Intl. Longshoremen's and Warehousemen's Union, Local 29

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union, Local No. 29 and Van Camp Sea Food Com- pany, Division of Ralston Purina Company. Case 21-CD-404 July 6, 1976 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, PENELLO, AND WALTHER This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, fol- lowing a charge filed April 6, 1976, by the Employer, Van Camp Sea Food Company, Division of Ralston Purina Company, alleging that Respondent Local No. 29, International Longshoremen's and Ware- housemen's Union (hereinafter Longshoremen or Lo- cal 29), had violated Section 8(b)(4)(D) of the Act. A hearing was held on April 30, 1976, in San Diego, California, before Hearing Officer Andrew J. Stites. Both parties appeared at the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and Longshoremen 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board makes the following rulings: 1. THE BUSINESS OF THE EMPLOYER As the parties have stipulated, Van Camp Sea Food Company, a Division of Ralston Purina Com- pany, a Missouri corporation I with facilities located at San Diego, California, is engaged in the business of processing and canning tuna. During the course and conduct of its business operations during the past 12 months, the Employer purchased and re- ceived goods and products valued in excess of $50,000 directly from suppliers located outside the State of California, and during the same period sold and shipped goods and products valued in excess of $50,000 directly to customers located outside the State of California. Therefore, we find that Van 1 Van Camp Sea Food Division , Ralston Purina Company, 172 NLRB 1469 (1968) Camp is an employer within the meaning of Section 2(2) and is engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. Furthermore, we find that it will effectuate the purposes of the Act to assert juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED International Longshoremen's and Warehouse- men's Union and its Local 29 are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. The Work in Dispute The work in dispute is the unloading of fish from fishing vessels, including both bait boats and purse seiners, at the Employer's cannery located adjacent to the Tenth Street Terminal in San Diego, Califor- ma. _ B. Background and Facts of the Dispute The Employer operates tuna canneries at Terminal Island (San Pedro, California) and Puerto Rico. At the time of the hearing in this case on April 30, 1976, an additional cannery at San Diego was under con- struction. However, freezer space for receiving and thawing of fish has been ready since March 1. As part of its operations, the Employer unloads fish from fishing vessels and carriers. Carriers, which are used to transport fish from a harbor without any can- nery to a harbor with a cannery, are considerably larger than most fishing vessels. Fish are not caught from carriers, which are only for long-distance trans- portation. With respect to fishing vessels, there are two kinds: bait boats and purse seiners. The latter are, in effect, the only fishing vessels used in large fishing operations. The Employer's employees have been performing the work of unloading fish from these vessels. The procedure followed is that a group of employees who man the cranes will lift the unload- ing buckets containing the fish from the vessels to the dock where there are fish containers. The fish are removed from the unloading buckets into these fish containers by a group of laborers. From there, fork- lift drivers transport the fish from the dock to the freezer or processing facility. This procedure is fol- lowed at all Van Camp cannery facilities. Prior to the scheduled commencement of the Employer's San Diego operations on March 1, 1976, the Employer operated canneries at both Terminal 225 NLRB No. 81 INTL. LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 29 Island and Puerto Rico. At San Diego, the Employer had 10 hourly production employees on the payroll. Of these 10, at least 6 had approximately 10 years' experience with Van Camp, at either Terminal Island or Puerto Rico. Thus, the Employer had transferred employees from its other facilities in order to be ready to receive the MV Gina Ann, the first fishing vessel scheduled to be unloaded at the Employer's San Diego cannery. Unloading operations were scheduled to commence on March 1, 1976. For March 1, the Employer had designated which of its employees were to perform the duty of unload- ing the Gina Ann. During the morning of March 1, however, William Coleman, president of Local 29, approached Roy Thompson, general manager of Cal- ifornia operations for Van Camp, informing the lat- ter that the Longshoremen claimed the work assign- ment of unloading fish from the fishing vessel Gina Ann. This assignment had been given to employees of the Employer. Subsequently, Thompson directed the Gina Ann to proceed to Terminal Island for unload- ing. On March 26, the Employer and the Longshore- men met at Terminal Island to attempt to settle the disputed claim to work. Coleman; Alex Castaneda, an organizer for the International; Don Wright, the Longshoremen's regional director for southern Cali- fornia; John Schobel, the director of labor relations and urban affairs for Ralston Purina; and Thompson were present at that meeting. The parties explained their positions. The Longshoremen offered to write a letter stipulating that if the Employer used members of Local 29 to unload seven fishing vessels which were waiting to be unloaded at the San Diego Tenth Street Terminal, it would not constitute a precedent, and that both parties could later discuss the jurisdic- tional dispute. The Employer's response was that if its own employees were permitted to off-load the fish, it would give Local 29 a letter that such unload- ing would not constitute a precedent. Local 29 reject- ed this offer. The parties have stipulated that there has been no voluntary adjustment of the disputed work assignment. C. Contentions of the Parties The Longshoremen's position with respect to the work assignment is as follows: The unloading and/or movement of cargo from the dock of purse seine fishing vessels to the Employer's cannery premises located at 1025 East Harbor Drive, San Diego, California. The Employer has taken the position that the work assignment dispute is broader in scope: 625 The manning of cranes for the off-loading of fish from fishing vessels to the dock and the dumping of unloading buckets into storage bins, and the manning of forklifts for the transporting of said fish across the dock to the Employer's cannery located at 1025 East Harbor Drive, San Diego, California. The dispute, then, boils down to the question of whether the Employer should hire several longshore- men to perform the unloading function, which is one part of the Employer's cannery operations. The Longshoremen contends that its members are enti- tled to all work that involves the unloading of any vessel that comes into the public dock at the Tenth Street Terminal. The Employer contends, on the other hand, while conceding jurisdiction to the Long- shoremen with respect to the unloading of carriers, that the Employer is under no obligation to refrain from using its own employees to unload any fishing vessel at the Terminal. The scope of the dispute, then, is limited to the unloading of fish from fishing vessels at San Diego. In sum, the Longshoremen claims the work for its members, the Employer for its employees. Furthermore, the Longshoremen con- tends that under the theory of "work preservation," 2 it is not laying claim to work assigned anew by the Employer to some other group of employees as in classic jurisdictional disputes, but is merely trying to preserve jobs already performed by its members. The Longshoremen is also contending that it is the Employer, rather than the Employer's employees, who is really the Longshoremen's rival in this situa- tion. The Union asserts that there is no jursisdiction- al dispute, because there is no dispute between com- peting groups of employees. The only parties to the dispute, the Union claims, are the Longshoremen and the Employer. Finally, the Employer contends that the Long- shoremen violated Section 8(b)(4)(D) by threatening to picket and by threatening to use force in order to coerce the Employer to assign the disputed work as- signment herein to the Longshoremen, rather than to the Employer's employees. The Longshoremen, how- ever, contends that it never indicated that it had any intention of picketing or striking, but that it merely presented its claim to the Employer in a reasonable manner. D. Applicability of the Statute Before the Board may proceed with the determina- tion of a dispute pursuant to Section 10(k) of the Act, 2 International Brotherhood of Electrical Workers, Local 292, AFL-CIO (Franklin Broadcasting Company), 126 NLRB 1212 (1960) 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it must be satisfied that (1) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and (2) the parties have not agreed upon a method for the voluntary adjustment of the dispute. With re- spect to the showing of reasonable cause, two issues must be disposed of: (a) whether there is a genuine jursidictional dispute beween active claimants, and (b) whether Longshoremen threatened and coerced the Employer and its employees, thereby causing the latter to refrain from unloading the MV Gina Ann at the Tenth Street Terminal in San Diego. First, it is clear that in order for there to be a cog- nizable jurisdictional dispute, it is only necessary that there be a "dispute between two or more groups of employees over which is entitled to do certain work for an employer.' 13 In the present case, the Em- ployer's employees are not organized. Further- more, it seems that the Employer is the party who is actively prosecuting this claim, not its employees. However, the Employer's employees have not dis- claimed the work, and therefore they are considered active claimants to the work in dispute 4 Secondly, the Longshoremen threatened the Em- ployer with picketing, and, in addition, through acts of coercion and intimidation, restrained the Employ- er from assigning the work in dispute to its own em- ployees at the San Diego cannery. Instead of unload- ing the fish at San Diego, the Employer unloaded cargo at Terminal Island. Because of this move, the Employer incurred additional expense. During the morning of March 1, 1976, William Coleman, president of Local 29, along with approxi- mately 10 to 15 longshoremen, approached Roy Thompson, general manager for the Employer, on the dock at the Tenth Street Terminal. Coleman told Thompson that his Union claimed jurisdiction for unloading fish from the MV Gina Ann. In response, Thompson stated that insofar as the unloading of fishing vessels was the heart of the dispute, such ves- sels were exempt from the Longshoremen's jurisdic- tion. Coleman replied that the Longshoremen did in- deed have such jurisdiction, at least in San Diego, and that the Employer could not unload fish from the Gina Ann. Subsequently, Thompson told his em- ployees that they should go to Terminal Island to unload the cargo. On April 5, Alex Castaneda, an organizer for the International, said to Thompson, at a meeting set up to adjust the dispute, that the Longshoremen had 3 N L R B v Radio and Television Broadcast Engineers Union. Local 1212, International Brotherhood of Electrical Workers, AFL-CIO (CBS), 364 U S 573, 579 (1961) Sheet Metal Workers International Association, Local Union No 272, Sheet Metal Workers International Association, AFL-CIO (Valley Sheet Met- al Company), 136 NLRB 1402 (1962) enough members for a "good demonstration." This remark was in reply to a query made by Schobel as to how many members the Local had. We conclude that this statement, in conjunction with the confrontation at the dock on March 1, constitutes a threat to picket the Employer for the purpose of forcing the Employ- er to assign the work in dispute to the Longshore- men. Thirdly, the Longshoremen's contention that it is merely attempting to preserve work formerly per- formed by its members is without merit. In order for work to be preserved, there must have been work to begin with. Apparently longshoremen had had a great deal of work at the Tenth Street Terminal prior to the Employer's move to San Diego. However, longshoremen have never performed work for the Employer in San Diego. The Employer did not dis- place any longshoremen from work at the Tenth Street Terminal. If longshoremen have suffered a loss of work, it is because commercial activity has de- clined at the public dock. The parties stipulated that they have no agreed- upon method for the voluntary adjustment of the dis- pute. We conclude, therefore, that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that the dispute is properly before us for determination. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors.' The Board has held that its determination in a jurisdic- tional dispute is an act of judgment based on com- monsense and experience and reached by balancing those factors involved in a particular case.' The following factors are relevant in making the determination of the dispute before us: 1. Board certification The parties stipulated that there has been no certi- fication by the Board of any labor organization as the exclusive bargaining representative for the em- ployees who perform the work that is the subject of this dispute. 2. Collective-bargaining agreements The Employer is not a party to any collective-bar- gaining agreement with any local of the Internation- 5 CBS, supra 6 International Association of Machinists, Lodge No 1743, AFL-CIO (J A Jones Construction Company), 135 NLRB 1402 (1962) INTL. LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 29 627 al. Nor is there any special agreement regarding the unloading of fish from fishing vessels carrying Van Camp fish. Furthermore, the Employer does not have any contract with any stevedoring company in San Diego that covers the unloading of fishing ves- sels; the same holds true of the Employer's facilities at Terminal Island and Puerto Rico. The Longshore- men do have an agreement with the Pacific Maritime Association (PMA.7 However, the Employer is not a member of the PMA. 3. Employer assignment and preference The Employer has assigned the work, and prefers an assignment, to its own employees. 4. Employer and industry practice The Employer's employees have always unloaded fish from its fishing vessels at Terminal Island and Puerto Rico. In addition, it is the established practice for the Employer's competitors, Sun Harbor Indus- tries, Pan Pacific, Starkist Foods, Del Monte Foods, and Neptune Packing Company, to use their own employees to unload all of their fishing vessels. 5. Relative skills Although members of Longshoremen appear to be adequately skilled to unload fish from fishing vessels, the Employer's employees seem to be better equip- ped to handle the particular problems of unloading fish from fishing vessels, as opposed to carriers. While the fish on a carrier are not frozen in brine, but rather are stacked in the hold of the vessel, the fish in purse seiners are packed in a well after they are caught and require brine circulation for unload- ing. Therefore, the Employer's employees, most of whom have had considerable experience in unload- ing such vessels, are more qualified to perform the task of unloading fish from fishing vessels. 6. Economy and efficiency of operations The record shows that it is more economical and efficient for the Employer's employees to unload the fish. Since there is no way to predict precisely when fishing vessels will arrive in port, many man-hours would be wasted if the Employer had to hire several longshoremen with any degree of prior notice and assurance of guaranteed work. It is an uneconomical and inefficient use of manpower to have men idle if a 7 See Pacific Coast Longshore Contract Document 1973-75 (ILWU- PMA), G C Exh 6 fishing vessel does not arrive when expected. It may also be inefficient when a fishing vessel does come to port, because if the catch is relatively small, a boat may take as little as 2 hours to unload. In addition, the fish may be in such a condition that would make it difficult, if not impossible, to unload the fish as quickly as usual. Frozen fish, for example, take time to thaw out. If the Employer were to use its own employees as it has, however, it could make efficient use of the varied skills of its employees. Thus, if a Van Camp employee has no work at the dock, he can return to the fishroom while awaiting the arrival of a fishing vessel, and in the meanwhile could perform a number of functions, including that of a butcher, racker, and fish checker. Of the 10 hourly production employees at the Employer's San Diego facility as of March 1, 1976, 6 had had 10 years' experience with the Employer. These six employees were transferred from Terminal Island, where they had had experi- ence unloading fish. Furthermore, the Employer has other experienced employees at Terminal Island who are scheduled for transfer to San Diego. Conclusions Based on the entire record, and after full consider- ation of all relevant factors, we shall assign the work in dispute to the Employer's employees. We reach this conclusion particularly in view of the Employer's assignment and preference, industry practice, the rel- ative skills of the disputants, and the relative econo- my and efficiency of operations. 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 pro- ceeding, the National Labor Relations Board hereby makes the following Determination of Dispute: 1. Employees employed by Van Camp Sea Food Company, Division of Ralston Purina Company, are entitled to perform the work of unloading any and all fish from all fishing vessels, including purse seiners, at the Employer's cannery facilities at San Diego, California. More specifically, this work assignment in favor of said employees of Van Camp includes the manning of cranes for the off-loading of fish from said fishing vessels to the dock, the dumping of un- loading buckets into storage bins, and the manning of forklifts for the transporting of said fish across the dock to the Employer's cannery located at 1025 East Harbor Drive, San Diego, California. 2. International Longshoremen's and Warehouse- men's Union, Local No. 29, is not entitled and has 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not been entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require the Employ- er to award work to its members or to employees it represents. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Long- shoremen's and Warehousemen's Union, Local No. 29, shall notify the Regional Director for Region 21, in writing, whether or not it will refrain from forcing or requiring the Employer by means proscribed by Section 8(b)(4)(D) to award the work in dispute to its members or to employees it represents rather than to employees employed by Van Camp Sea Food Com- pany, Division of Ralston Purina Company.