiles occurring after its marine survey is conducted. Thus, the only difference between the work at Terminal 4 and that which will be performed at Terminal 6 is its location. Nor is the effect of the earlier determination altered by the fact that PSC's Terminal 6 facility will be located on Port property, as Respondents argue, since the Board expressly found that PSC occupied a facility on Port property at Terminal 4 during the 1970 dispute. We therefore find that our earlier award of the disputed work at Terminal 4 favors an award of the same work to Council-represented employees of PSC at Terminal 6. 3. Company and industry practice PSC has always assigned the disputed work to its employees, not only at its Portland facility, but at similar facilities it operates at Takoma, Washington; Chicago, Illinois; and Houston, Texas. Likewise, Columbia Warehouse Company, a competitor of PSC in Portland, assigns similar work to its employ- ees who are teamsters. Finally, there is no evidence to show that the longshoremen have traditionally performed such work on the West Coast. We therefore find that this factor favors assignment of the disputed work to the employees of PSC, repre- sented by Council. 4. Relative skills, economy, and efficiency of operation Respondents introduced no evidence that their members possess any particular skills which would justify their being assigned the work rather than the employees of PSC who have traditionally performed it. Conversely, Al Herman, president of PSC, testified that it took about a month to become proficient in locating automobiles within the storage area, and that loading of automobiles on railcars requires the use of sophisticated equipment and 3 months of training. Since Respondents do not claim all the work PSC will perform at Terminal 6, assignment of the disputed work to employees they represent will interfere with the integrated sequence of operations which can be most efficiently performed by a single group of employees. It would also require duplica- tion of work since ILWU members would drive cars to a staging area adjacent to the PSC facility whence PSC employees would drive the cars into the PSC facility for processing. Accordingly, we find this factor favors assignment of the disputed work to the employees of PSC, represented by Council. Conclusion Upon the record as a whole, and after full consideration of all relevant factors, we conclude that the employees of Port Services Company who are represented by Automotive Employees Council of Portland and Vicinity are entitled to perform the work in dispute. We reach this conclusion relying on the factors of skill, efficiency of operation, area and industry practice, and a prior Board determination involving the same work at Port of Portland Terminal 4. In making this determination, we are awarding the work in question to employees who are represented by Automotive Employees Council of Portland and Vicinity but not to that particular organization or its members. This determination is limited to the particular controversy which gave rise to the proceeding. 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 makes the following Determination of Dispute: 1. Employees of Port Services Company, who are represented by Automotive Employees Council of Portland and Vicinity, are entitled to perform the disputed work of surveying for marine damage, marking for identification, locating, and affixing price stickers to imported automobiles which have been unloaded and stored in the Port of Portland's Terminal 6. Such employees are further entitled to the disputed work of driving such cars to the Port Services Company processing facility as well as in and about the Terminal 6 area, and the loading of unprocessed automobiles for shipment. 462 I.L.W.U., LOCALS 8 AND 40 2. International Longshoremen's and Warehouse- men's Union, Local 8, and International Longshore- men's and Warehousemen's Union Local 40 are not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Port Services Company to assign the disputed work to employees represented by those labor organizations. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Long- shoremen's and Warehousemen's Union, Local 8, and International Longshoremen's and Warehouse- men's Union Local 40 shall notify the Regional Director for Region 19, in writing, whether or not it will refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner inconsistent with the above determination. 463