ILWU, Local 13

ILWU, LOCAL 13 541 International Longshoremen's and Warehousemen's Union; Local 13, International Longshoremen's and Warehousemen's Union; and Local 63, International Longshoremen's and Warehousemen's Union and California Cartage Company, Inc. Case 21-CD-298 December 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBER KENNEDY AND PENELLO Upon a charge filed on June 30, 1971, by California Cartage Company, Inc., hereafter Employer, and duly served on the International Longshoremen's and Ware- housemen's Union; Local 13, International Long- shoremen's and Warehousemen's Union; and Local 63, International Longshoremen's and Warehousemen's Union, hereafter collectively referred to as Respond- ents, the Regional Director for Region 21 of the Na- tional Labor Relations Board issued a complaint and notice of hearing on April 25, 1974, alleging that Re- spondents had engaged in and were engaging in unfair labor practice affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(D) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Co- pies of the charge, complaint, and notice of hearing were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that during June 1971, Re- spondents violated Section 8(b)(4)(D) of the Act by orally and in writing instructing, ordering, and appeal- ing to employees employed by the Los Angeles Con- tainer Terminal Company, Inc., hereafter LACT, and other persons, not to handle or work on any shipping containers stuffed or to be unstuffed by the Employer which were handled through the ports of Los Angeles and Long Beach, California, and thereby threatened, coerced, and restrained LACT, and other persons, all in furtherance of a joint plan to create a boycott of shipping containers stuffed or to be unstuffed by the Employer, with an object of forcing Employer, and other persons, to assign the stuffing and unstuffing work to employees who were members of or repre- sented by Respondents, which resulted in LACT and other persons' employees refusing to accept delivery of, permit pickup of, or otherwise handle or work on ship- ping containers stuffed or to be unstuffed by Employer. The complaint further alleges that Respondents failed and refused to abide by the Board's Decision and Determination of Dispute' in the underlying 10(k) proceeding, which awarded the disputed work to em- ployee-members of or represented by Local 692, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, hereafter Teamsters, and have continued to demand that Em- ployer and other persons assign the disputed work to employees who are members of or are represented by Respondents. Thereafter, on May 1, 1974, Respond- ents filed an answer to the complaint, admitting in part and denying in part the allegations of the complaint. On June 10, 1974, counsel for the General Counsel filed with the Board a Motion for Summary Judgment, attaching exhibits and the decisions in Cases 21-CD-298,2 21-CC-1326, and 21-CE-102, -109, -111, -112, and -116,3 and requesting that the Board take official notice of all relevant documents and facts therein. In his motion, the General Counsel submits that the Board has previously considered the identical conduct by the same parties in these cases, and that the Respondents' 8(b)(4)(D) objective may also be inferred from Respondents' conduct as found therein. He fur- ther contends that Respondents' failure and refusal to comply with the Board's 10(k) award constitutes a vio- lation of Section 8(b)(4)(i) and (ii)(D) of the Act. On June 27, 1974, the Board issued an order transferring the proceedings before it and a Notice To Show Cause why the General Counsel's motion should not be granted. On July 10, 1974, Respondents filed a response to the Notice To Show Cause and an answer to the Motion for Summary Judgment, setting forth arguments in opposi- tion to the motion, and suggesting alternative resolu- tions thereof. 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. Upon the entire record in this proceeding, and the record in the cases set forth above, the Board makes the following: Ruling on the Motion for Summary Judgment Review of all the records, including those of the underlying 10(k) proceeding and the companion CC and CE cases, indicates that following consolidation of three 8(b)(4)(D) charges a hearing was held pursuant to Section 10(k) of the Act. On February 11, 1974, the Board issued a Decision and Determination of Dispute finding, inter alia, that there was a jurisdictional dis- pute between Respondents and the Teamsters, and that International Longshoremen 's and Warehousemen 's Union, et al (Cali- fornia Cartage Company, Inc), 208 NLRB 985 (1974) 2 Ibid 3 International Longshoremen's and Warehousemen's Union, et a! (Cali- fornia Cartage Company, Inc), 208 NLRB 993 (1974) 215 NLRB No. 99 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was reasonable cause to believe the Respondents had sought to resolve the dispute by means proscribed by Section 8(b)(4)(D) of the Act. In pertinent part, the Board awarded to the Employer's employees repre- sented by or members of the Teamsters the disputed work of stuffing and unstuffing containers at the Em- ployer's location which were handled through the ports of Los Angeles and Long Beach, California, and found that Respondents were not entitled to secure such work through means proscribed by Section 8(b)(4)(D) of the Act. The Board further ordered Respondents to notify the Regional Director in writing, within 10 days, whether or not they would comply with this award. Thereafter, allegedly not having been so notified, the Regional Director issued the instant complaint. In its answer to the complaint and response to the Notice To Show Cause, Respondents contend, in sub- stance, (1) that transferring the proceedings before the Board without allowing them to respond to the Motion for Summary Judgment denied them due process and violated the Administrative Procedure Act, (2) that the Board should deny the General Counsel's request that official notice be taken of "all relevant documents and facts" of the underlying cases, as this would not permit them to adequately respond to such "documents and facts" without being advised specifically which such "documents and facts" are relied on by the Board in ruling on this motion, (3) that the denials in their an- swer to the complaint raise questions of fact which preclude granting the Motion for Summary Judgment, and require a hearing, and (4) that their oral and now written statements of an intent to comply with the 10(k) award render this proceeding moot. With regard to (1), the proceedings were transferred before the Board to avoid unnecessary delay and to effectuate the policies of the Act, as provided for in the Board's Rules and Regulations.' Contrary to Re- spondents' view, neither the Board's Rules and Regula- tions, the Administrative Procedure Act, nor constitu- tional due process automatically mandate that the instant proceeding be heard and determined by an Ad- ministrative Law Judge rather than the Board.' Re- spondents were not precluded from opposing the mo- tion, and indeed have done so by their response to the Notice To Show Cause which was issued by the Board for the purpose of soliciting the positions of the parties. Respondents have thus been afforded a proper forum in which to be heard and, accordingly, we find no merit in this contention. Sec 102 50 of the Board's Rules and Regulations, Series 8, as amended 5 See Local Union No. 3, International Brotherhood ofElectrical Workers, AFL-CIO (Mansfield Contracting Corporation), 206 NLRB 423 (1973), Bricklayers, Masons and Plasterers International Union of America v NLRB, 475 F 2d 1316 (C A D C, 1973), enforcing Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No I of Tennessee (Shelby Marble & Tile Co), 188 NLRB 148 (1971) Concerning our taking official notice of "all the rele- vant documents and facts" in the underlying cases cited above, we find Respondents' objections in this regard to be unfounded, since our taking notice of such re- cords from our prior cases involving the same parties and reliance thereon is well settled.6 With regard to (3), Respondents deny the allegations of their having engaged in and continuing to engage in conduct proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act, and argue that a hearing is required. However, in the companion CC and CE cases,' we found, inter alia, on essentially undisputed facts, that Respondents had, by letters and publications distributed to its mem- bers, instructed them, in substance, that containers that had not been stuffed or would not be unstuffed by members of Respondents were not to be loaded or un- loaded upon ships, and that, pursuant to this instruc- tion, Respondents' members and represented em- ployees had refused to load and unload such containers including those stuffed or to be unstuffed by the Employer.' By this conduct, we found that Respond- ents had induced and encouraged employees of the Pacific Maritime Association (PMA), in the course of their employment, to refuse to handle containers stuffed by the Employer, with an object of forcing PMA member companies to cease doing business with the Employer, thereby bringing pressure to bear on the Employer to displace its own employees engaged in stuffing and/or unstuffing containers at its container freight station with Respondents' members. That litiga- tion, at which all parties were given full opportunity to present evidence and litigate the issues, involved the same parties as are involved herein, and dealt with identical conduct as is herein alleged. As such, under principles of collateral estoppel, our previous findings concerning Respondents' conduct are controlling in this proceeding,' and it is clear on its face that this conduct also establishes the existence of the proscribed 8(b)(4)(D) objective. Accordingly, Respondents are precluded from introducing evidence on these issues, which it fully litigated in the companion cases, and no hearing is necessary to establish the conduct. 10 We now consider Respondents' fourth and final con- 6 Mansfield Contracting Corporation, supra 7 208 NLRB 993 8 We note that Respondents stipulated to the letters, publication, and distribution to members, and the Administrative Law Judge found Respond- ents' refusal to load and/or unload non-Respondents' stuffed or to be un- stuffed containers pursuant to these instructions 208 NLRB 993 (ALJD, 111, b, 4) The Board adopted this finding 9 Local Union No 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 197 NLRB 866, 867 (1972) 10 Respondents also deny (a) service of process and proof of jurisdiction, (b) membership of Employer's employees in the Teamsters, (c) the existence of a jurisdictional dispute, and (d) the existence of substantial evidence to support the Board's 10(k) decision These issues were raised and litigated in the 10(k) determination and may not be relitigated herein Shelby Marble & Tile Co, supra ILWU, LOCAL 13 tention that this proceeding is rendered moot by their statements of an intent to comply. Respondents allege in their response to the Notice To Show Cause that they orally advised the Regional Director shortly after the 10(k) award of their past and contemplated future com- pliance with the award, but declined to so state in writing so as not to jeopardize appellate court review of the companion CC and CE cases. Respondents now state in their written response that they intend to com- ply with the award, as they understand it, but reserve the right to change or modify this position upon notice to the Board. We consider neither the alleged oral nor the belated written statements sufficient to render this proceeding moot. Compliance with a 10(k) award requires a good- faith intent by the particular respondent to accept and abide by the award, including the performance of sub- stantially the same acts as are required for a showing that it was intending to comply with a remedial order by the Board." This showing of good faith includes, inter alia, a timely and unequivocal written statement to the Regional Director of such an intent, as is re- quired by the 10(k) award.12 Clearly, Respondents' al- leged oral statement does not meet this showing when the 10(k) award specifically requires a written state- ment. The belated written statement, given some 6 months after the award, does not express a clear will- ingness to abide by the 10(k) award but, rather, injects the uncertain element of Respondents' understanding of the award, and reserves the right to alter even this equivocal position upon a change of circumstances in the future. We do not view the oral or the untimely and equivocal written statements as manifesting the requi- site good-faith intent to comply with the award herein, and accordingly infer that Respondents do not enter- tain such a good-faith intent. In these circumstances, we conclude that this proceeding is not rendered moot. We have found that Respondents have engaged in conduct proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act, and have continued to engage in such conduct by not complying with the Board's 10(k) award. We have also found that Respondents' other contentions in opposition to this motion are without merit, and, ac- cordingly, we shall grant the General Counsel's Motion for Summary Judgment. Upon the entire record in this proceeding, the Board makes the following: Local 595, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL (Bechtel Corporation), 112 NLRB 812 (1955), United Brotherhood of Carpenters and Joiners ofAmerica, AFL-CIO, Local No. 433 (Lippert Brick Contracting, Inc), 207 NLRB 63 (1973) 12 Local 568, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO (Dickerson Structural Concrete Corporation), 204 NLRB 59 (1973) FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER 543 California Cartage Company, Inc., is now, and has been at all times material hereto, a corporation engaged in the transportation of freight by motor truck, and in the operation of warehouses, storage yards, and a con- tainer freight station in Wilmington, California. In the course and conduct of its business operations, Cali- fornia Cartage annually receives gross revenues in ex- cess of $50,000 from the transportation of freight origi- nating outside the State of California. We find, on the basis of the foregoing, that California Cartage is, and has been at all times material hereto, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectu- ate the policies of the Act to assert jurisdiction herein. 11 THE LABOR ORGANIZATIONS INVOLVED International Longshoremen's and Warehousemen's Union; Local 13, International Longshoremen's and Warehousemen's Union; Local 63, International Long- shoremen's and Warehousemen's Union; and Local 692, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, are la- bor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Background and Facts of the Dispute At all times material hereto , Respondents and Cali- fornia Cartage have had a jurisdictional dispute con- cerning the work of stuffing and unstuffing containers which are handled through the Ports of Los Angeles and Long Beach at California Cartage's Wilmington, California, container freight station . Since on or about June 14, 1971, Respondents , in furtherance of said ju- risdictional dispute, and as part of a joint plan to insti- tute a boycott of shipping containers , other than ship- pers loads, which were stuffed or to be unstuffed by California Cartage, orally and in writing instructed, ordered, and appealed to individuals employed by LACT, and other persons, not to handle or work on any shipping containers transported , or to be tran- sported by various shipping lines, which were stuffed or to be unstuffed by California Cartage , and thereby threatened, coerced , and restrained LACT and' other persons. As a consequence, individuals employed by LACT and other persons refused to accept delivery of, permit pickup of, or otherwise handle or work on ship- ping containers stuffed or to be unstuffed by California Cartage. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Determination of Dispute On February 11, 1974, the Board issued its 10(k) award, assigning the work of stuffing and unstuffing containers at California Cartage to employees repre- sented by or members of the Teamsters. The Board also found, inter alia, that the Respondents were not enti- tled to force or require California Cartage to assign such work to members of the Respondents or to em- ployees they represent by means proscribed by Section 8(b)(4)(D) of the Act. C. Respondents' Refusal To Comply Since on or about March 13, 1974, Respondents have refused and continue to refuse to comply with the above-mentioned Decision and Determination of Dis- pute by failing and refusing to notify the Regional Di- rector for Region 21, in writing, within 10 days, of their intent to comply therewith, and have continued to de- mand the disputed work. On the basis of the foregoing, and the entire record in this proceeding, we find that Respondents' refusal to comply with the Decision and Determination of Dis- pute and continuing to demand the disputed work vi- olated Section 8(b)(4)(i) and (ii)(D) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in'connection with the operations of Employer described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V THE REMEDY Having found that Respondents have engaged in and are engaging in unfair labor practices affecting com- merce within the meaning of Section 8(b)(4)(i) and (ii)(D) of the Act, we shall order that they cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. The Board, upon the basis of the foregoing facts, and the entire record, makes the following: CONCLUSIONS OF LAW 1. California Cartage Company , Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Longshoremen's and Ware- housemen's Union; Local 13, International Long- shoremen's and Warehousemen's Union; Local 63, In- ternational Longshoremen's and Warehousemen's Union; and Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondents have violated and are violating Sec- tion 8(b)(4)(i) and (ii)(D) of the Act by failing and refusing to comply with the Board's Decision and Determination of Dispute and by continuing to de- mand the disputed work, thereby threatening and co- ercing and restraining LACT and other persons and inducing and encouraging any individual employed by them to cease performing the disputed work with an object of forcing or requiring the Employer to assign work of stuffing and unstuffing containers to employees represented by Respondents by means proscribed by Section 8(b)(4)(D) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to the provisions of Section 10(c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that Respondents, International Longshoremen's and Warehousemen's Union; Local 13, International Longshoremen's and Warehousemen's Union;' and Lo- cal 63, International Longshoremen 's and Ware- housemen's Union, their officers, agents, and represen- tatives, shall: 1. Cease and desist from refusing to comply with the Board's Decision and Determination of Dispute, and from threatening, coercing, or restraining Los Angeles Container Terminal Co., Inc., or any other person en- gaged in commerce or in an industry affecting com- merce, and from inducing and encouraging any in- dividuals employed by them to cease performing the disputed work, where an object thereof is to force or require California Cartage Company , Inc., or any other person, to assign the work of stuffing or unstuffing containers to employees represented by or members of Respondents rather than to employees represented by or members of Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at their business offices and meeting hall copies of the attached notice marked "Appendix."" 13 In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a (Continued) ILWU, LOCAL 13 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by Respondents' representatives , shall be posted by Re- spondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places , including all places where no- tices to members are customarily posted . Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 21 with signed copies of such notice for posting by the Em- ployer, if willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 545 threaten, coerce, or restrain Los Angeles Con- tainer Terminal Company, Inc., or any other per- son engaged in commerce or an industry affecting commerce, and from inducing and encouraging any individuals employed by them to cease per- forming the disputed work , where an object thereof is to force or require California Cartage Company , Inc., or any other person , to assign the work of stuffing or unstuffing containers to em- ployees we represent or who are our members, rather than to employees who are represented by or who are members of Local 692 , International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 13, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION LOCAL 63, INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION WE WILL NOT refuse to comply with the Board's Decision and Determination of Dispute, and