Boilermakers, Local 6

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, Local Lodge No 6, Bay Cities Metal Trades and Indus- trial Union Council and Pacific Far East Lines, Inc and International Longshoremen's and Warehousemen's Union, Local No 10 Case 20- CD-473 May 28, 1976 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, based on a charge filed by Pacific Far East Lines, Inc, herein called Employer The charge alleges that Internation- al Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local Lodge No 6, herein called the Boilermakers, and Bay Cities Metal Trades and Industrial Union Council, herein called Council, violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity in order to force the Employer to assign certain work to individ- uals represented by the Boilermakers rather than to employees of the Employer represented by Interna- tional Longshoremen's and Warehousemen's Union, Local No 10, herein called the Longshoremen A duly scheduled hearing was held on October 16, 17, and 23, 1975, before Hearing Officer Miguel A Gonzales All parties appeared at the hearing and were afforded full opportunity to be heard, to exam- ine and cross-examine witnesses, and to adduce evi- dence bearing on the issue Thereafter, all parties filed briefs Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error They are hereby affirmed I 1 In their brief to the Board, the Boilermakers and Council moved to correct the transcript The motion is hereby granted The Boilermakers and Council except to the Hearing Officers granting of the Employers petition to revoke the subpoena duces tecum relating to Vice President Velson's employment application with the Employer The applica tion was sought for the purpose of establishing that the assignment of the disputed work to the longshoremen was motivated by a bias on the part of Velson, a former longshoreman The Boilermakers and Council hoped to show that Velson listed the president of the Longshoremen s International as a reference on his job application From this they would infer that the assignment of the work to the employees represented by the Longshoremen was prompted by Velson s ties with the Longshoremen We find such an I BUSINESS OF THE EMPLOYER The Employer is a corporation engaged in the wa- ter transportation of freight between the United States and foreign ports During the preceding 12- month period, the Employer has shipped products valued in excess of $50,000 from San Francisco, Cali- fornia, to points and ports in countries other than the United States, and has received in excess of $50,000 from its customers for shipping such products direct- ly outside of the United States We find, as the par- ties have stipulated, that the Employer is an employ- er within the meaning of Section 2(2) of the Act We further find that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein II LABOR ORGANIZATIONS The parties stipulated, and we find, that the Boiler- makers, Council, and the Longshoremen are labor organizations within the meaning of Section 2 (5) of the Act III THE ALLEGED DISPUTE A The Work in Dispute The work which gave rise to this proceeding in- volves the maintenance and repair of the Employer's barges and containers located at its maintenance yard, Pier 96, San Francisco , California B Background and Facts Prior to August 11, 1975, maintenance and repair work on the Employer's barges and containers was subcontracted out to various companies, including Franklin Machine Works, Inc The Employer and Franklin Machine conducted their business pursuant to an oral contract Franklin Machine's employees are represented by the Boilermakers However, the Employer has never had a contractual relationship with either the Boilermakers or Council In 1974 new management took control of the Em- ployer In order to cut costs and reduce the Company's $19 million debt, the Employer decided to reduce gradually the amount of work being sub- inference to be too speculative since there is no relationship between Velson s application and the decision as to which employees to assign the work Moreover evidence of Velson's membership and previous employ ment with the Longshoremen is present in the record so that the revocation of the subpoena relating to the employment application did not prejudice the Boilermakers or Council Accordingly we hereby affirm the Hearing Officers granting of the motion to revoke the subpoena duces tecum in part 224 NLRB No 33 BOILERMAKERS, LOCAL 6 223 contracted out and begin to do more of this work with its own "in-house" employees Pursuant to this policy, on August 11, 1975, the Employer hired indi- viduals represented by the Longshoremen as its own employees to perform the same maintenance and re- pair work at Pier 96 that had previously been done by employees of Franklin Machine represented by the Boilermakers On the first day that the longshore- men were on the job, Franklin Machine's foreman was told by the Employer to give the longshoremen a welding test and to lay off 10 boilermakers The fore- man refused to administer the welding test, but did lay off 10 boilermakers On August 12, 1975, a meeting was held between the Employer and the Boilermakers Present for the Employer were John Alioto, president, Charles Vel- son, vice president, and Francis Bradford, vice presi- dent of marine operations G P Campbell, business manager, and his assistant, Al Johnson, were present for the Boilermakers At the meeting, Alioto ex- plained that in accordance with the Employer's in- tention to eliminate all subcontractors eventually, it planned to perform the maintenance and repair work with its own "in-house" employees who were repre- sented by the Longshoremen Campbell stated that he was not concerned with whether the Employer continued its subcontractual relationship with Franklin Machine or did the work with its own "in- house" employees, but he wanted to ensure that boil- ermakers did the work Campbell demanded that the work be assigned to boilermakers, and refused to ac- cept a proposed arrangement whereby both Franklin Machine's boilermakers and the Employer's long- shoremen would work together The following day, August 13, 14 of Franklin Machine's employees, along with Campbell and 2 of his assistants, picketed the Employer's facility for ap- proximately 2 hours The pickets carried signs stat- ing BOILERMAKERS WORK NOW BEING DONE FOR PFE LINES IS AT WAGES-HOURS AND WORKING CONDI TIONS BELOW THOSE PREVAILING FOR BOILERMAKERS IN THE AREA BAY CITIES METAL TRADES COUNCIL The only people who crossed the picket line were the Employer's longshoremen who were doing the main- tenance and repair work When the picketing termi- nated, Franklin Machine's boilermakers resumed work Since August 13, 1975, both Franklin Machine's boilermakers and the Employer's longshoremen have continued to do the disputed work side by side not a jurisdictional dispute because the object of the picketing was work preservation for the boilermakers who had been doing the disputed work Additionally, Council asserts that there is a lack of evidence con- cerning its involvement in the dispute 2 Alternatively, both the Boilermakers and Council contend that if a jurisdictional dispute is found to exist, the work should be awarded to the employees represented by the Boilermakers The Employer and the Longshoremen both con- tend that a jurisdictional dispute exists and request that the work be awarded to the employees repre- sented by the Longshoremen D Applicability of the Act Before the Board may proceed to a determination of dispute under 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 the voluntary adjust- ment of the dispute We are satisfied that such reasonable cause to be- lieve that a violation has occurred is present in this case The record establishes that following the Employer's engagement of employees represented by the Longshoremen, Business Manager Campbell communicated the Boilermakers intent to take action against the Employer if it did not cease using long- shoremen in performing the disputed work In ex- changes between Campbell and the Employer, Campbell claimed the work as boilermakers' work, in general, demanded the Employer's continued use of boilermakers for the work, and rejected a compro- mise whereby both boilermakers and longshoremen would perform the work On August 13, 17 persons affiliated with the Boilermakers picketed the worksite with signs indicating an area standards object Only the Employer's employees represented by the Long- shoremen crossed the picket line and continued to perform the disputed work during the brief picketing Subsequently, the Boilermakers asserted that it had a work preservation object in picketing the Em- ployer However, Campbell's comments to the Em- ployer, and the absence of any indication of a work preservation object on the picket signs, belie any claim that the Boilermakers object was solely for the boilermakers who had picketed work as employees of Franklin Machine Rather, these actions show that at least an object was to force the Employer to replace C Contentions of the Parties The Boilermakers and Council contend that this is 2 In its brief Council made a motion to quash the notice of hearing with regard to it In view of the inclusion of Council s name on the picket signs and the participation of Campbell Council s vice president in the picketing we find that Council is properly a party in this proceeding Accordingly we deny Councils motion to quash the notice of hearing with regard to it 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its employees represented by the Longshoremen with employees referred and represented by the Boiler- makers 3 During the course of the picketing, employees rep- resented by the Longshoremen continued to perform the disputed work, and at the hearing herein the Longshoremen sought the assignment of the work to the employees it represents Since the Employer's ini- tial utilization of longshoremen, the Boilermakers has continued to assert vigorously its claim to the disputed work Thus, it is clear that two rival groups of employees are competing for the assignment of the disputed maintenance and repair work and that one group picketed the Employer resulting in a disrup- tion of work Based on the foregoing, and the record as a whole, we find there is reasonable cause to believe that a violation of Section 8(b)(4)(D) of the Act has oc- curred Since the parties have not agreed upon a vol- untary method of settling this jurisdictional dispute, the dispute is properly before the Board for determi- nation under Section 10(k) of the Act E Merits of the Dispute Section 10(k) of the Act requires that the Board make an affirmative award of the disputed work af- ter giving due consideration to various relevant fac- tors 4 As the Board has stated, the determination in a jurisdictional dispute case is an act of judgment based on commonsense and experience in weighing these factors The following factors are relevant in making a determination of the dispute before us 1 Board certifications Neither the Boilermakers nor the Longshoremen has been certified by the Board as collective-bargain- ing representative of the Employer's employees Accordingly, this factor does not favor an award to either group of competing employees 2 Collective-bargaining agreements The Employer does not have a contract with either Franklin Machine or with the Boilermakers The Employer is, however, a member of the Pacific Mari- time Association (PMA) which has a collective- bargaining agreement with the International Longshoremen's and Warehousemen's Union (ILWU) The scope of that agreement, however, is limited to the movement of cargo on and off PMA members' vessels and, therefore, is not applicable to the disputed maintenance and repair work herein Accordingly, this factor does not favor an award to either group of competing employees 3 Skills and training The work herein is largely unskilled in nature, ne- cessitating only minimal on-the-job training It pri- marily involves the burning, cutting, welding, bend- ing, and hammering of steel These operations require work with the hands and the ability to use power drills, sledge hammers, heating torches, and other welding equipment Although the disputed work entails some welding, the employees are not re- quired to be certified as welders Work involving the hydraulic system requires a generalized background in auto mechanics obtained through any basic course covering mechanics The Employer testified that em- ployees represented by each of the Unions possess the requisite skills to perform the work and, in fact, in the past have performed the disputed work to the Employer's satisfaction Thus, this factor does not favor an award to either group of competing employ- ees 4 Area and industry practice The record establishes that there is no clear-cut area or industry practice of assigning the disputed work to employees represented by any particular union Testimony shows that Seatrain in Oakland uses longshoremen, V C Container and Sealand in Oakland use machinists, and the American President Lines, which shared Pier 96 with the Employer in 1974, used carpenters then and currently uses long- shoremen at its Oakland location to do similar work Moreover, the Employer's employees represented by Seafarers' International Union (SIU) and Marine, Firemen's, Oilers and Wipers' Union (MFOW), both in the past and present, have performed work very similar to that in dispute It thus is clear that the maintenance and repair work on barges and contain- er vessels is a relatively new practice within the in- dustry and that no clear-cut work assignment prac- tices have been established Accordingly, this factor does not favor an award to either group of competing employees 3 See, e g, International Longshoremen s Association, Great Lakes District AFL-CIO, et al (Lawrence Erie Company), 158 NLRB 1687, 1690 (1966) ' N L R B v Radio & Television Broadcast Engineers Union Local 1212 International Brotherhood of Electrical Workers AFL-CIO [Columbia Broad- casting System], 364 U S 573 (1961) 5 Employer's past practice Before the Employer assigned the disputed work to its own employees represented by the Longshoremen, BOILERMAKERS, LOCAL 6 225 the Employer has subcontracted the work to Frank- lin Machine, whose employees are represented by the Boilermakers Prior to that, the Employer had used other subcontractors as well as its own employees represented by SIU Since the Employer's past prac- tices do not establish a pattern of assigning the dis- puted work to employees represented by any particu- lar union, this factor does not favor an award to either group of competing employees 6 Efficiency and economy The record discloses that by using its own employ- ees represented by the Longshoremen instead of sub- contracting the disputed work to employees repre- sented by the Boilermakers, the Employer is able to reduce its costs by eliminating the subcontractor's profit factor By using its own longshoremen employ- ees, the Employer also reduces its overhead, elimi- nates the duplication of management personnel, and saves on other general and administrative expenses Further, the Employer has greater control over the work relationship as to hours worked, orders, and supervision Additionally, the use of its own employ- ees represented by the Longshoremen gives the Em- ployer greater flexibility in conducting its operations by permitting it to streamline activities in slack peri- ods and increase operations at peak times These ad- vantages and similar increased efficiencies prompted the Employer's recent policy decision to eliminate all subcontractors, resulting in the assignment of the dis- puted work to its employees represented by the Longshoremen Thus, efficiency and economy of op- erations favor an award of the work to employees represented by the Longshoremen 7 Employer preference The Employer's assignment of the disputed work to the employees represented by the Longshoremen instigated the instant jurisdictional dispute In accor- dance with its policy to eliminate all subcontractors and, eventually, to perform all of its work with its own in-house employees, the Employer assigned the disputed work to employees represented by the Longshoremen Further, the Employer, while not contractually obligated to do so, has applied the terms and conditions of the PMA-ILWU contract to these employees, thereby demonstrating its prefer- ence to have a uniform labor relations policy throughout its operations During the proceedings herein, the Employer has vigorously sought the as- signment of the work to its employees represented by the Longshoremen so as to effectuate its overall oper- ational plan of performing all work by its own em- ployees in order to improve the financial condition of the Company Accordingly, this factor supports an award of the work to its employees represented by the Longshoremen Conclusions Upon the record as a whole, and after full consid- eration of all relevant factors involved, we conclude that the employees of the Employer represented by the Longshoremen are entitled to perform the disput- ed work In reaching this conclusion, we have relied upon the Employer's assignment of the disputed work to its longshoreman employees and the in- creased efficiency and economy and operations re- sulting from such assignment The fact that members of both Unions possess the necessary skills and train- ing to perform the work is determinative only to the extent it establishes that the Longshoremen members have the ability to perform the work satisfactorily We shall, accordingly, determine the existing juris- dictional dispute by deciding that employees repre- sented by the Longshoremen, rather than those rep- resented by the Boilermakers, are entitled to the work in dispute In making this determination, we are assigning the disputed work to the employees of the Employer who are represented by the Longshore- men, but not to that Union or its members DETERMINATION OF DISPUTE Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this pro- ceeding, the National Labor Relations Board makes the following Determination of Dispute I Employees of Pacific Far East Lines, Inc, rep- resented by International Longshoremen's and Warehousemen's Union, Local No 10, exclusively, are entitled to perform the maintenance and repair work of Pacific Far East Lines, Inc, barges and con- tainers located at its maintenance yard, Pier 96, San Francisco, California 2 International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local No 6, and Bay Cities Metal Trades and Indus- trial Union Council are not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require the assignment of the above work, or any part thereof, to its members or to employees it repre- sents 3 Within 10 days from the date of this Decision and Determination of Dispute International Brother- hood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, Local Lodge No 6, and 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bay Cities Metal Trades and Industrial Union Coun- or requiring, by means proscribed by Section cil shall notify the Regional Director for Region 20, 8(b)(4)(D) of the Act, the assignment of the disputed in writing, whether or not it will refrain from forcing work in a manner inconsistent with this Decision and Determination of Dispute