Local 1332, International Longshoremen's Association, AFL-CIO (Trailer Marine Transport Corporation)

LOCAL 1332, LONGSHOREMEN'S ASSOCIATION Local 1332, International Longshoremen's Associ- ation, AFL-CIO and Trailer Marine Transport Corporation and United Industrial Workers, Service Transportation, Professional and Gov- ernment of North America, SIUNA-AGLIWD, AFL-CIO Local 1291, International Longshoremen's Associ- ation, AFL-CIO and Trailer Marine Transport Corporation and United Industrial Workers, Service Transportation, Professional and Gov- ernment of North America, SIUNA-AGLIWD, AFL-CIO. Local 1242, International Longshoremen's Associ- ation, AFL-CIO and Trailer Marine Transport Corporation and United Industrial Workers, Service Transportation, Professional and Gov- ernment of North America, SIUNA-AGLIWD, AFL-CIO. Cases 4-CD-547, 4-CD-548, and 4-CD-549 September 29, 1982 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing a charge filed by Trailer Marine Transport Corporation, herein called the Employer or TMT, alleging that Local 1332, International Longshore- men's Association, AFL-CIO; Local 1291, Interna- tional Longshoremen's Association, AFL-CIO; and Local 1242, International Longshoremen's Associ- ation, AFL-CIO, herein called the ILA Locals, 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 the ILA Locals rather than to employees represented by United In- dustrial Workers, Service Transportation, Profes- sional and Government of North America, SIUNA-AGLIWD, AFL-CIO, herein called the SIU. Pursuant to notice, a hearing was held before Hearing Officer Peter C. Verrochi on March 23, 1982. The Employer, the ILA Locals, and the SIU appeared at the hearing and were afforded full op- portunity to be heard, to examine and cross-exam- ine witnesses, and to adduce evidence bearing on the issues. Thereafter, the Employer and the ILA Locals filed briefs. 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. 264 NLRB No. 61 The Board has reviewed the rulings of the Hear- ing Officer 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 EMPLOYER The parties stipulated, and we find, that the Em- ployer is a Delaware corporation engaged in the transport of cargo as a common carrier. The par- ties further stipulated that during the 12 months preceding the hearing, a representative period, the Employer's gross revenues exceeded $1 million.' 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 that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that the ILA Locals and the SIU are labor organizations within the meaning of Section 2(5) of the Act. Ill. THE DISPUTE A. Background and Facts of the Dispute On January 18, 1982, TMT commenced freight transport operations at its terminal on Petty's Island, Pennsauken, New Jersey, located in the Delaware River directly across from the Port of Philadelphia. TMT, which is new to the Philadel- phia area, is the first shipping company to offer direct common carrier service to Puerto Rico from any terminal in the Philadelphia area or from any other point on the Delaware River. TMT's trans- port operations consist, in part, of roll-on/rolloff or "ro/ro" loading, which involves loading and un- loading of freight trailers on barges. "Yard hos- tlers," a type of tractor, are used to load the trail- ers onto barges which are specially equipped with rub rails which guide the trailers into place and secure them for transport. Yard hostlers also are used to unload barges by moving the trailers off the barges and into the terminal's "staging areas" where the trailers are picked up by outside drivers I In addition to TMT's Petty's Island. Pennsauken, New Jersey, termi- nal, the site where the disputed work is being performed, the Employer operates terminals at Jacksonville and Miami. Flonda, and Lake Charles, Louisiana. We note that the Employer introduced into evidence a copy of the Federal district court decision in the injunction proceeding which preceded the hearing in this case. The judge, in finding, inter alia, that TMT was an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, noted that during the year prior to the proceed- ing the Employer in the course of its business operations received more than $50,000 for performing services outside the State of Florida, where its principal office is located 319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hired by TMT's customers and driven to their final destination. All work at the terminal is performed by TMT's own employees who, at the time of the hearing, were in a single bargaining unit represent- ed by the SIU. Included in this unit are "drivers," "mechanics," and "inspectors." "Drivers" drive yard hostler tractors which move the freight trailers on and off barges docked at TMT's terminal. When there are no barges to be loaded or unloaded, the drivers move trailers and other equipment from one staging area to another in preparation for loading or unloading or for pickup by outside drivers who drive the trailers to their final destination. "Inspectors" examine the trailers upon their arrival or departure from the terminal for road worthiness, water tightness, and safety. "Mechanics" perform minor repairs to equipment returned to the terminal for export to Puerto Rico in damaged condition or which had been damaged during the northbound trip to Phila- delphia from Puerto Rico. Typical repairs include replacing lens covers, tires, or air lines. On February 4, 1982, prior to the commence- ment of actual loading operations at TMT's termi- nal, John Resta and John Mahoney, the business agent and the secretary/treasurer of Local 1242, approached Robert Randolph, one of TMT's man- agers. and, after identifying themselves as ILA rep- resentatives, told him that "the ILA had jurisdic- tion on the waterfront, that they had operated on the waterfront in Philadelphia." Resta further in- formed Randolph that, if TMT were going to oper- ate in the Philadelphia area, "the work would come under the jurisdiction of the ILA." On Feb- ruary 5, 1982, the first barge arrived at the termi- nal. The following day, Resta informed David M. Messer, another TMT manager, that "the ILA had been on the waterfront in the area for over 50 years doing this kind of work and that he could not allow TMT to come in and take the jobs away from them."2 On February 8, 1982, the ILA Locals began picketing near the entrance to the TMT terminal. ILA pickets carried signs which read: Trailer Marine Transport Corporation (TMT) is having work performed here under wages and working conditions which are below standards for this community thereby lowering working conditions in the area. It is undisputed that representatives of the ILA Locals had made no inquiries regarding wages or I At the hearing, Resta admitted having made the statements noted above. Further, he reiterated the ILA Locals' claim for the disputed work stating, "We always did the work in this river. We wanted to con- tinue to do so" working conditions for TMT employees prior to the commencement of the picketing. The picketing continued until February 22, 1982, when the Board obtained a temporary restraining order prohibiting picketing at the site from the Federal district court. On March 12, 1982, the district court granted a preliminary injunction pursuant to Section 10(1) of the Act, prohibiting all picketing until completion of the Board's processes. B. The Work in Dispute The disputed work involves the movement of trailers on and off oceangoing barges at Trailer Marine Transport Corporation's terminal, Petty's Island, Pennsauken, New Jersey, and the mainte- nance and inspection of said trailers.3 C. Contentions of the Parties The Employer contends that, based on the fac- tors of its collective-bargaining agreement with the SIU, relative skills, efficiency and economy of op- erations, job impact, and its assignment and prefer- ence, the work in dispute should be awarded to its employees represented by the SIU. At the hearing, the SIU also contended that, based on its collec- tive-bargaining agreement with the Employer, the work in dispute should be awarded to employees represented by it. The ILA Locals contend that ILA locals histori- cally have performed all loading and unloading work on the waterfront in the Philadelphia area. They assert that the collective-bargaining agree- ment between the Employer and the SIU is invalid and cannot support an award of the work in dis- pute to employees represented by the SIU. They further contend that, based on the factors of skills, area and industry practice, and efficiency of oper- ations, the work in dispute should be awarded to employees represented by them. 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 there is reasonable cause to believe that Section 8(b)(4)(D) has been violated, and that there is no agreed-upon method for the voluntary adjustment of the dispute. 3 The ILA Locals contend that the work in dispute involves the "load- ing and unloading of wheeled containers on and off oceangoing barges including the maintenance and checking and inspection of same." A wit- ness for the Employer described a container as a "mountable box on a chassis" which is removable from the chassis and wheels, and testified that the "box" of a trailer could not be detached from the wheels and chassis. While the accuracy of these descriptions is not disputed, the ILA Locals contend that the terms "trailer" and "container" are interchange- able. We find that the record establishes that the work in dispute is as set forth in the notice of hearing. 320 LOCAL 1332, LONGSHOREMEN'S ASSOCIATION As noted above, in several conversations with TMT managers, Resta claimed the work for em- ployeees represented by the ILA and stated that "he could not allow TMT to come in and take the jobs away from them." Further, the ILA Locals engaged in picketing TMT's premises from Febru- ary 8 to February 22, 1982. Although the picket signs referred to TMT employees' substandard wages and working conditions, there is nothing in the record to support a finding that the picketing had solely an area standards purpose, particularly since it is undisputed that the ILA Locals had no knowledge of the wages and working conditions of TMT's employees prior to the picketing. 4 Further- more, Resta made claims for the disputed work on behalf of the ILA Locals both prior to the picket- ing and during the hearing. Thus, we find that there exists reasonable cause to believe that the picketing by the ILA Locals was in furtherance of an object of forcing or requiring the Employer to assign the disputed work to employees represented by the ILA Locals. Finally, at the hearing the par- ties stipulated that the Federal district court judge, in granting the injunction, found reasonable cause to believe that Section 8(b)(4)(D) had been violat- ed, and counsel for the ILA Locals stated that such a stipulation should "satisfy the 10(k)." Based on the foregoing, and on the record as a whole, we find that reasonable cause exists to believe that a violation of Section 8(b)(4)(D) of the Act has oc- curred. The parties stipulated, and we find, that there exists no agreed-upon method for the voluntary ad- justment of the present dispute to which all parties are bound. Accordingly, we find that the dispute is properly before the Board for determination under Section 10(k) of the Act. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to various relevant factors. 5 The Board has held that its determination in a jurisdictional dispute is an act of judgment based on commonsense and experience reached by balancing those factors involved in a particular case. 6 The following factors are relevant in making the determination of the dispute before us: ' Essex County Building and Construction Trades Council and its Con- stituent Members. et al. (Index Construction Corporation), 243 NLRB 249, 252 (1979). b N.LR.B. v. Radio & Television Broadcast Engineers Union, Local 1212. International Brotherhood of Electrical Workers AFL-CIO lColum- bia Broadcasting System], 364 U.S. 573 (1961). 6 International Association of Machinists. Lodge NVo. 1743. AFL-CIO (J.A. Jones Construction Company). 135 NLRB 1402 (1962). 1. The Employer's assignment and preference The Employer assigned the work to its employ- ees represented by the SIU and presented testimo- ny that it has been satisfied with their performance. Further, at the hearing and in its brief, the Em- ployer has expressed its preference that the disput- ed work continue to be performed by such employ- ees. While we do not afford controlling weight to these factors, we find that they tend to favor an award of the disputed work to employees repre- sented by the SIU. 7 2. Area practice As noted above, the ILA Locals contend that employees represented by ILA locals historically have performed all loading and unloading work on the waterfront in the Philadelphia area. However, while it is undisputed that such work is performed in most instances by employees represented by ILA locals, the practice does not appear to be es- tablished except where companies belonging to the Philadelphia Maritime Trade Association (PMTA) are involved. It is undisputed that TMT is not a member of the PMTA. Thus, this factor is incon- clusive and does not favor an award to employees represented by either the ILA Locals or by the SIU.8 3. Relative skills The record shows that the skills required for the work in dispute are simple and can be quickly learned. Further, the parties stipulated that employ- ees represented by either the ILA Locals or by the SIU are well qualified to perform the disputed work. Consequently, we find that this factor is not helpful in our determination. 4. Job impact An award of the disputed work to employees represented by the ILA Locals would have a direct adverse impact on the employment status of employees now represented by the SIU since the latter group of employees now doing the work would have to be laid off to permit the hiring of 7 As noted above, the Employer and the SIU contend that the current SIU-TMT collective-bargaining agreement favors an award of the disput- ed work to employees represented by the SIU. The ILA Locals, howev- er, contend that the SIU-TMT contract is the product of unlawful recog- nition and is therefore invalid Currently, there is an 8(bX7XC) case pend- ing before the Board involving the parties herein in which the lawfulness of the Employer's recognition of the SlU is at issue Accordingly, and since there exist other factors here which favor an award of the work in dispute to employees represented by the SIU, we find it unnecessary to consider the SIU-TMT contract in determining the merits of the jurisdic- tional dispute in this proceeding. A See International Longshoremen' and Warehouvemen's Union and Local 4. International Longshoremen's and Warehousemen's Union :Alumi- num Company qf America), 158 NLRB 1024, 1029 (1966). 321 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees represented by the ILA Locals.9 The ILA Locals have presented no evidence that an award of the disputed work to employees repre- sented by the SIU would have an adverse impact on employees represented by the ILA Locals. Ac- cordingly, we find that the factor of job impact favors an award of the work in dispute to employ- ees represented by the SIU. 5. Economy and efficiency of operations In its brief, the Employer argues that it would be more economical for it to use its own employees to perform the disputed work offered no support for its argument. The ILA Locals asserted that use of its employees would be more efficient, but adduced no evidence in support of its contentions. Accord- ingly, we find that the factors of economy and effi- ciency of operations are not helpful in resolving the instant dispute. Conclusions Upon the record as a whole, and after full con- sideration of all relevant factors involved, we con- clude that the Employer's employees who are rep- resented by the SIU are entitled to perform the work in dispute. We reach this conclusion based on the facts that the Employer previously has assigned the work in dispute to employees represented by the SIU, and has been satisfied with their perform- ance and prefers to continue to assign the disputed work to such employees; that such assignment is not inconsistent with area practice; that employees represented by the SIU possess the requisite skills to perform the work in dispute; and that such an assignment results in a less drastic impact on em- ployees' jobs. 9 The ILA Locals contend that TMT's current work force would not be displaced if employees represented by the ILA Locals were awarded the disputed work; rather, the TMT's current employees would be divid- ed among the ILA Locals. However, the Employer correctly points out that a 10(k) hearing does not provide a means for awarding exclusive rep- resentation rights as between competing unions for a single group of em- ployees but, rather, in a 10(k) proceeding, work is awarded to defined groups of competing employees. In making these determinations, we are awarding the work in dispute to the Employer's employees who are represented by the SIU but not to that Union or its members. Our present determination is limited to the particular dispute 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 factors and the entire record in this proceeding, the National Labor Relations Board makes the following Determination of Dispute: 1. Employees of Trailer Marine Transport Cor- poration who are currently represented by United Industrial Workers, Service Transportation, Profes- sional and Government of North America, SIUNA-AGLIWD, AFL-CIO, are entitled to per- form the loading and unloading of trailers on and off oceangoing barges and the inspection and main- tenance of said trailers at Trailer Marine Transport Corporation's Petty's Island, Pennsauken, New Jersey, terminal. 2. Local 1332, International Longhoremen's As- sociation, AFL-CIO; Local 1291, International Longshoremen's Association, AFL-CIO; and Local 1242, International Longshoremen's Associ- ation, AFL-CIO, are not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force or require Trailer Marine Transport Corporation to assign the disputed work to employees represented by those labor organizations. 3. Within 10 days from the date of this Decision and Determination of Dispute, Local 1332, Interna- tional Longshoremen's Association, AFL-CIO; Local 1291, International Longshoremen's Associ- ation, AFL-CIO; and Local 1242, International Longshoremen's Association, AFL-CIO, shall notify the Regional Director for Region 4, in writ- ing, whether or not they will refrain from forcing or requiring Trailer Marine Transport Corporation by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disputed work in a manner in- consistent with the above determination. 322