Local 32, ILWU

LOCAL 32, ILWU 167 Local 32, International Longshoremen's and Ware- housemen's Union and Weyerhaeuser Company and Association of Western Pulp and Paper Workers, Local 10. Case 19-CD-377 May 27, 1981 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Weyerhaeuser Company, herein called the Employer, alleging that Local 32, International Longshoremen's and Warehousemen's Union, herein called ILWU, had violated Section 8(b)(4)(D) of the Act by engaging in certain pro- scribed activity with an object of forcing or requir- ing the Employer to assign certain work to its members rather than to employees represented by Association of Western Pulp and Paper Workers, Local 10, herein called AWPPW. Pursuant to notice, a hearing was held before Hearing Officer Mark E. Brennan on January 19, 1981. All parties appearedand were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to adduce evidence bearing on the issues. 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 af- firmed. Upon the entire record in this proceeding, the Board makes the following findings: I. THE BUSINESS OF THE EMPLOYER The parties stipulated, and we find, that the Em- ployer, a Washington corporation, is engaged in the business of manufacturing wood products. During the past calendar year, a representative period, the Employer realized gross revenues in excess of $500,000 and, during the same period, sold goods valued in excess of $50,000 directly to customers located outside the State of Washington. The parties also stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert ju- risdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 32, International Longshoremen's and Warehouse- men's Union and Association of Western Pulp and Paper Workers, Local 10, are labor organizations within the meaning of Section 2(5) of the Act. 256 NLRB No. 24 III. THE DISPUTE A. Background and Facts of the Dispute The Employer is an integrated forest products company with timber holdings and various manu- facturing operations located in Washington, Oregon, and other States, as well as foreign coun- tries. As part of its overall operation the Employer owns and operates several private docks used to transport its own and other manufacturers' prod- ucts. The instant dispute involves the Employer's dock located at Everett, Washington. The Everett dock has been in existence since ap- proximately 1902. Since 1936 the Employer has op- erated the Sulphite Mill adjacent to the Everett dock, at which a chemical woodpulp was pro- duced. In 1953, the Employer began to operate the Kraft Mill, which is located approximately 3 miles from the Everett dock and produces woodpulp. Products produced at the Kraft and Sulphite Mills were exported across the Everett dock. In 1964, the AWPPW became the certified col- lective-bargaining representative for the Employ- er's employees at both the Kraft and Sulphite Mills. Employees at the Sulphite Mill came under the jurisdiction of Local 20 of AWPPW while the Kraft Mill employees came and remain under the jurisdiction of the AWPPW's Local 10. In 1975, the Employer ceased operation of the Sulphite Mill and commenced operation of the Thermo-Mechanical Mill (T-M) which produced a high yield type pulp. The T-M Mill was also locat- ed adjacent to the Everett dock and approximately 70 percent of its total production was exported across the Everett dock. As was the case with the Sulphite Mill, AWPPW's Local 20 represented the T-M Mill employees. Since at least 1977 the goods exported across the Everett dock, in addition to those of the Kraft and T-M Mills, have included pulp from Kamloops, British Columbia; pulp from Casmopolis, Washing- ton; lumber from the Employer's Mills "E" and "B"; and plywood from the Employer's Snoqual- mie, Washington, mill. The foregoing goods are transported by truck to the Everett dock area from the various sites. The trucks are then unloaded and the goods are "high- piled" in warehouses adjacent to the dock where they are inspected and tallied by the Employer's dock superintendent. When informed of an immi- nent shipment, the dock superintendent devises a "plan" for the loading of cargo. Goods in the warehouse are then marked in accordance with the plan which specifies the order of the loading as well as the particular hatch of the ship in which goods will be placed. LOCAL 32, ILWU 167 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When a ship arrives at the Everett dock, em- ployees of the Employer tie the ship to the dock. Meanwhile, piles of cargo are broken down in the warehouse and brought onto the dock to shipside by forklift operators who are also employees of the Employer. In some instances, goods have been "high-piled" on the dock and subsequently broken down again and moved to shipside by the forklift operators. Prior to December 1980, the employees involved in ship tie-up and bringing goods from the warehouse to shipside (as well as casting off the ship's tie-up lines) were the Employer's employees represented by AWPPW and assigned to the ship- ping department of the T-M Mill. Once the goods have been placed at shipside the cargo is hooked to the ship's gear and lifted by crane into the hold of the ship. The work involved in this operation has traditionally been performed by employees represented by ILWU. These em- ployees are employed by Jones-Washington Steve- doring Company, herein called JWSC. JWSC maintains a contract with the Employer by which JWSC is paid its incurred expenses, including wages and other compensation of its employees, as well as a "management fee" calculated on a "cost- plus" basis. JWSC is a member of the Pacific Maritime Asso- ciation, herein called PMA. PMA is an employer association comprised of various stevedoring and shipping companies. PMA is party to a collective- bargaining agreement with ILWU entitled "Pacific Coast Longshore Contract Document," herein called PCLCD. That contract establishes, inter alia, wage and other compensation levels for employees of PMA member employers such as JWSC. It is these wage and compensation levels that are paid to JWSC by the Employer as part of their cost- plus contract arrangement noted above. The Em- ployer is not a member of PMA and is not a signa- tory to the PCLCD. Thus, at the time the events giving rise to the in- stant dispute occurred, work at the Everett dock was performed as follows: the tying up and casting off of ships at the dock was performed by employ- ees of the Employer represented by AWPPW. These same employees also performed the work of moving goods from the warehouse by forklift to shipside. Once the goods were at shipside, employ- ees represented by ILWU performed the work of hooking the goods to the ship's gear and actually loading the ship. In the latter part of 1980, the Employer decided to close the T-M Mill located adjacent to the Ever- ett dock. It so informed Local 20, AWPPW, which represented the T-M Mill employees, including the ship tie-up persons and forklift operators. Although closure of the T-M Mill eliminated manufacturing work at that facility it was determined that cargo dock work at the Everett dock would continue. This work included export of the stockpiled T-M Mill products as well as the products of the Kraft and other mills noted above that traditionally ex- ported goods across the Everett dock. As a result of the announced closing of the T-M Mill, the T-M Mill's employees represented by Local 20, AWPPW, voted to affiliate with Local 10, AWPPW, which represents the Kraft Mill em- ployees. The Employer voluntarily recognized Local 10 as the representative of such employees. The Employer entered into an agreement with both Local 10 and Local 20 providing that the Em- ployer's employees formerly represented by Local 20 who had performed the cargo and dock work at the Everett dock would continue to be assigned that work although they had become formally as- signed to the Kraft Mill. On or about December 12, 1980, the T-M Mill ceased manufacturing operations. As noted above, however, the dock operations continued unabated as stockpiled goods from the T-M Mill, of which there was a 6-month supply, and goods from other facilities continued to be exported across the Ever- ett dock. Work at the dock continued in the same manner as before the T-M Mill closing. Employees of the Employer represented by AWPPW contin- ued to tie up and cast off vessels and move goods from their last place of rest to shipside with the use of forklifts. Employees represented by ILWU con- tinued to move goods from shipside onto the vessel. Thus, the only "change" in the status quo was a change in affiliation for the dock employees from Local 20, AWPPW, to Local 10, AWPPW. On December 21, 1980, employees represented by ILWU engaged in a work stoppage for 45 min- utes at the Everett dock to protest the Employer's assignment of work at the Everett dock. B. The Work in Dispute The work in dispute involves the handling of cargo from the warehouse or last point of rest to shipside at the Employer's dock located at Everett, Washington, and the tying and untying of lines of vessels docked at the Everett dock. C. The Contentions of the Parties The Employer contends that the disputed work should be assigned to its own employees represent- ed by AWPPW. It asserts that such an assignment is in accord with the longstanding and traditional practice which is embodied in both existing and prior collective-bargaining agreements between it and AWPPW. The Employer also argues that an ----- LOCAL 32, ILWU 169 agreement to which it and ILWU are bound dic- tates assignment of the work to employees repre- sented by AWPPW. Finally, the Employer con- tends that efficiency and economy of operations favor assignment to employees represented by AWPPW. The AWPPW contends that the work should be assigned to the employees it represents. For the most part, AWPPW's arguments parallel those of the Employer with special emphasis upon the es- tablished practices and bargaining history which demonstrate that the disputed work has traditional- ly been done by employees represented by AWPPW. The ILWU contends that the disputed work should be assigned to employees it represents. The cornerstone of its argument is that with the closing of the T-M Mill the Everett dock ceased to be an "industrial dock" and became a "commercial dock." ILWU asserts that pursuant to its agree- ment with the Pacific Maritime Association (PMA), the industry practice is to have work of the type in dispute performed by employees repre- sented by ILWU. ILWU also contends that effi- ciency of operations dictates such an assignment and further claims that the historic collective-bar- gaining agreements between AWPPW and the Em- ployer do not clearly define the disputed work as belonging to employees represented by AWPPW. 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 the voluntary adjustment of the dis- pute. At the hearing, the parties stipulated that on De- cember 21, 1980, employees represented by ILWU engaged in a work stoppage for the purpose of forcing or requiring the Employer to assign partic- ular work to employees represented ILWU rather than to employees represented by AWPPW. In ad- dition, there exists no agreed-upon method for the voluntary adjustment of the disputed work. On the basis of the entire record, we conclude that there is reasonable cause to believe that a vio- lation of Section 8(b)(4)(D) has occurred and that there exists no agreed-upon method for the volun- tary adjustment of the dispute within the meaning of Section 10(k) of the Act. Accordingly, we find that this dispute is properly before the Board 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 reached by balancing those factors involved in a particular case.2 The following factors are relevant in making the determination of the dispute before us: 1. Collective-bargaining agreements There are no collective-bargaining agreements to which all parties in the instant dispute are signator- ies. The Employer, however, refers to a settlement agreement entered into in 1973 between the Em- ployer, ILWU, and International Woodworkers of America, AFL-CIO (IWA). A principal purpose of the settlement agreement was to settle pending litigation involving work disputes at certain log yards of the Employer. The preamble provision of the agreement states also that its purpose is "to reg- ulate their [the parties'] present and future relation- ships . .. " upon the terms set forth therein. More important, asserts the Employer, is paragraph 3(a) of the agreement which provides: Past work practices will be maintained at all other existing facilities and docks owned or operated by Weyerhaeuser. Future changes of forest products cargo will not require changes in past work assignments. The Employer argues that it is merely continuing past work practices and that the closing of the T- M Mill is, at most, a change in forest products cargo. The parties also present extensive arguments concerning terms in the collective-bargaining agreement between ILWU and PMA referred to herein as PCLCD. The Employer argues initially that, since it is not a PMA member, the PCLCD is not binding upon it, yet even if the document is relied upon, certain terms contained therein sup- port the view that employees represented by AWPPW are entitled to the work. ILWU argues that the PCLCD clearly mandates that the work be assigned to employees it represents. The provision relied upon heavily by ILWU, paragraph 1.45, states: ' L. R.B. v. Radio & Television Broadcast Engineers Union, Local 1212. International Brotherhood of Electrical Workers, AFL-CIO [Columbia Brxadcasting Sysremj, 364 U.S. 573 (1961) 2 nternational 4ssociation of Machiniss. Lodge No. 1743. .4FL CIO (J. .4. Jones Construction Company). 135 NLRB 1402 (1962) LOCAL 32, ILWU 169 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The movement of cargo to or from a vessel on an industrial dock shall be defined as work covered by this contract document and is as- signed to longshoremen. Existing practices under which other workers perform such dock work of an existing facility may be continued. An industrial dock is a dock at a facility where materials are manufactured and are processed and from which they are shipped or at which materials used in the manufacture or process are received and the dock operator has a pro- prietory interest in such materials. ILWU argues that, when the T-M Mill closed, the Everett dock ceased to be an "industrial dock," thereby removing the "exception" by which non- ILWU employees had been allowed to perform the disputed work. The Employer seeks to counter this argument with other PCLCD provisions. It cites paragraph 1.11 which states: This Contract Document covers the move- ment of outbound cargo only from the time it enters a dock and comes under the control of any terminal, stevedore agent or vessel opera- tor covered by this Contract Document.... The Employer argues that Jones-Washington, the stevedoring company involved herein, does not take control of the goods until they are placed at shipside. Prior to that point, it argues, non-ILWU employees are entitled to perform the work. The Employer asserts that its position is butteressed by paragraph 1.46 of the PCLCD which provides: Where a non-member of the Association has control over the cargo at its premises or on its vessels, such non-member regular employees may perform work assigned to longshoremen herein while such cargo is out of the control of any member. In our view, none of the foregoing collective- bargaining agreement provisions, standing alone, is dispositive of the instant dispute. We do find, how- ever, a repeated and consistent contractual defer- ence to the maintenance of traditional, longstand- ing work assignments, independent of the particular parties involved. Thus, to the extent the provisions favor any of the parties, we find them to be more consistent with the Employer's and AWPPW's view that the work should continue to be assigned to the Employer's employees represented by AWPPW. 2. Company and industry practice The ILWU argues that industry practice requires an award of the work to employees it represents. The ILWU relies again on the PCLCD as an indi- cation of industry practice. That agreement pro- vides that employees represented by ILWU are en- titled to the work of moving goods from their last point of rest onto ships where the PMA member employer has taken control of the goods. ILWU also relies on the 1973 settlement agreement which assigns the work of moving Weyerhaeuser logs from their last place of rest onto ships at the Em- ployer's Takoma log sort yard and dock. It also points to its agreement with the Teamsters Union which provides that ILWU represented employees are entitled to move goods from their last place of rest onto ships where the PMA member company has taken control of the goods. The Employer and AWPPW emphasize the past pactice of the Employer rather than industry wide practices. Again, emphasis is placed on the long history of the Employer's assignment of the disput- ed work to its own employees represented by AWPPW pursuant to a longstanding collective-bar- gaining relationship. Although lacking in details, there is testimony in the record that the type of work in dispute is performed in the same manner at the Everett dock as at other Weyerhaeuser docks. Based upon the foregoing, we find that while in- dustry practice may favor an award to employees represented by ILWU, the well-established practice at this facility is for the Employer to assign the work to its employees represented by AWPPW. 3. Relative skills; economy and efficiency of operations With respect to the operation of the forklifts and the line work on the ships, the relative skills of the employees involved appear to be comparable. It does appear, however, that employees of the Em- ployer represented by AWPPW are familiar with the warehouse coding system and, therefore, are more skilled and efficient in removing the proper goods from the warehouse. In addition, as employ- ees of the Employer, they are available to perform miscellaneous tasks in the warehouse and on the dock when not performing the specific work in dis- pute. We find, therefore, that relative skills as well as economy and efficiency of operations favor an award to employees represented by AWPPW. 4. Joint Board determinations; union agreements; arbitration decisions There are no joint board determinations or union agreements apart from those noted above that pro- vide assistance in resolving the instant dispute. The parties did introduce several arbitration awards. We find, however, that such awards provide no LOCAL 32, ILWU 171 meaningful aid in resolving the dispute in that each of the awards turns upon particular facts not pres- ent here. 5. Employer preference The Employer has, throughout this proceeding, repeatedly stated its preference that the disputed work be awarded to its employees represented by AWPPW. Conclusion Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that employees of the Employer who are represented by the Association of Western Pulp and Paper Workers, Local 10, are entitled to per- form the work in dispute. We reach this conclusion relying on the expressed preference of the Employ- er; the longstanding history of assigning the disput- ed work to employees represented by AWPPW; the contractual provisions which indicated defer- ence to existing work assignments; and the consid- eration of relative skills and economy of oper- ations. In making this determination, we are award- ing the work in question to employees who are represented by AWPPW, but not to that Union or its members. The present determination is limited to the particular controversy which gave rise to this 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 Weyerhaeuser Company, who are represented by Association of Western Pulp and Paper Workers, Local 10, are entitled to per- form the work of the handling of cargo from the warehouse or last point of rest to shipside and the tying up and casting off lines of vessels at the Em- ployer's dock at Everett, Washington. 2. Local 32, International Longshoremen's and Warehousemen's Union is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Weyerhaeuser Company to assign the disputed work to employees represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 32, Interna- tional Longshoremen's and Warehousemen's Union 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 disput- ed work in a manner inconsistent with the above determination. LOCAL 32, ILWU 171