Machinists District 160 Local 289 (SSA Marine)

MACHINISTS DISTRICT 160 LOCAL 289 (SSA MARINE) 347 NLRB No. 51 549 Association of Machinists and Aerospace Workers, District Lodge 160, Local Lodge 289, AFL–CIO and SSA Marine and International Longshore and Warehouse Union, Local 32, AFL–CIO. Case 19–CD–490 June 30, 2006 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND KIRSANOW This is a jurisdictional dispute proceeding under Sec- tion 10(k) of the National Labor Relations Act (the Act). The charge in this proceeding was filed by SSA Marine (the Employer) on December 5, 2005, alleging that Inter- national Association of Machinists and Aerospace Work- ers, District Lodge 160, Local Lodge 289, AFL–CIO (IAM) violated Section 8(b)(4)(D) of the Act by engag- ing in proscribed activity with an object of forcing the Employer to assign certain work to employees it repre- sents rather than to employees represented by Interna- tional Longshore and Warehouse Union, Local 32, AFL– CIO (ILWU). The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board affirms the hearing officer’s rulings, find- ing them free from prejudicial error. On the entire re- cord, the Board makes the following findings. I. JURISDICTION The parties stipulated that the Employer is a Washing- ton corporation, with an office and a place of business in the Port of Everett in Everett, Washington, where it is engaged in the business of cargo transportation and han- dling. They also stipulated that the Employer annually purchases and receives goods and services valued in ex- cess of $50,000 directly from suppliers located outside the State of Washington. The parties further stipulated, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Finally, the parties stipulated, and we find, that IAM and ILWU are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute For the last 40 years, the Employer and its predeces- sors have operated and managed terminal and stevedore operations at the Port of Everett, located on the Puget Sound in Washington. These operations have required the Employer to use a range of stevedoring equipment through the years. During the 1960s and 1970s, a water crane and several fork lifts were permanently stationed by the Employer at the Port of Everett. This perma- nently-stationed equipment was, at least in part, serviced and maintained by ILWU-represented workers based in Everett itself. As the port entered economic decline in the 1980s and 1990s, the permanently-stationed steve- doring equipment was removed. The Employer instead relied on equipment rotated from other ports on the Puget Sound to perform its operations in Everett. Those ma- chines were serviced and maintained by IAM- represented mechanics, who shuttled to Everett from Seattle and other ports around the Puget Sound. IAM- represented mechanics continue to be based in Seattle, where they receive assignments and training and have available a library of reference materials related to their work. In 1999, the Employer foresaw increased demand for stevedoring services in Everett. This expectation led to the introduction of new cargo-handling machinery at the Employer’s Everett facility: a 100-ton Gottwald mobile harbor crane and two reach stackers.1 The evidence does not indicate that the Employer employed any ILWU- represented employees qualified to service and maintain the new equipment at the time it was put into use. The Employer assigned the service and maintenance of these machines to its IAM-represented mechanics. Two of these IAM-represented mechanics were sent to Germany for manufacturer-sponsored training on the repair and maintenance of the Gottwald crane. This training lasted 2 to 3 weeks and primarily involved going over the manuals specific to the Gottwald crane. The evidence indicates that the training received by IAM-represented employees on the Gottwald cranes was for the limited purpose of familiarizing them with the contents of spe- cific manuals, and not teaching the basic skills needed for maintenance and repair work. Pursuant to a grievance filed in 2000, ILWU argued that under its collective-bargaining agreement with the Employer, the repair and maintenance of the new Everett-based equipment should properly have been as- signed to ILWU-represented employees. This claim went to arbitration, and the arbitrator ruled in early 2001 that the maintenance and repair work on the new equip- ment should be assigned to ILWU. But because there were no available ILWU-represented workers able to perform the work, the Employer instead began paying for two ILWU-represented workers to attend community college for basic coursework. In 2005, at about the time these ILWU-represented employees had completed their coursework, IAM received word from the Employer that the work it had been performing might be reassigned to 1 Reach stackers are vehicles used for lifting and stacking shipping containers. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 550 ILWU. In response, IAM sent a letter threatening to take “all means necessary” to prevent the Employer from transferring the disputed work, and told the Employer that if the work were transferred, IAM would immedi- ately picket the Everett facility. B. Work in Dispute The work in dispute is the maintenance and repair work on SSA Marine’s Everett-based stevedoring equipment. C. Contentions of the Parties ILWU moves to quash the notice of hearing, arguing that the heart of the dispute is a work preservation claim by ILWU-represented workers at Everett, not a jurisdic- tional dispute contemplated by Section 8(b)(4)(D) and Section 10(k) of the Act. ILWU contends that the Em- ployer created this dispute by assigning service and maintenance of the new crane and reach stackers to IAM- represented mechanics in violation of the SSA/ILWU collective-bargaining agreement. Therefore, ILWU con- tinues, the Employer is not innocently caught between two rival unions claiming the same work and should not be able to obtain relief under Section 10(k). In the alter- native, if the Board declines to quash the notice of hear- ing, ILWU requests that the mechanics it represents be awarded the work on the basis of its collective- bargaining agreement with the Employer, area and indus- try practice, the 2001 arbitral award referenced above, and efficiency. The Employer and IAM argue to the contrary that this is a bona fide jurisdictional dispute and that therefore the notice of hearing should not be quashed. They argue that the Board should award the work to IAM-represented mechanics based on their collective-bargaining agree- ment, the history of the work in dispute, employer pref- erence and past practice, area practice, skills and training, and efficiency. D. Applicability of the Statute Before the Board may proceed with a determination of a dispute pursuant to Section 10(k) of the Act, it must be satisfied that (1) there are competing claims to the work; (2) there is reasonable cause to believe that Section 8(b)(4)(D) has been violated; and (3) the parties have not agreed on a method for the voluntary adjustment of the dispute. Carpenters Local 275 (Lymo Construction Co.), 334 NLRB 422, 423 (2001); Teamsters Local 259 (Globe Newspaper Co.), 327 NLRB 619, 622 (1999); and La- borers Local 113 (Super Excavators), 327 NLRB 113, 114 (1998). Evaluating the situation at the time the alleged pro- scribed activity occurred in 2005, we find that these re- quirements have been met. There are competing claims to the work because IAM and ILWU both claim that re- pair and maintenance of the Employer’s Everett-based equipment should be assigned to employees they repre- sent. As to the second requirement, to find reasonable cause to believe that Section 8(b)(4)(D) has been vio- lated, we must find evidence that a union has used pro- scribed means to enforce its claim to the work in dispute, and that it had the proscribed objective of forcing an em- ployer to assign the work to one group of employees rather than to another group of employees. See, e.g., Stage Employees IATSE Local 39 (Shepard Exposition Sevices), 337 NLRB 721, 723 (2002). We find this re- quirement is met: IAM admits that it threatened to picket if the Employer assigned the disputed work to ILWU-represented mechanics. Finally, the third re- quirement has also been met: no party has presented evidence of a method agreed upon by all parties to re- solve this dispute voluntarily. We must also address ILWU’s contention that this dispute is at its core about work preservation and that it is therefore not a jurisdictional dispute. In distinguishing between jurisdictional disputes and work preservation disputes, the Board has held that where the employer has unilaterally transferred the disputed work away from the group that had been performing it, the Board will not afford the employer the use of a 10(k) proceeding be- cause the dispute is of the employer’s own making. See, e.g., Machinists District 190 (SSA Terminal), 344 NLRB 1018 (2005) (Board quashed 10(k) notice of hearing where employer “by its own unilateral actions” of as- signing work exclusively performed by one group of workers to another group “created a work preservation dispute”); Seafarers (Recon Refractory & Construction), 339 NLRB 825 (2003) (Board quashed 10(k) proceeding where work performed for a decade by one group of em- ployees was suddenly shifted by employer to another group); Teamsters Local 107 (Safeway Stores), 134 NLRB 1320 (1961) (no jurisdictional dispute where em- ployer unilaterally transferred work and union picketed in an effort to preserve contractual work its members had traditionally performed). In all of these cases, the Board quashed the notice of hearing because the employers created the very dispute they were asking the Board to resolve through 10(k) proceedings. This case, however, differs from those work preserva- tion cases because the Employer did not create the dis- pute by re-assigning existing work. In coming to this conclusion, we look to the “‘real nature and origin of the dispute’ in determining whether a jurisdictional dispute exists.” SSA Terminal, supra, 344 NLRB 1018, 1020 (quoting Teamsters Local 578 (USCP-Wesco), 280 MACHINISTS DISTRICT 160 LOCAL 289 (SSA MARINE) 551 NLRB 818, 820 (1986), affd. sub nom. USCP-Wesco, Inc. v. NLRB, 827 F.2d 581 (9th Cir. 1987)). The genesis of this work dispute lies in the Employer’s introduction of new stevedoring equipment to the Port of Everett in 2000, specifically the Gottwald crane and two reach stackers. It is undisputed that ILWU-represented employees had not performed any substantial service and maintenance work on Everett-based stevedoring equip- ment for almost two decades prior to 2000. In fact, ILWU-represented workers stationed at Everett were not qualified to perform service and maintenance work on the Gottwald crane at the time it was installed at the Port of Everett.2 Thus, unlike in the work preservation cases cited above, the work in dispute here was, for all practi- cal purposes, new work. When the Employer assigned this work to its IAM-represented employees, it was not unilaterally transferring work away from workers who had been performing the work, or supplanting one group of employees with another, and therefore the Employer was not creating a dispute. Accordingly, we find that this is not a work preservation dispute, but instead a ju- risdictional dispute. Based on the foregoing, we find that there is reason- able cause to believe that Section 8(b)(4)(D) has been violated. Having already also determined that there are competing claims to the work and no agreed-upon method to adjust the dispute voluntarily, we therefore find that the dispute is properly before the Board for de- termination under Section 10(k), and we deny ILWU’s motion to quash. E. Merits of the Dispute Section 10(k) requires the Board to make an affirma- tive award of disputed work after considering various factors. NLRB v. Electrical Workers Local 1212 (Co- lumbia Broadcasting), 364 U.S. 573 (1961). The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and ex- perience, reached by balancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402, 1410–1411 (1962). 2 ILWU has argued that mechanics it represented in 2000 did work at the Port of Everett for other companies, but it has not established that these workers were available to the Employer to service and maintain the new machines. As explained above, although 1 year after the work was originally assigned, ILWU was awarded the work by an arbitrator, there were apparently no ILWU-represented mechanics qualified to do the work at that time, and the Employer sent ILWU-represented work- ers to community college for basic mechanical education. Those work- ers attended classes part-time for approximately 3-1/2 years starting in 2001. These mechanics were not ready to begin on-the-job training until sometime in late 2004 or early 2005. The following factors are relevant in making the de- termination of this dispute. 1. Certifications and collective-bargaining agreements The Employer is currently a party to collective- bargaining agreements with both ILWU and IAM. SSA employees represented by IAM are currently working under a collective-bargaining agreement, with a term from July 1, 2002, until April 1, 2006, stating in relevant part that “IAM-represented employees will maintain and repair all equipment owned or leased by SSA in the Puget Sound area.”3 The Pacific Coast Longshore Con- tract Document (PCLCD), a multiemployer agreement with a term from July 1, 2002, through July 1, 2008, governs the work of SSA employees at Everett repre- sented by ILWU. The PCLCD provides, in section 1.71, that the contract “applies to the maintenance and repair of all stevedore cargo handling equipment.” The PCLCD also contains a work preservation clause with one limitation: Section 1.8 of the PCLCD states work performed by others prior to July 1978 may be subcon- tracted out. Both unions have contractual claims which arguably give them a claim to the work in dispute. We therefore find this factor does not favor awarding the work in dis- pute to employees represented by either union.4 2. Employer preference and past practice The Employer has made it clear that it prefers to assign the work to IAM-represented mechanics. The Em- ployer’s maintenance manager, Darrell Stephens, testi- fied that this “preference has been clear since the ‘50s.” As to the specific work in dispute, past practice favors the use of IAM-represented mechanics. For the past 5 years, all of the work in dispute has been performed by employees represented by IAM. Although ILWU- represented workers may have done similar work in the 1960s and 1970s, the recent past practice is more rele- vant in resolving a current jurisdictional dispute. We find that both employer preference and past prac- tice favor awarding the work in dispute to employees represented by IAM. 3 This language appeared for the first time in the 2002 contract. 4 The evidence that ILWU obtained an arbitration award in 2001 in- terpreting identical language in its current bargaining agreement in a manner consistent with ILWU’s claim to the work does not materially affect our conclusion that both unions have mutually offsetting contrac- tual claims to the work. In addition, the Board has given little or no weight to arbitration awards when one of the parties to the jurisdic- tional dispute was not bound thereby. Teamsters Local 179 (USF Holland, Inc.), 334 NLRB 362, 364–365 (2001); Teamsters Local 952 (Rockwell International), 275 NLRB 611, 614 (1985). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 552 3. Area and industry practice Both IAM and ILWU mechanics perform similar re- pair and maintenance work on the West Coast. On the Puget Sound, much of this work is done by IAM- represented mechanics, although ILWU is responsible for repair and maintenance in at least one Puget Sound facility. The evidence does not establish that this factor favors one union’s claim over the other. 4. Relative skills As of 2005 when the picketing threat was made, the IAM-represented mechanics had at least 5 years’ experi- ence working on the very machinery whose maintenance requirements form the core of this dispute. In 2000, two of those mechanics participated in training sponsored by the crane manufacturer, in which they were familiarized with the contents of operating manuals for the new Everett-based equipment. The evidence also shows that IAM-represented mechanics are provided with an array of educational and reference materials to aid them in updating their skills. ILWU has not shown a comparable level of skill and training. At best, the evidence shows that two ILWU-represented employees are qualified to begin on-the-job training in the service and maintenance of the new machinery. We thus find that this factor fa- vors awarding the work in dispute to IAM-represented employees. 5. Economy and efficiency of operations ILWU argues that it is more economical and efficient to use IWLU-represented mechanics, who would be based at Everett, rather than IAM-represented mechanics who must commute from Seattle. IAM argues that it is more economical and efficient to use IAM-represented employees because they do not need any additional on- the-job training. We find that this factor does not favor awarding the work in dispute to employees represented by either union. Conclusion After considering all the relevant factors, we conclude that employees represented by IAM are entitled to per- form the work in dispute. We reach this conclusion rely- ing on employer preference, past practice, and relative skills. In making this determination, we are awarding the work to employees represented by IAM, not to the Union or its members. The determination is limited to the con- troversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the follow- ing Determination of Dispute: Employees of SSA Marine represented by Interna- tional Association of Machinists and Aerospace Work- ers, District Lodge 160, Local Lodge 289, are entitled to perform maintenance and repair work on SSA Marine’s Everett-based stevedoring equipment.