Longshoremen ILWU Local 14 (Sierra Pacific Industries)

462 318 NLRB No. 55 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Longshoremen ILWU Local 14 (Sierra Pacific Industries), 314 NLRB 834 (1994). International Longshoremen’s and Warehousemen’s Union, Local 14 and Sierra Pacific Industries. Case 20–CD–696 August 24, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN Upon a charge filed February 11, 1994, by Sierra Pacific Industries (the Employer) and duly served on International Longshoremen’s and Warehousemen’s Union, Local 14 (the Respondent), the General Coun- sel of the National Labor Relations Board issued a complaint October 25, 1994, and an amended com- plaint April 20, 1995, against the Respondent, alleging that it had violated Section 8(b)(4)(i) and (ii)(D) of the National Labor Relations Act. The amended complaint alleges that since about No- vember 29, 1993, and January 11, 1994, the Respond- ent has demanded that the Employer assign the work of controlling the amount of wood chips transported on the conveyor belt and controlling the speed of the con- veyor belt, which is known as ‘‘button man’’ work, at the 14th Street Dock in Eureka, California (the dis- puted work), to employees who are members of or rep- resented by the Respondent, rather than to the Employ- er’s unrepresented employees. The amended complaint also alleges that from about February 10 to about March 15, 1994, the Respondent, in furtherance of its claim, picketed the Employer’s facility with signs stat- ing: SIERRA PACIFIC UNFAIR TO ILWU INTERNATIONAL LONGSHOREMEN’S & WAREHOUSEMEN’S UNION. The amended complaint further alleges that by such conduct the Respondent induced or encouraged indi- viduals employed by Sierra Pacific Industries and other persons engaged in commerce or in an industry affect- ing commerce to refuse to handle or work on goods and to refuse to perform services, and threatened, co- erced, and restrained the Employer and other persons engaged in commerce or in industries affecting com- merce. The amended complaint further alleges that the Respondent has failed and refused to comply with the Board’s August 24, 1994 Decision and Determination of Dispute,1 which awarded the disputed work to the Employer’s unrepresented employees, by failing to no- tify the Regional Director for Region 20 in writing that it will refrain from forcing the Employer by means proscribed by Section 8(b)(4)(D) to assign the disputed work in a manner inconsistent with the Board’s Order. On April 27, 1995, the Respondent filed an answer, admitting in part and denying in part the allegations in the amended complaint, denying the commission of any unfair labor practices, and asserting affirmative de- fenses. Specifically, the Respondent asserts as affirma- tive defenses that the facts of the underlying 10(k) de- termination do not fall within the scope of Sections 10(k) and 8(b)(4)(D), and that the Board’s Decision and Determination of Dispute in the underlying 10(k) proceeding is arbitrary and capricious. The Respond- ent’s answer admits its failure and refusal to notify the Regional Director in writing of its intention to comply with the Board’s determination, but asserts that it has failed and refused to do so in order to obtain court re- view of the Board’s Decision and Determination of Dispute. Furthermore, the Respondent admits in its an- swer that, since about November 29, 1993, and Janu- ary 11, 1994, it has demanded that the Employer as- sign the disputed work to employees represented by the Respondent rather than to the Employer’s unrepre- sented employees. As of May 16, 1995, the parties entered into a stipu- lation and moved to transfer the proceeding to the Board. The parties agreed that the stipulation and at- tached exhibits, including the charge in Case 20–CD– 696, the 10(k) hearing transcript and exhibits in Case 20–CD–696, the Decision and Determination of Dis- pute in Case 20–CD–696, the complaint, the answer to the complaint, the amended complaint, and the answer to the amended complaint, constitute the entire record in this case, and that no oral testimony is necessary or desired by any of the parties. They waived a hearing, the making of findings of fact and conclusions of law by an administrative law judge, and the issuance of an administrative law judge’s decision, and submitted the case for findings of fact, conclusions of law, and issuance of an appropriate order directly to the Board. On June 22, 1995, the Board approved the stipula- tion, made it a part of the record, and transferred to and continued the proceeding before the Board for the purpose of making findings of fact and conclusions of law, and for the issuance of a decision and order. Thereafter, the Respondent and the Employer filed briefs with the Board. The Board has considered the stipulation, the briefs, and the entire record, and makes the following FINDINGS OF FACT I. JURISDICTION The Employer, a California corporation with an of- fice and place of business in Eureka, California, in- cluding a dockside facility, is engaged in the manufac- ture of lumber and wood products. During the calendar year ending December 31, 1993, the Employer sold 463 LONGSHOREMEN ILWU LOCAL 14 (SIERRA PACIFIC INDUSTRIES) 2 All dates are in 1993 or early 1994, unless otherwise specified. In October and November, Andy Westfall, an owner of Westfall Stevedoring Co., and the Employer’s officials had numerous discus- sions concerning the possibility of the Employer’s subcontracting the chip-loading work to Westfall. Andy Westfall told the Employer’s officials that his employees, represented by Local 14, performed the chip-loading work across the bay at the Louisiana-Pacific Samoa fa- cility. He said that Local 14 was demanding the Employer’s chip- loading work. 3 Barges were loaded December 8, 18, and 28; January 2, 5, 10, 14, 21, 27, and 28; and February 3 and 11. and shipped from its Eureka, California facility goods valued in excess of $50,000 directly to points outside the State of California. 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. II. THE LABOR ORGANIZATION We find that International Longshoremen’s and Warehousemen’s Union, Local 14 is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts On November 29, 1993,2 when the first barge ar- rived at the 14th Street Dock to be loaded with wood chips, the Respondent picketed outside the gate to the dock with signs reading ‘‘Unfair to the ILWU.’’ In a meeting that day with Andy Westfall and Ed Bond, the Employer’s human resources manager and manager of corporate affairs, the Respondent’s officials said that loading chips was their jurisdiction and that the Re- spondent wanted the work. Each subsequent time the barges were loaded,3 the Respondent picketed outside the gate to the dock. On February 10, there were 30–40 pickets at the gate, some with signs saying ‘‘Sierra Pacific unfair to ILWU.’’ Additionally, there were four or five picket boats in the harbor, each with signs and two pickets on board. The picket boats interfered with tugboat and barge activity. Later that day, the Respondent gave Ed Bond a press release which stated in part, ‘‘[T]he work of loading the Barges is ours.’’ During the time period from October through Feb- ruary, the Employer’s officials met on numerous occa- sions with Andy Westfall and the Respondent’s offi- cials to discuss resolving the matter. During these meetings, the Respondent maintained its position that the work of loading wood chips onto barges was the Respondent’s work. The Employer maintained its posi- tion that the Respondent’s staffing requirements would make the Employer’s operation too expensive. On Feb- ruary 11, the Employer filed an 8(b)(4)(D) charge against the Respondent in Case 20–CD–696. On August 24, 1994, after conducting a hearing pur- suant to Section 10(k) of the Act, the Board issued its Decision and Determination of Dispute. The Board stated therein that it was undisputed that there was no agreed-upon method for voluntary adjustment of the work dispute. Further, it was undisputed that the Respondent pick- eted the Employer’s facility and the Board found that such picketing was in support of the Respondent’s de- mand for the button man work. The Board found that the Employer’s assignment of the button man work to its unrepresented employees was an original assign- ment of new work at a new location, and that the Re- spondent’s claim to the button man work was an at- tempt to acquire new work, not preserve old work. Thus, the Board concluded that there was reasonable cause to believe that Section 8(b)(4)(D) of the Act had been violated. Accordingly, the Board concluded that the dispute was properly before it for determination and, based on the factors of employer preference and practice, and economy and efficiency of operations, the Board awarded the work in dispute to the employees of Sierra Pacific Industries who are not represented by any labor organization. The Board also found, inter alia, that the Respondent was not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force Sierra Pacific Industries to assign the work to employees it rep- resented. The decision further directed the Respondent to notify the Regional Director for Region 20, in writ- ing, within 10 days, whether it would refrain from the proscribed action. The Respondent has failed and re- fused to comply with the Board’s Decision and Deter- mination of Dispute. B. Discussion The Respondent, in its brief, contends that the Board erred in the first instance by making a determination in the 10(k) proceeding because there is no evidence of competing claims between rival groups of employ- ees; rather, the Respondent argues, the dispute is be- tween the Respondent and the Employer. In that re- gard, the Respondent argues that the record contains no evidence that the Employer’s unrepresented em- ployees have any interest in performing the disputed work. The Respondent contends further that the dispute involved in this case is a work preservation con- troversy, which is outside the scope of Sections 10(k) and 8(b)(4)(D) of the Act, and that it engaged in law- ful picketing in furtherance of its work preservation claim. The Respondent asserts that the Employer ‘‘itself precipitated the instant dispute by diverting its wood chips and effectively reassigning traditional longshore work performed by Local 14 to its own em- ployees,’’ and that the Respondent has the right to pro- test this loss of work opportunities. Finally, the Re- spondent asserts that, even assuming the Board had ju- risdiction under Section 10(k) to make a determination, 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Longshoremen ILWU Local 6 (Golden Grain), 289 NLRB 1 fn. 3 (1988). 5 NLRB v. Plasterers Local 79, 404 U.S. 116, 122 fn. 10 (1971). 6 If 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ the Board’s decision on the merits of this dispute was arbitrary and capricious because every factor tradition- ally considered by the Board in determining such dis- putes favors awarding the button man work to employ- ees the Respondent represents. We find no merit in the Respondent’s contentions because they raise arguments previously considered and rejected by the Board. Because all material allega- tions either have been admitted by the Respondent in its answer, or have been decided previously by the Board, there are no matters outstanding for resolution. Having determined that the Respondent has not complied with the Board’s 10(k) determination, the merits of the complaint concerning whether the Re- spondent has engaged in conduct violative of Section 8(b)(4)(D) of the Act must be examined. We note that the Respondent’s failure to comply with the Board’s 10(k) determination does not per se constitute a viola- tion of Section 8(b)(4)(D). Rather, noncompliance merely triggers a complaint alleging that a violation of Section 8(b)(4)(D) has occurred.4 Once the complaint has issued ‘‘in the Section 8(b)(4)(D) proceeding itself, the Board must find by a preponderance of the evi- dence that the picketing union has violated Section 8(b)(4)(D).’’5 All the factors essential for a finding of such a violation are present in the instant case. As set forth above, the Respondent picketed the Employer; by such conduct, the Respondent induced and encouraged the Employer’s employees and employees of other per- sons engaged in commerce or in an industry affecting commerce to refuse to handle or work on goods and to refuse to perform services, and has threatened, co- erced, and restrained the Employer and other persons engaged in commerce or in an industry affecting com- merce; an object of the picketing was to force and re- quire the Employer to assign the button man work to members of the Respondent rather than to the Employ- er’s unrepresented employees; and the Respondent has not been certified by the Board as the collective-bar- gaining representative of the employees performing the button man work, nor has the Board issued any order determining that the Respondent is the bargaining rep- resentative of these employees. With respect to the Re- spondent’s ‘‘work preservation’’ defense, the Board re- jected that defense in its prior decision. Concededly, that decision was based on the standard of ‘‘reasonable cause to believe.’’ Based on the same facts, however we now reach the same conclusion under the standard of ‘‘preponderance of the evidence.’’ In sum, the evi- dence shows that the Respondent was seeking new work, not seeking to preserve old work. On the basis of the foregoing and the entire record in this proceed- ing, we find by a preponderance of the evidence that the Respondent violated Section 8(b)(4)(i) and (ii)(D) of the Act. CONCLUSIONS OF LAW 1. Sierra Pacific Industries is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent International Longshoremen’s and Warehousemen’s Union, Local 14 is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By picketing the Employer, an object of which was to force or require the Employer to assign the but- ton man work at the 14th Street Dock in Eureka, Cali- fornia, to employees represented by the Respondent, rather than to the Employer’s unrepresented employ- ees, the employees represented by the Respondent not being lawfully entitled to that work, the Respondent has engaged in unfair labor practices within the mean- ing of Section 8(b)(4)(i) and (ii)(D) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order it to cease and desist therefrom and to take affirmative actions designed to effectuate the purposes of the Act. ORDER The National Labor Relations Board orders that the Respondent, International Longshoremen’s and Ware- housemen’s Union, Local 14, Eureka, California, its officers, agents, and representatives, shall 1. Cease and desist from picketing Sierra Pacific In- dustries, the object of which is to force or require Si- erra Pacific Industries to assign the button man work at the 14th Street Dock in Eureka, California, to em- ployees represented by the Respondent, rather than to the Employer’s unrepresented employees, except inso- far as such conduct is permitted under Section 8(b)(4)(i) and (ii)(D) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its office and meeting halls copies of the attached notice marked ‘‘Appendix.’’6 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 465 LONGSHOREMEN ILWU LOCAL 14 (SIERRA PACIFIC INDUSTRIES) 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Sign and mail sufficient copies of the notice to the Regional Director for Region 20 for posting by Si- erra Pacific Industries, if it is willing, in all places where notices to its employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT picket Sierra Pacific Industries with an object of forcing or requiring Sierra Pacific Indus- tries to assign the button man work at the 14th Street Dock in Eureka, California, to employees represented by International Longshoremen’s and Warehousemen’s Union, Local 14, rather than to the unrepresented em- ployees of Sierra Pacific Industries, except insofar as such conduct is permitted under Section 8(b)(4)(i) and (ii)(D) of the Act. INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S UNION, LOCAL 14