Longshoremen's Local No. 8

LONGSHOREMEN'S LOCAL NO. 8 International Longshoremen's and Warehousemen's Union, Local No. 8 and Collier Carbon and Chemical Corporation. Case 36-CD-142-2 August 8, 1977 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Collier Carbon and Chemical Corporation, herein called the Employer, alleging that International Longshoremen's and Warehouse- men's Union, Local No. 8, herein called the Respondent, had violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to its employees represented by Respondent rather than to unrepresented employees of the Employer. Pursuant to notice, a hearing was held before Hearing Officer Richard V. Stratton on June 8-10, 1976. All parties appeared and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. 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 of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. 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 Employer is a California corporation which manu- factures urea, a fertilizer, at a jointly owned plant located in the State of Alaska, and ships the urea to Portland, Oregon, for distribution throughout the States of Oregon, Washington, Idaho, and Montana, and that, during the past year, urea valued in excess of $50,000 has been shipped by the Employer from Alaska to Portland, where it has been unloaded from a barge and then shipped directly to customers outside the State of Oregon. We find that the Employer is engaged in commerce within the i The unloading of these vessels was assigned by contract to master stevedores or a construction company which, in turn, utilized the services of organized employees, in several cases employees represented by Respon- 231 NLRB No. 36 meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Respon- dent is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE A. Background and Facts of the Dispute In 1969, the Employer opened a facility on Portland's waterfront known as the Rivergate Termi- nal. That facility receives barge shipments of urea from the Employer's Alaska plant and then distri- butes the urea to various customers in the northwest. The initial shipment of urea to the Rivergate Terminal was made on a freighter, not owned by the Employer, the Nordfels. It was, by contract, unloaded by a construction company utilizing its own employ- ees. Soon after the opening of Rivergate, however, the Employer began utilizing the Kenai, a vessel owned by the Employer and specially constructed for the hauling and unloading of urea. Unloading was performed by the Employer's unrepresented employ- ees, a group augmented by a regular part-time crew supplied by Manpower, a referral agency. Although during the next 5 years shipments of urea were occasionally made on other vessels not, like the Kenai, specially outfitted for hauling and unloading urea,l the major portion of the urea shipments were made by the Kenai. The Kenai shipments, throughout that time, were unloaded exclusively by the Employ- er's employees. In October 1974, the Kenai sank. For the next 18 months, while a replacement vessel for the Kenai was being constructed, the Employer, of necessity, shipped its urea to Rivergate on vessels not specially outfitted for transporting and unloading urea. The unloading was assigned to Pacific Inland Navigation Company, which hired a stevedoring company which, in turn, hired longshoremen from Respondent. Members of Respondent continued to unload all vessels until March 1976. On May 3, 1976, the replacement for the Kenai, the barge Oregon, completed its maiden voyage to Rivergate. Two to 3 weeks prior thereto, officials of Respondent learned that the Employer once again would be using its own employees to unload the Oregon. On April 27, 1976, the Respondent's secretary demanded the unloading be done by Respondent's members. On the morning of May 3, 1976, the Employer's employees unloaded dent. On three occasions during the middle of 1973, the Employer's employees, because of a labor dispute between the construction company and its employees, unloaded one of the vessels. 179 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Oregon. Respondent picketed the Rivergate Terminal that day and remained for I day beyond the date, May 6, the Oregon departed. The pickets were, apparently, removed pursuant to a gentlemen's agreement leaving resolution of the matter to the Board. B. The Work in Dispute The dispute arises solely out of the Employer's assignment to its employees of the unloading of urea from the Oregon. It is clear from the record that Respondent's claim to such work derives solely from those occasions in the past when it unloaded urea at Rivergate from vessels not specifically designedfor the transporting or unloading of urea. Respondent's members never unloaded the Kenai, the Employer's employees always did. Similarly, on the two occa- sions 2 of record when the Oregon docked at Rivergate, the Employer's employees unloaded it. The distinction between vessels specifically outfitted for urea transportation and unloading, referred to by the parties as "urea barges," and those that are not is, it is also clear from the record, a material one. We therefore define the work in dispute as limited to the unloading of urea delivered to the Rivergate Termi- nal on vessels specially equipped for that purpose. C. Contentions of the Parties The Employer contends that there is a jurisdiction- al dispute, that Respondent has violated Section 8(b)(4)(D) of the Act by exercising coercive pressure on it to assign the disputed work to employees represented by Respondent, and that the work in dispute should continue to be assigned to its employees. The Respondent asserts that no jurisdictional dispute exists; that the employees assigned the work by the Employer, to the extent they constitute an identifiable group, did not demand it; that all the case involves is a situation in which employees represented by Respondent performed certain work, the Employer stopped giving that work to the represented employees, and the Employer awarded the work to its unrepresented employees; and that such a dispute is not, therefore, within the intend- ment of Section 10(k) or Section 8(b)(4)(D). 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 2 In addition to the May 3, 1976, voyage, the Oregon delivered urea to Rivergate on May 24. 1976. No picketing apparently took place on that occasion. and that there is no agreed-upon method for the voluntary settlement of the dispute. On the latter point, the parties stipulated they have no agreed- upon method of settlement; on the former, we find reasonable cause. Although the employee group utilized by the Employer to unload the Oregon is composed, in part, of individuals referred by Manpower, the entire group is supervised and paid by the Employer, and is, of equal significance here, a relatively stable work force. Nearly all the Manpower employees have worked 2 to 3 years and many of the Employer's permanent employees were former Manpower em- ployees. Second, that, as Respondent argues in its brief, the Employer's decision "to transfer the work from the longshoremen to its own . . . work force was not prompted by any demands of its own employees" is insufficient to remove the dispute from statute. The Employer's employees, many of whom testified as to their intention to perform the work, have, by "their performance of the work indicate[d] that they claim the work in dispute." Sheet Metal Workers Local Union No. 54 (The Goodyear Tire & Rubber Company and O.T.D. Corporation), 203 NLRB 74, 76 (1973). Respondent's reliance on Highway Truckdrivers & Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (Safeway Stores, Incorporated), 134 NLRB 1320 (1961), to support its further assertion that the present dispute is not within the intendment of Sections 10(k) and 8(b)(4)(D) is misplaced. There, the charging party discharged the entire bargaining unit represented by Local 107 and assigned their work to its employees in different plants. The employer/union character of that dispute was certainly clearer than Respondent's portrayal of the present dispute. The employees represented by Respondent are not the Employer's. Respondent cannot be said to be legitimately raising work- preservation issues in a dispute over work the employees it represents never actually performed; namely, the unloading of urea from urea barges. Moreover, it is clear that the Respondent's claim to the disputed work is not limited to protecting particular represented employees of the stevedore or construction companies which, by contract, unload- ed urea from nonurea barges in the past, but, rather, is extended to encompass all its members. Finally, it is conceded that Respondent picketed the Employer with the objective of forcing the Employer to assign the unloading of the urea barge Oregon to employees represented by it. For all these reasons, we find reasonable cause to believe Respon- 180 LONGSHOREMEN'S LOCAL NO. 8 dent has violated Section 8(b)(4)(D) and that the dispute is properly before the Board for determina- tion under Section 10(k) of the Act. Respondent's motion to quash the notice of the 10(k) proceeding, therefore, is denied. 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 following factors are relevant in making the determination of the dispute before us: I. Relative skills The Employer's employees are the only employees to have unloaded urea from the special urea barges. These employees have satisfactorily performed the unloading and, with one minor exception, have never had a work-related accident during the unloading of the Kenai or the Oregon. While the record does not support the conclusion that employees represented by Respondent, on those occasions when they unloaded urea from the nonspecialized barges, performed inadequately, it is noteworthy that the Employer's employees are thoroughly familiar with the operation of the special urea barges and Respondent's crews would be composed, in part, of casual and "affiliated" employees who have no familiarity with unloading urea. This factor favors an award to the Employer's employees. 2. Economy and efficiency of operation Because there is relatively short notice of arrival times for urea barges, the Employer's employees, a regular crew that can be assembled quickly and without resort to the "allocation" system whereby longshoremen are furnished, provide the Employer with greater efficiency and flexibility. This factor favors an award to the Employer's employees. 3. Present assignment and preference As indicated, the Employer's employees have exclusively unloaded the urea when transported on barges specially outfitted for that purpose and the Employer clearly prefers that to be the case. Finally, there are no Board certifications, collec- tive-bargaining agreements, or arbitration awards applicable to this dispute. For all the above reasons, we conclude that the Employer's unrepresented employees are entitled to perform the work in dispute. Scope of the Award The Employer requests a broad work award "coextensive with the present or future jurisdictional area of ILWU Local 8" and that the award "apply to all unloading work and related work, present and future . including but not limited to deliveries of urea by the Barge Oregon and the sister barge of the Barge Oregon yet unnamed." We believe the request overly broad and, therefore, the determination shall apply only within the context of our findings relative to the work in dispute. 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. The unrepresented employees of Collier Car- bon and Chemical Corporation are entitled to perform the work of unloading urea from vessels specially outfitted for the transporting and unloading of urea. 2. International Longshoremen's and Warehouse- men's Union, Local No. 8, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Collier Carbon and Chemical Corporation 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, International Long- shoremen's and Warehousemen's Union, Local No. 8, 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 disputed work in a manner inconsistent with the above determination. 181