Local 1294, Longshoremen's Association

LOCAL 1294. LONGSHOREMEN'S ASSOCIATION Local 1294, International Longshoremen's Associ- ation, AFL-CIO and Cibro Petroleum Prod- ucts, Inc. and Local 333, United Marine Divi- sion, International Longshoremen's Association, AFL-CIO Local 1518, Checkers, Clerks and Timekeepers, In- ternational Longshoremen's Association, AFL- CIO' and Cibro Petroleum Products, Inc. and Local 333, United Marine Division, Internation- al Longshoremen's Association, AFL-CIO. Cases 3-CD-528 and 3-CD-529 July 30, 1981 DECISION, DETERMINATION OF DISPUTE, AND ORDER This is a consolidated proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed by Cibro Petro- leum Products, Inc., alleging that Local 1294, In- ternational Longshoremen's Association, AFL- CIO, and Local 1518, Checkers, Clerks and Time- keepers, International Longshoremen's Association, AFL-CIO, 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 employees represented by them rather than to employees represented by Local 333, United Marine Division, International Longshoremen's Association, AFL-CIO. Pursuant to due notice, a hearing was held before Hearing Officer Christopher G. Roach on February 13 and March 5, 1981, and before Hear- ing Officer Alfred M. Norek on March 6, 1981. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer filed a brief which has been duly considered. The Board has reviewed the Hearing Officers' 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: 1. THE BUSINESS OF THE EMPI.OYER The parties stipulated, and we find, that the Em- ployer, a New York corporation with its principal place of business in Albany, New York, is engaged in the refining and distribution of petroleum prod- ucts. During the past 12 months, the Employer, in the course and conduct of its business operations, received products valued in excess of $50,000 which were shipped to its Albany, New York, fa- I Local 1518's name appears as amended at the hearing 257 NLRB No. 37 cility directly from points outside the State of New York. Based on the foregoing, we find that Cibro Pe- troleum Products, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. It. THE l.ABOR ORGANIZAIIONS IN\OI Vt) The parties stipulated, and we find, that Locals 1294, 1518, and 333 of the International Longshore- men's Association, AFL-CIO. are labor organiza- tions within the meaning of Section 2(5) of the Act. Ili. THtL DSI'UTEI A. Background and Facts of the Dispute The Employer receives crude oil and finished petroleum products at its facility on the Hudson River in Albany, New York. Each year betveen 10 and 12 ships deliver such cargo to the Employer's terminal. When a vessel arrives at the Port of Albany, the Employer assembles on its dock a line- crew composed of two to four individuals who assist in anchoring the ship. The shipboard crew begins this process by thro ing a messenger line towards the shore. While the linecrew pulls the messenger line ashore, the shipboard crew attaches this line to the larger mooring line contained aboard ship. The linecrew then drags the mooring line ashore and inserts it over a mooring post on the Employer's dock. Finally, the shipboard crew fastens the mooring line to the vessel using ship- board winches. Before the ship is ready to dis- charge its cargo into the Employer's oil tanks, the shipboard and linecrews must tie down from 5 to 17 additional mooring lines depending on the size and configuration of the vessel. Between 1965 and late 1978, the Employer as- signed this line-handling work to its terminal main- tenance employees who were represented by the Cibro Employees Union. On November 20. 1978. the Board certified Local 333 as the exclusive col- lective-bargaining representative of "All terminal maintenance employees, including trainees, em- ployed at [the Employer's] terminal facility located at the Port of Albany, New York .... During the course of the parties' contract negotiations, Albert Cornette, president of Local 333, told the Employer that the line-handling work involved in docking vessels was Xwithin the exclusive jurisdic- tion of his Union. Thereafter, Locals 1294 and 1518 jointly sent letters, dated February 19 and 28, 1979, to the International I.ongshoremen 's Association in which thev asserted that l.ocal 333 had violated 403l DECISIONS OF NATIONAL LABOR RELATIONS BOARD their territorial jurisdiction in the Port of Albany by organizing the Employer's employees. Augus- tine Crocco, president of Local 1294, contacted the Employer's vice president, William Cirillo, con- cerning this matter. During their conversation, Crocco asserted jurisdiction over the Employer's line-handling work on behalf of Local 1294 and then threatened to picket the Employer's terminal if such work was not reassigned to employees rep- resented by his Union. Subsequently, on March 6, 1979, the Employer and Local 333 entered into a collective-bargaining agreement containing a provision which arguably covers the Employer's line-handling work. Shortly after the parties executed this contract, Cirillo learned that Crocco had called the Employer's Albany facility and threatened to picket the arrival of the vessel Pan Oceanic Fame if the Employer continued to assign the work in question to its own employees represented by Local 333. Cirillo imme- diately called Crocco who then reiterated his threat that he ". . . would have some pickets in front of the terminal" unless employees represented by Local 1294 tied up the tanker. When Cirillo ad- vised Local 333 of this problem, Cornette resolved the situation by telling Crocco to arrange for em- ployees represented by Local 1294 to perform the line-handling work on the Pan Oceanic Fame and that Local 333 would reimburse the Employer for theadditional expenses involved. Thereafter, on or about March 14, 1979, the Employer retained the services of John W. McGrath Corporation, a local Albany stevedoring contractor, to tie up the Pan Oceanic Fame. During the next 18 months, McGrath employees represented by Local 1294 continued to perform line-handling work on ships docking at the Employer's facility. On January 13, 1980,2 Thomas Gleason, presi- dent of the International Longshoremen's Associ- ation, notified Crocco and Cornette that he had awarded exclusive jurisdiction over the Employer's line-handling work to members of Local 333. Crocco and James McGahay, president of Local 1518, then sent a joint letter to Gleason on January 16, informing Gleason that they would appeal his decision to the Executive Council of the Interna- tional. Thereafter, Local 333 advised Cirillo that employees represented by it would resume per- forming the Employer's line-handling work. Upon learning of Local 333's action, Crocco sent Cirillo a letter, dated January 21, wherein he informed Cirillo that Local 1294 had appealed Gleason's de- cision and implied that he would picket the Em- ployer if the work were reassigned to employees represented by Local 333. Consequently, McGrath ' All dates hereinafter are in 180 unless otherwise indicated. employees represented by Local 1294 continued to moor ships docking at the Employer's facility. Thereafter, on October 7, Harry Hasselgren, sec- retary-treasurer of the International, advised Crocco and McGahay that the Executive Council had sustained Gleason's decision awarding the Em- ployer's line-handling work to members of Local 333. During a subsequent meeting at its Albany fa- cility on November 5, the Employer told Crocco and McGahay that it had received a copy of the International's letter denying Locals 1294's and 1518's appeal and that it was reassigning its line- handling work to its own employees represented by Local 333. In response, Crocco said that he would picket the Employer's terminal gate or employ picketboats on the Albany waterway if the Employer took this action. While Local 1518's McGahay did not comment, there is evidence that he nodded his head affirmatively as Crocco threat- ened to picket the Employer. The Employer subse- quently reassigned its line-handling work to its own employees represented by Local 333 on or about November 18, but Locals 1294 and 1518 did not picket. On November 18, the Employer also filed the in- stant charges alleging that Locals 1294 and 1518 had violated Section 8(b)(4)(D) of the Act by their conduct during the November 5 meeting. Locals 1294 and 1518 then filed a complaint in a New York State supreme court on December 11 against, inter alia, Local 333 and the International Long- shoremen's Association in which they contended that the award of the Employer's line-handling work to members of Local 333 was in contraven- tion of the International's constitution.3 Thereafter, during the hearing held in the instant case, Locals 1294 and 1518 stated that they did not have any in- terest in obtaining the Employer's line-handling work on behalf of employees they represent, and moved to quash the consolidated notice of hearing issued herein. B. The Work in Dispute The work in dispute, as described in the order consolidating cases and notice of hearing, concerns the following tasks: "The work of line handling of ships docking at the facilities of Cibro Petroleum Products, Inc. at the Port of Albany." However, the Employer made a motion at the hearing to broaden the scope of the disputed work to include the assignment of all line-handling work involved in docking barges at its terminal. Hearing Officer 'The parties subhsquentl) rcnimv ed the suit to he United States Dis- tricl Court, Northern District of New York 404 LOCAL 1294, LONGSHOREMEN'S ASSOCIATION Roach referred the Employer's motion to the Board for determination. We find that the record contains no evidence that Locals 1294 and 1518 have demanded the as- signment of the Employer's line-handling work on barges to employees they represent. Moreover, both Crocco, president of Local 1294, and McGa- hay, president of Local 1518, testified that their members have never performed such work for any employer. Accordingly, in view of the foregoing and the fact that the notice of hearing clearly de- scribes the work in dispute as line-handling work on ships, we hereby deny the Employer's motion to expand the scope of the disputed work. We shall therefore confine our determination in the instant dispute to the work of line handling of ships. C. Contentions of the Parties Locals 1294 and 1518 argued at the hearing that there is no reasonable cause to believe that they have violated Section 8(b)(4)(D) of the Act and that, therefore, the dispute is not properly before the Board and the notice of hearing should be quashed. Both Unions contended that, because they have disclaimed the disputed work, there is no ex- isting work assignment dispute in this proceeding. In this regard, Local 1518 noted that it has never claimed the disputed work on behalf of employees it represents. Local 1294 also asserted that the record fails to establish that it threatened, coerced, or restrained the Employer during the 10(b) period with an object of forcing the Employer to assign the disputed work to employees represented by it. In the event that the Board does decide to make a determination of this dispute, Local 1294 argues that the work in dispute should be awarded to em- ployees it represents based on the Employer's vol- untary assignment of such work to them between March 1979 and November 1980 with the acquies- cence of Local 333. Local 1294 further contends that the International Longshoremen's Association violated Local 1294's exclusive territorial jurisdic- tion in the Port of Albany by awarding the disput- ed work to employees represented by Local 333. The Employer argues in its brief that a jurisdic- tional dispute does exist in this case. It contends that there is reasonable cause to believe that Sec- tion 8(b)(4)(D) of the Act has been violated since Locals 1294 and 1518 threatened to picket its facili- ty and the Port of Albany waterway on November 5, 1980, if the Employer reassigned the disputed work to employees represented by Local 333. Ad- ditionally, the Employer asserts that the disclaimer of the disputed work made by Local 1294 at the hearing was conditional in nature and, for that reason, the Board should not honor Local 1294's disclaimer. It further argues that there is no agreed- upon method for resolving the instant dispute be- cause it does not participate in and is not bound by determinations of the Impartial Jurisdictional Dis- putes Board. Finally, the Employer urges that its assignment of the disputed work to employees rep- resented by Local 333 should be upheld on the basis of their collective-bargaining agreement, Local 333's Board certification, the Employer's preference and past practice, and efficiency and economy of the Employer's operations. Local 333's position essentially is in agreement with that of the Employer. D. Applicability of the Statute Before the Board may proceed with a determina- tion of a 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) has been violated, and (2) there is no agreed-upon method for the voluntary resolution of the dispute. With respect to (1), above, in Case 3-CD-529, we note that the Board's authority under Section 10(k) of the Act is limited to the resolution of actual disputes between competing groups of em- ployees. Thus, it is well established that a cogniza- ble work assignment dispute no longer exists when one of the competing unions or parties effectively renounces its claim to the work in question.4 In the instant matter, we find that Local 1518 effectively renounced its claim to the disputed work and that this disclaimer was not vitiated by any equivocal conduct on its part. Moreover, Local 1518's presi- dent, McGahay, testified that employees represent- ed by that Union do not perform any line-handling work. S Accordingly, in these circumstances we find that competing claims to the disputed work do not exist within the meaning of the Act in Case 3-CD- 529 and we shall therefore quash the notice of hearing issued therein.6 With respect to (1), above, in Case 3-CD-528, the record discloses that, during the meeting held on November 5, the Employer informed Local 1294 of its intention to reassign the disputed work to employees represented by Local 333. President Crocco of Local 1294 then responded that he "would have to picket the plant . . . beginning at Laoruh s' Internatonar l U'io, of .oirrth .Altrica. Local 935. .I'L-CIO (C & S Corrlruciol Co. Inc.). 2106 NL Ri 87 (1973): Sheet Metal WorA- ers Local Ulio,, No. 465 (Thorpe Ilvtulatlonl Cooipai)y. 198 NL RB 1245 (1972). i Local 1518 represents emplo)ee, engaged in performing maritime clerical functions, a type of ' ork not Involl.ed n his dispute 'In ie of o r finding that Local 151 effectivcl disclaimed an1 in- terest in the disputed work. rc find it llinecessairN IIt decide %whether there is reasonabhle cause to belice that l ocal 1518 vioillted Sec. 8(h)(4)(D) of the Act 405 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the gate or picketing on the water via picket boats. "If [any pilots] crossed his picket line to bring a ship into Cibro's facility," Crocco said that he "would be obligated to refuse to handle vessels which they brought into other parts of the Port of Albany and would therefore effectively be shutting down the Port [of Albany]." While admitting that he made these threats, Crocco claimed that he did so at the request of the Employer's representatives who were seeking a Board determination to resolve the instant dispute. On the other hand, Joseph Plunkett, the Employer's plant manager, denied that any company official had urged Crocco to make such statements. It is well settled, however, that a conflict in testimony does not prevent the Board from proceeding under Section 10(k) for, in this proceeding, the Board is not charged with finding that a violation did in fact occur, but only that reasonable cause exists for finding such a vio- lation.7 Moreover, Local 1294 has demonstrated a propensity to employ coercion to obtain the disput- ed work for employees it represents by its prior threats, though occurring outside the limitations period set by Section 10(b) of the Act, to picket the Employer's operations on the Hudson River. Accordingly, without ruling on the credibility of the testimony at issue,s we find that there is reason- able cause to believe that Section 8(b)(4)(D) has been violated. In reaching this conclusion, we note that at the outset of the hearing counsel for Local 1294 moved to quash the notice of hearing issued herein on the ground that I.ocal 1294 has disclaimed an interest in the disputed work. However, in contrast to his unequivocal disclaimer of the disputed work on behalf of Local 1518 in Case 3-CD-529, counsel for Local 1294 subsequently made the following comments in reference to this issue in Case 3-CD- 528: . . . we at this time disclaim the work in- volved here conditioned on the success of our law suit which is now pending in the federal court in the Northern District of New York and its Case 81-CV- . . . 63 which is an action . . . against the International Long- shorernen's Association and Local 333 of the ILA to set aside and invalidate the decision of the International president awarding the work to Local 333. h;lllli;tl [: I l.linif g tlil I IthCse CilClUlllSti 11Ice ICil ti f distingulishlblic lroml /I.cl I I 15. \ lion/ Io - ( ir/!n s' / iI' 'lls a I' lFpp/o I ,cI aid li Ichni- c/III, i . .- I 1) ( 1.( ( Jor acirtn Broadta ufting ( tnpanl, u Dision q/ -I ncrtil Iirahi ariti g Cinc p', I,nc.. 227 NI RI 1462 (1 977). Nshere he d.,SseI lel: there llch 1ii, e1 ls Ctt t ilt' chiploxsCr And thelt Utlilt alleged tI) ha ' \:l.lled Sec h(b)(4(i[)) c1 the Ac\ t cticitlecl " See, e.t . l Gu s I i (ri ' io 3 34 [l, a r r i i In rn itoncai L:inl'on .Norith Atwrac, I/ L ( l) ( I/ lit,/s ( portiL 175 NLRI 608, b O (q69 . . our disclaimer, so the record is clear, is a disclaimer which will be in existence as long as that decision of our International president is in existence. And if we are successful in the federal court, we would of course take the po- sition that we . . . should be assigned the work in question. We conclude that Local 1294 is continuing to assert a jurisdictional claim to the Employer's line- handling work on behalf of the employees it repre- sents. Accordingly, we will not honor such a con- ditional disclaimer, since Local 1294 stated clearly at the hearing that it will persist in its efforts to obtain the disputed work. Accordingly, we hereby deny Local 1294's motion to quash the notice of hearing in Case 3-CD-528. With respect to (2), above, in Case 3-CD-528, there is no evidence that all parties have agreed to any method for the voluntary resolution of the dis- pute. 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 that the Board make an affirmative award of the disputed work after giving due consideration to various relevant factors.9 As the Board has frequently stated, the determination in a jurisdictional dispute case is an act of judgment based on commonsense and experi- ence in weighing these factors. The following fac- tors are relevant in making a determination of the dispute before us in Case 3-CD-528. I. Board certification and relevant collective- bargaining agreements On November 20, 1978, the Board certified Local 333 as the exclusive representative of all the Employer's terminal maintenance employees who presently are performing the disputed work. Article XIII of the collective-bargaining agree- ment between the Employer and Local 333 pro- vides, inter alia, as follows: There shall be two classifications of employ- ees: Process Maintenance Men and and Termi- nal Maintenance Men. These employees shall perform all maintenance and repair work as well as all work in the receipt, flow, transfer, inventory control and discharge of product, from receipt to discharge. [Emphasis supplied.] " \ L.R.B. . Radio & ieleviion Broadcast Engineers Union. Local 1212. lcrnationlu Brotilherhiood iof lectrcal Workers. AFL-CIO [Columbia Br(adcurling Svel,,,. 364 U S 573 (19hl1); International Association of Maclhinists, l.odge No. 1743. AFI.-CIO (J A Jones Construction Com- pany), 15 N RB 140)2 (1962) 4() LOCAL 1294, LONGSHOREMEN'S ASSOCIATION We find that this provision may reasonably be in- terpreted as covering the disputed work. By con- trast, Local 1294 is not a party to a collective-bar- gaining agreement with the Employer. Accordingly, we find that the factors of Local 333's Board certification' ° and its collective-bar- gaining agreement with the Employer favor an award of the line-handling work on ships to em- ployeees represented by Local 333. 2. Employer preference and past practice The record shows that between 1965 and March 1979 the Employer assigned the disputed work to its own terminal maintenance employees who cur- rently are represented by Local 333. Thereafter, in response to Local 1294's threat to picket its oper- ations, the Employer subcontracted the disputed work to John W. McGrath Corporation, an area stevedoring contractor. This company employed employees represented by Local 1294 to perform this work at the Employer's Albany facility. On or about November 18, 1980, the Employer reassigned its line-handling work to its own employees repre- sented by Local 333 in accord with the award made by the Executive Council of the International Longshoremen's Association. These employees continued to perform the disputed work at the time of the hearing. In view of the foregoing, it is clear that the Em- ployer, except when confronted with picket threats, consistently has awarded the disputed work to its own terminal maintenance employees since it began operations at the Albany facility some 16 years ago. We therefore conclude that the Employ- er's preference and its established past practice favor an award of the disputed work to its employ- ees represented by Local 333. 3. Relative skills It is clear from the record that employees repre- sented by either Local 1294 or Local 333 are equally capable of performing the Employer's line- handling work on ships at the Albany facility. Ac- cordingly, we find that this factor does not favor an award of the disputed work to employees repre- sented by either labor organization. 4. Industry and area practice There is no specific evidence regarding the in- dustry practice concerning the work in dispute. With respect to the area practice, Local 1294's president, Crocco, testified that his Union has ex- "' Sec Unil'd .lsssA lVilsi,sl Jrlr lr,, 'int ,rsid . 4prrc s A ss I/ the PluthinstY and Pip/titring Indistiry t ,'nd 'ats d ( tan oda. 'lumhrs I.,al 55. .4AFL-CIO (Midsrvi Prewstrssid (C'osrporssollJ. 4 NlRB 901. 04 X 1970). clusive jurisdiction over the disputed work in the Port of Albany. Crocco subsequently admitted, however, that employees represented by the Team- sters also perform such work in the Albany, New York, area. In view of the foregoing, we conclude that both industry and area practice are inconclusive and do not favor an award of the disputed work to em- ployees represented by either Local 1294 or Local 333. 5. Economy and efficiency of operations The record discloses, as noted. that between 10 and 12 ships annually deliver petroleum products to the Employer's terminal. When they are not per- forming the disputed work, employees represented by Local 333 are engaged in maintenance and repair functions at the Employer's facility. The Employer currently has no employees represented by Local 1294. Under these circumstances, employ- ees represented by Local 1294 would be employed for the purpose of mooring only one or two ships per month if they were awarded the disputed work. Accordingly, we find that the factors of economy and efficiency of operations favor an award of the disputed work to employees repre- sented by Local 333. 6. Other awards As set forth above, the president of the Interna- tional Longshoremen's Association has awarded the disputed work to members of Local 333. Thereafter, the Executive Council of the Interna- tional Longshoremen's Association sustained this decision on or about September 3, 1980. Although decisions of the International Longshoremen's As- sociation are not binding on our determination on the merits of the jurisdictional dispute in this 10(k) proceeding, we find that they are an evidentiary factor herein which favors an award of the disput- ed work" to the employees represented by Local 333. Conclusion Upon the record as a whole, and after full con- sideration of all the relevant factors involved, we conclude that the Employer's employees who are represented by Local 333, United Marine Division, International Longshoremen's Association, AFL- CIO, are entitled to perform the work in dispute. We reach this conclusion based on the Board's cer- tification of Local 333 as the bargaining representa- I r (.'tprc- / an,,d Optz r ( /Iss t ad .Sl S ati ior crs, l . 'oc/ l I , 420, a//hiatcd 2 oll ,rh r, Inr a Ion, I on s/ Aor/ i I Ia cri .J, A-1 - (/0) (( 'st0 flor, ~I Is llllo l t ai / r]: '.s l,0 '',nlsan a and .s/lllL s I- wi itcts,. L , 231 NI.Ri I )71, 1()075 {11 I 407 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive of these employees, the Employer's collective- bargaining agreement with Local 333, the Employ- er's preference and established past practice of as- signing the disputed work to these employees, the factors of economy and efficiency of the Employ- er's operations, and the prior award by the Interna- tional Longshoremen's Association concerning this jurisdictional dispute between Locals 1294 and 333. Accordingly, we shall determine the instant dispute by awarding the disputed work to employees rep- resented by Local 333, United Marine Division, In- ternational Longshoremen's Association, AFL- CIO, but not to that Union or its members. Addi- tionally, we find that Local 1294, International Longshoremen's Association, AFL-CIO, is not en- titled by means proscribed under Section 8(b)(4)(D) of the Act to force or require the Employer to assign the disputed work to employees represented by it. 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 Cibro Petroleum Products, Inc., who are represented by Local 333, United Marine Division, International Longshoremen's Associ- ation, AFL-CIO, are entitled to perform the work involved in performing the line-handling work on ships at the Employer's Albany, New York, facili- ty. 2. Local 1294, International Longshoremen's As- sociation, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Cibro Petroleum Products, Inc., to assign the disputed work to employees represented by it. 3. Within 10 days from the date of this Decision, Determination of Dispute, and Order, Local 1294, International Longshoremen's Association, AFL- CIO, shall notify the Regional Director for Region 3, in writing, whether or not it will refrain from forcing or requiring Cibro Petroleum Products, Inc., by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work to employees represented by it rather than to employees repre- sented by Local 333, United Marine Division, In- ternational Longshoremen's Association, AFL- CIO. ORDER It is hereby ordered that the notice of hearing issued in Case 3-CD-529 be, and it hereby is, quashed. 408