International Longshoremen's Assn.

654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association, AFL-CIO; International Longshoremen's Association, Local 333, AFL-CIO; International Longshoremen's Association, Local 953, AFL-CIO; International Longshoremen's Association, Atlantic Coast Dis- trict, AFL-CIO and Shipside Packing Company, Inc. and Petroleum, Construction, Tankline Dri- vers And Allied Employees Local Union No. 311, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America. Case 5-CD-218-1, -2, -3, -4 December 30, 1976 I. THE BUSINESS OF THE EMPLOYER Employer is a Pennsylvania corporation engaged in the construction of specialized wooden boxes into which it packs freight for customers for export shipment by oceangoing vessels at two facilities in Baltimore, Maryland. During the past 12 months, a representative period, Employer shipped goods and materials in interstate commerce valued in excess of $50,000 to points outside the State of Maryland. We find that Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction herein. DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Shipside Packing Company, Inc., herein called the Employer or Shipside, alleging that the International Longshoremen's Association, AFL- CIO, and Locals 953 and 333 and the Atlantic Coast District of the International Longshoremen's Associ- ation, AFL-CIO, herein collectively called the ILA, have violated Section 8(b)(4)(D) of the Act by engaging in certain prescribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by the ILA rather than to employees represented by Petroleum, Con- struction, Tankline Drivers and Allied Employers Local Union No. 311, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Teamsters or Local 311. Pursuant to notice, a hearini, was held before Hearing Officer Hubert E. Lott on March 4, 24, and 26, 1976, at Baltimore, Maryland. All parties ap- peared at the hearing and were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues . Thereafter, the Charging Party and ILA filed briefs. 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 rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. The Board has considered the entire record in this case and hereby makes the following findings: 227 NLRB No. 97 II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Teamsters and the ILA are labor organizations within the meaning of the Act. III. DISPUTE A. Work in Dispute The work in dispute consists of packing two or more general cargo items for a single shipper into wooden boxes constructed by Shipside at its Dundalk Terminal and Wicomico Street facilities, Baltimore, Maryland. B. Background and Facts of the Dispute Employer's primary function is the protective crating of machinery parts, equipment, supplies, and general commodities for overseas shipment. The type, dimensions, material, and size of the boxes construct- ed by it are dictated by the size of the load of a customer's goods being transported to a single destination. Employer's customers are obtained through its sales representatives. The customers send the goods directly to Employer or have their vendors send the goods to Employer. Any special handling instructions are indicated by the customer on the purchase order. Employer otherwise determines how the items should be packed and whether they can be combined with other items for the same customer which are being shipped to the same location. A work order is then prepared which specifies the size of the box, its construction, and whether it is to be com- bined with other of the customer's goods. Next the shop measures the items, prepares a pallet, cuts the material (always wood, usually plywood), and partial- ly assembles the box. The items for shipping are placed in the box, anchored, and secured and, if necessary, the box is assembled around them. As assembled, the boxed cargo is transported by truck to the pier for unloading by longshoremen who then INTERNATIONAL LONGSHOREMEN'S ASSN. either load the boxes into containers or directly aboard the ship. The boxes constructed and packed by Shipside are utilized for one-way trips only and are never reused. Prior to the 1950's, loose or "break-bulk" solid cargo moving over the docks at the Baltimore port was loaded onto oceangoing vessels in cartons and bundles on pallets. Beginning in the early 1950's, as a labor-saving device, cargo was loaded into boxes of a specific size and volume (approximately 279.5 to 331.06 cubic feet) at the pier by longshoremen who then loaded these boxes onto ships. These "dravo" boxes were the forerunner of the present containeri- zation. Today, containerization is the method by which a large percentage of goods are shipped aboard oceangoing vessels. Under this method, break-bulk cargo is placed in large metal enclosures, usually 8 by 8 by 20 or 40 feet or larger. Containers usually have locking points designed to fit the container into slots in the hold of a containerized ship or on the chassis of a truck of other over-the-road carrier. Containers are usually owned by the shipping line and are reusable. Traditionally, at the Baltimore port, longshoremen have loaded general break-bulk cargo into containers and loaded the containers onto ships. Nevertheless, the phenomenal development of containerization resulted in drastic reduction of longshoremen work which finally lead to a 56-day strike by the ILA in 1968. Following the settlement of that strike, the ILA and the Steamship Trade Association of Baltimore, Inc. (herein STA),1 entered into a collective-bargain- ing agreement which contained the "Rules and Conditions Covering Handling of Containers." The rules on containers have been incorporated into all subsequent contracts and preserve to longshoremen the right to load and unload all containers owned, leased, or used by parties to the agreement which are destim' for or coming from any point within a 50- mile radius of the center of the port. Beginning in mid-July 1975, ILA members have delayed the loading aboard scheduled ships of wooden boxes constructed and packed by Local 311 members at Employer's facilities on the ground that these boxes are really containers which ILA-repre- sented employees should load, and are used to circumvent the rules on containers. Employer filed the instant charges on October 6, 1975, alleging that on or about September 29, 1975, ILA violated Section 8(b)(4)(D) by engaging in and inducing and encour- aging the employees of ITO Corporation of Balti- more, a member of STA, to engage in a concerted I STA is an organization of employers (steamship lines, steamship agencies, and contract stevedoring companies) doing business in the Baltimore port for the purpose of bargaining collectively on behalf of its members with labor organizations, including the ILA. STA is a member of Council of North Atlantic Shipping Associations, herein CONASA, which is 655 refusal to load boxes of cargo aboard the vessel Santa Barbara of Prudential Grace Lines, with an object of forcing Shipside Packing Company to assign certain wetk to employees represented by local unions of the Atlantic Coast District, ILA, rather than to employ- ees represented by Local 311. C. Contentions of the Parties ILA contends that no real dispute as to jurisdiction exists between Teamsters representing the employees of the Employer and the ILA, since ILA is clearly entitled to perform the handling of any cargo not requiring special protective crating or packing that appears on the pier to be loaded aboard ships. Further, ILA contends that any matters concerning the loading of such general cargo into boxes of such size, construction, and ownership as may bring them within the requirements of the container rules must be disposed of and determined by the mechanism provided for in the container rules. ILA argues that Employer is bound by the container rules because its parent corporation, Lavino Shipping Company, is signatory to collective-bargaining agreements con- taining the container rules. In addition, ILA contends that the labor force represented by ILA has traditionally handled general cargo for the purpose of stowing same aboard vessels, and that this work force possesses the skills necessary for the various facets of this operation. The ILA also argues that the increase in Shipside's workload results from a shifting of work from the employees at the dockside represented by the ILA to the employees of Shipside represented by the Teamsters. Finally, ILA contends that Employer is attempting to circumvent the container rules by constructing and packing general cargo into wooden boxes (less-than-container size). Employer contends that it has no contract with ILA and is not bound by the rules on containers by virtue of its relationship with Lavmo Shipping Company. Further, Employer contends that the wooden boxes it specially constructs are not "containers" within the meaning of the container rules and that the packing of two or more items for a single customer into those wooden boxes is not "consolidation" as defined by the container rules. Even if it were bound by the container rules, the work in dispute was assigned to employees represented by Local 311 prior to the effective date of the agreement setting forth the container rules. Finally, Employer contends that employer preference, area practice, and relative skills an association of employer shipping organization Since 1971, CONSA has engaged in collective bargaining and entered into agreement , including the rules on containers, on behalf of its employer association members Employer is not a member ofSTA. However, its parent corporation, Lavino Shipping Company, is a member See discussion supra 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD favor Employer's assignment of the work in dispute to employees represented by Local 311. Although Local 311 did not file a posthearing brief, its position at the hearing was the same as Shipside's. D. Applicability of 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 (1) there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated, and (2) that the parties have not agreed upon a method for the voluntary adjustment of the dispute. As to the second requirement, the parties stipulated that they are not signatory to any agreements providing for the voluntary resolution of jurisdiction- al disputes. There is no evidence in the record to the contrary. As to the first requirement, the record establishes that in mid-July and in August, Septem- ber, October, and November ILA instructed its members to refuse or delay loading of wooden boxes packed by Teamsters members, and ILA members did so.2 We conclude, therefore, that there is reason- able 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. Section 2. It is understood and agreed by the parties hereto that the sole purpose of this Article is to protect and preserve bargaining unit work for those employees covered by this Agreement. There is no description of unit work in the contract. However, the classifications listed indicate that the disputed work is the type of work performed by unit employees. Employer is not a party to any contract with the ILA. The latter contends, however, that Employer is bound by the contract between ILA and STA, of wht;,h Lavino Shipping Company (herein called Lavino) is a member, pursuant to rule 7 of the rules on containers.3 The Board, in the companion case to this proceeding, International Longshoremen's Associ- ation, AFL-CIO, et al. (Shipside Packing Company, Inc.), supra, finds that Shipside and Lavino are separate and independent corporations. Thu', Em- ployer is not bound by the collective-bargaining agreement between ILA and STA.4 We, therefore, find that the collective-bargaining agreement with Local 311 tends to favor the assignment of the work in dispute to employees represented by that labor organization. E. Merits of the Dispute 1. Collective-bargaining agreements Local 311 has represented Employer's hourly employees since Shipside began operations in Balti- more in April or May 1968. The initial collective- bargaining agreement between Local 311 and Em- ployer was effective May 1, 1968. The current agreement is identical and the effective dates are May 1, 1974, until April 30, 1977. The contract provides: Article XIX Bargaining Unit Work Section 1 . The Company shall not contract or subcontract out, nor allow any employee other than employees in the bargaining unit to perform any work which falls within the scope of the bargaining unit under this Agreement that will result in layoff or discharge of any employees in the bargaining unit. 2 See International Longshoremen's Association, AFL-CIO, et al (Shtpside Packing Company, Inc), 227 NLRB 659, issued this date, where the Board is finding that this same conduct , for an object of forcing and requiring various neutral employers or persons to cease doing business with Shipside, violates Sec. 8(b)(4)(i) and (ii)(B) of the Act Note also that in that decision the Bonrd find- that ILA, the respondents therein , were seeking to acquire the work here in dispute rather than attempting to retain or preserve it 3 That rule provides . "Containers owned , leased or used by companies 2. Employer and industry practice Employer has consolidated general cargo into one box for customers since it began operations in April 1968 at its Dundalk Terminal facility and since July 1974 at its Wicomico Street facility. Employer had no dispute with regard to this work with ILA prior to March 1975. Employer's predecessor, George's Transfer & Rigging Company, packed general cargo for export for 3 years, 1965-68. Davidson Transfer and Storage Company, a competitor of Shipside, has constructed wooden boxes and packed general cargo into those boxes for export shipment since 1960, without incident. Davidson's employees are repre- sented by Teamsters Local 557. Furthermore, the Board finds in the companion unfair labor practice case that the work performed by Shipside is of a nature never previously performed by longshoremen at the Baltimore port. On the basis of the above, we find that the factors of area and industry practice favor the assignment of the disputed work to employ- ees represented by Local 311. which are affiliated either directly or through a holding company with a carrier or direct employer shall be deemed to be containers owned, leased or used by a carrier or direct employer. Affiliation shall include subsidiaries, and/or affiliates which are effectively controlled by the carrier or direct employer, its parent, or stockholders of either of them." 4 In view of this, we find it unnecessary to reach Employer's further contention that in any event tt e container agreement does not apply to boxes packed by Employer. INTERNATIONAL LONGSHOREMEN'S ASSN. 657 3. Skills Both longshoremen and employees represented by Local 311 have performed the work of packing general cargo into containers and/or wooden boxes. No special skills are required for this function. However, Employer packs general cargo for its customers as a corollary to its function of specially crating machinery and equipment and the general cargo often requires specialized crating and packing due to shipping and climatic conditions to which the shipment may be exposed during transit and perhaps at destination. Employer's employees in classifica- tions of sawman, mechanical equipment operator, crate assemblyman, packer, packer's helper, and loader are represented by Local 311 and are trained on the job to perform increasingly skilled duties. In contrast, Employer has never employed members of the ILA. Longshoremen have never performed off- pier work. The carpentry work performed by them on the pier is limited to shoring on board ships and repairing boxes and only occasionally the construc- tion of boxes. We find, therefore, that this factor favors the assignment of the work in dispute to employees represented by Local 311. 4. Economy, efficiency of operation, and economic impact As noted above, Employer has a policy of informal- ly training its unskilled employees represented by Local 311 gradually to assume greater responsibilities and perform more complicated tasks as they acquire on-the job experience and training. Presumably, therefore, employees represented by Local 311 can be switched to various jobs when the need arises. We find unconvincing ILA's contention that the increase in Employer's business is obviously the result of its siphoning away traditional longshoremen work since ILA work was decreasing at the same time. There may be any number of other reasons for the increase in Employer's business. In any case, in considering the factor of economic impact, the Board does not look to the relative economic positions of the groups of employees seeking the work . It would be particularly undesirable to do so where these posi- tions are due to competitive forces in our economy such as those at work between industries or employ- ers. Rather, we examine the effect of an award to either group on Employer's present work force. Employees represented by Local 311 have performed the work in dispute for the past 8 years. ILA employees have not been performing the work. An assignment to employees represented by ILA would result in a reduction in employment opportunities for Employer's present work force whereas an assign- ment to these employees would not require any reduction in the number of positions for employees represented by the ILA. Therefore , we find that the factors of efficiency and economy of-operation and economic impact favor the assignment of the disput- ed work to employees represented by Local 311. 5. Employer preference The record clearly establishes that Employer would prefer award of the disputed work to employees represented by Teamsters . This factor, while not determinative, tends to favor award of the work to employees represented by Local 311. Conclusion Upon the record as a whole , and after full consider- ation of all relevant factors involved, we conclude that the Shipside Packing Company employees who are represented by Local 311 are entitled to perform the work in dispute . We reach this conclusion on the basis of Employer's contractual relationship with Local 311 , employer and area practice, relative employee skills, efficiency and economy of operation and economic impact, and employer preference. Accordingly, we shall determine the dispute before us by awarding the disputed work at Employer's Dun- dalk Terminal and Wicomico Street facilities , Balti- more, Maryland, to Employer's employees represent- ed by Local 311, but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and the entire record in this proceeding, the National Labor Relations Board hereby makes the following Determination of Dis- pute: 1. Employees employed by Shipside Packing Company, Inc., who are represented by Petroleum, Construction, Tankline Drivers and Allied Employ- ees Local Union No. 311 , affiliated with the Interna- tional Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, are entitled to perform the work of packing two or more items of general cargo for a single shipper into wooden boxes at the premises of Shipside Packing Company, Inc., at its Dundalk Terminal and Wicomico Street facilities, Baltimore, Maryland. 2. International Longshoremen's Association, AFL-CIO, and its Local 333, Local 953, and Atlantic Coast District, are not entitled by means prescribed by Section 8(b)(4)(D) of the Act to force or require Shipside Packing Company, Inc., to assign any such disputed work to employees who are represented by 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association, AFL- CIO. 3. Within 10 days from the date of this Decision and Determination of Dispute, International Long- shoremen's Association, AFL-CIO, and its Local 953, Local 333, and Atlantic coast District, shall notify the Regional Director for Region 5, in writing, whether they will refrain from forcing or requiring the Employer, by means proscribed in Section 8(b)(4)(D), to assign the work in dispute to employees represent- ed by those labor organizations rather than to employees represented by Local 311.