International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local Union 158, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America i and Holt Cargo Systems, Inc. and International Long- shoremen's Association Local 1242, Local 1332, and Local 1566, AFL-CIO Warehouse Employees Union Local 169, a/w Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Re- frigerated Distribution Center, Inc. and Interna- tional Longshoremen's Association Local 1242, Local 1332, and Local 1566, AFL-CIO. Cases 4-CD-641 and 4-CD-642 31 January 1986 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS JOHANSEN, BABSON, AND STEPHENS This is a proceeding under Section 10(k) of the National Labor Relations Act. On 31 December 1984, Employer Refrigerated Distribution Center, Inc. (RDC) filed a charge in Case 4-CD-642 alleg- ing that Respondent Warehouse Employees Union Local 169,' a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters Local 169), violated Section 8(b)(4)(D) of the Act by engaging in proscribed conduct with an object of forcing RDC to assign certain work to employees it represents rather than employees represented by International Longshore- men's Association, Local 1242, Local 1332, and Local 1566, AFL-CIO (ILA Locals 1242, 1332, and 1566). Also on 31 December 1984, Employer Holt Cargo Systems, Inc. (Holt) filed a charge al- leging that Teamsters Local Union 158, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters Local 158), violated Section 8(b)(4)(D) of the Act by engaging in proscribed conduct with an object of forcing Holt to assign certain work to employ- ees it represents rather than employees represented by ILA Locals 1242, 1332,, and 1566. An order consolidating cases and notice of hearing issued 23 January 1985. The hearing was held 5 and 6 March 1985 before Hearing Officer Michael P. Horne. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board finds the hearing officer's rulings free from prejudicial error. On the entire record, the Board makes the following findings. 1 The name of this Union appears as amended at the hearing 278 NLRB No. 51 I. JURISDICTION Employer RDC, a Pennsylvania corporation, op- erates a cold storage warehouse at 8 East Oregon Avenue, Philadelphia, Pennsylvania. During the, 12-month period preceding the hearing, it received gross revenues in excess of $500,000 and provided services valued at more than $50,000 to customers located outside the Commonwealth of Pennsylva- nia. Employer Holt, a Delaware corporation, is en- gaged in warehousing, trucking, and stevedoring at its facility in Gloucester City, New Jersey. During the 12-month period preceding the hearing, it re- ceived gross revenues in excess of $500,000 and provided services valued at more than $50,000 to customers located outside the State of New Jersey. Based on the above stipulated facts, we find that the Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties also stipulated, and we find, that Teamsters Local 169, Teamsters Local 158, and ILA Locals 1242, 1332, and 1566 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute RDC began operating the cold storage ware- house at East Oregon Avenue in 1981. RDC signed a contract with Teamsters Local 169 recognizing it as the bargaining representative of the warehouse employees. The warehouse contains a "defrost room" where imported frozen meat is defrosted for inspection by USDA inspectors. RDC subcontract- ed the work of defrosting meat for government in- spection to Holt. Holt used employees represented by ILA Locals 1242, 1332, and 1566 to do the de- frost work. In late 1983, RDC decided' to use its own warehouse employees and canceled the sub- contract with Holt. The ILA Locals formerly 'as- sisting in frozen meat inspection immediately start- ed picketing RDC, demanding the defrost room work. At the same time, the ILA requested arbitra- tion of whether RDC's cancellation of the subcon- tract violated the ILA's collectivebargaining agreement with Holt, alleging that Holt and RDC are alter egos. The arbitrator's award, to which only Holt and the ILA were parties, issued 1 November 1984. The award concluded that the cancellation of the subcontract was not an "arms length transaction" and that the Holt-ILA agreement and past practice of the parties established that ILA labor is entitled to assist in the inspection at RDC of all frozen meat coming in over the pier at the Holt Marine Terminal. TEAMSTERS LOCAL 158 (HOLT CARGO) The ILA resumed picketing at RDC after the ar- bitrator's award issued. By letter dated 20 Decem- ber 1984, Teamsters Local 169 informed RDC that if it implemented the arbitrator's award and took any part of the defrost room work away from the Teamsters unit, Local 169 might well picket or strike. Meanwhile, Holt began construction of a defrost room in its off-the-pier warehouse complex in Gloucester City. (The warehouse complex is sepa- rated from the Holt Marine Terminal by a wall.) The defrost room was scheduled to be completed in April 1985. Holt has long recognized Teamsters Local 158 as the representative of its employees in the warehouse complex and has a collective-bar- gaining agreement with Local 158 covering these employees. By letter dated 6 November 1984, the ILA in- formed Holt that ILA Locals 1242, 1332, and 1566 claimed the work of defrost and meat inspection to be performed in the new defrost room. By letter dated 20 December 1984, Teamsters Local 158 in- formed Holt that if the defrost work in the new fa- cility were not assigned to Local, 158, it would take "all necessary legal action against [Holt], including a strike." B. Work in Dispute The work in dispute consists of the unpackaging, defrosting, inspection, and repackaging of merchan- dise in the defrost room of Holt's Gloucester City, New Jersey facility and in the defrost room at RDC's 8 East Oregon Avenue, Pennsylvania facili- ty. C. Contentions of the Parties Holt and RDC contend that the work in dispute belongs to employees represented by Locals 158 and 169 of the Teamsters because it is an extension of the warehousing functions they now perform under the Teamsters contracts with RDC and Holt and that the factors usually considered by the Board in resolving jurisdictional disputes without question require the award of the work to employ- ees represented by these two Unions. Teamsters Local 158 adds that its members now perform work in connection with the inspection of fruit, butter, and other commodities under its contract with Holt similar to the work in dispute . Teamsters Local 169 argues that article I of its contract with RDC gives Local 169-represented employees the right to perform the work in dispute and stresses that RDC does not have a contract with the ILA. It emphasizes that the arbitrator 's award in favor of the ILA is not controlling because Local 169 was not a party to it and that Local 169-represented 361 employees can perform the disputed work more ef- ficiently and economically than the ILA. Finally, the ILA contends generally that the arbitrator's award establishes that employees represented by Locals 1242, 1332, and 1566 have a contractual right to the work in dispute at both Holt and RDC, that Holt's contention that the ILA cannot perform defrost work economically is groundless, and that experience and common sense favor an award of the work to the employees represented by the ILA. The ILA also contends that the cur- rent area practice of using Teamsters for defrost work should be disregarded and that the hearing officer erred in excluding certain evidence con- cerning the applicability of the ILA contract to RDC. These contentions are set out more fully below. D. Applicability of the Statute Before the Board may proceed under Section 10(k) of the Act to determine a jurisdictional dis- pute, it must find that there is reasonable cause to believe Section 8(b)(4)(D) has been violated and that there is no agreed-upon method for resolving the dispute binding on all the parties. It is undisputed that by its 20 December 1984 letter Teamsters Local 169 informed RDC that it would take "appropriate action . . . immediately" if RDC took any part of the defrost work away from the Teamsters unit and gave it to ILA labor, in compliance with the arbitrator's award. This action, the letter continued, "may very well" in- clude picketing or a, strike. It is also undisputed that by its 20 December 1984 letter Teamsters Local 158 informed Holt that in its view compli- ance with the ILA's demand for the new defrost room work would breach the Teamsters contract, and stated unequivocally that "in the event that the work is not assigned to us, we intend to take all necessary legal action against you including a strike." Based on the foregoing, we conclude that there is reasonable cause to believe that Teamsters Local 169 and Teamsters Local 158 have violated Section 8(b)(4)(D) of the Act. See Typographical Union 6 (New York Times), 225 NLRB 1311 (1976) (expression of, "readiness to strike" sufficient); Li- thographers, Local 24-P (Beacon Journal), 185 NLRB 464 (1970) (union in possession of work threatened to resist, reassignment by "appropriate means, including a strike"). In addition, the parties have stipulated that there is no mutually agreed-upon method for voluntarily resolving this dispute. Accordingly, we, conclude that the dispute is properly before the Board for determination. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors. NLRB v. Electrical Workers IBEW Local 1212 (Columbia 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 experience, reached by bal- ancing the factors involved in a particular case. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Employer preference RDC and Holt prefer to use their warehouse em- ployees, represented by the Teamsters, to assist in frozen meat inspection rather than employees rep- resented by the ILA. Employer preference there- fore favors an award of the work to the employees represented by the Teamsters. 2. Employer past practice RDC was formed in 1981 to operate the defrost room and warehouse at East Oregon Avenue. RDC officials testified that the defrost work was initially subcontracted to ILA labor because the ILA had had experience doing this work at the site under a subcontract with the prior owner, but that this arrangement would last only until RDC learned the defrost business and felt capable of doing the work with its own employees. ILA labor performed the defrost work for approximately 18 months. In view of the provisional nature and rela- tively short duration of the employment of ILA labor in the defrost room, we are unable to find that it establishes a "past practice" in favor of the ILA. Rather, we find that RDC's past practice does not favor an award 'of the work to employees represented by either ILA or the Teamsters. Holt, of course, has no past practice in that it had not opened its new defrost room at the time of the hearing and has never before operated a defrost room. 3. Area practice Currently, there are no defrost rooms in the Port of Philadelphia or the entire Delaware Valley manned by ILA labor. The record reveals that unionized defrost rooms in the area are now oper- ated by employees represented by Teamsters. The ILA argues that current area practice should not be counted against an award of the work to ILA employees, however. It attests without contradic- tion that prior to 1979, there were no inland de- . I frost rooms and the portside facilities were operat- 12, 1979) (order granting injunction), vacated (E D Pa Mar 8, 1983) ed exclusively by ILA labor. It points out that in 1979 the ILA's container rules were enjoined 2 thus preventing the ILA from preserving the de- frost room work. The ILA contends that it would be inequitable to count ILA's relatively recent loss of defrost work resulting from the container in- junction against an award to ILA labor because the Supreme Court has now held that the container rules are lawful and may be enforced. NLRB v. Longshoremen ILA, 105 S.Ct. 3045 (1985). We find merit in this contention. Accordingly, we will not count the current area practice against an award to the employees represented by the ILA, but will view it as a neutral factor favoring neither ILA nor Teamsters labor. 4. Economy and efficiency Prior to RDC's cancellation of the subcontract with Holt, meat inspection was performed as fol- lows. The palletized boxes of meat were trucked to RDC and laid out on the warehouse floor by Teamsters labor. Meat to be inspected was moved by forklift to the entrance of the defrost room by employees represented by Teamsters Local 169. An employee from ILA Local 1332 loaded the boxes onto a conveyor leading into the defrost room. Employees represented by ILA Local 1566 took the boxes off the conveyor and removed the slabs of frozen meat. An employee represented by ILA Local 1566 cut the frozen meat into 2-inch thick slices on a bandsaw. An ILA Local 1566 employee put the slices in plastic bags and immersed them in a tub of hot water. When the meat defrosted, an ILA Local 1566 employee took the meat from the bags, put each slice in a stainless steel tray, and set out the trays for the inspector. Once the meat was inspected and approved, ILA Local 1566 employ- ees put it back in the boxes, rebanded the boxes for shipment, and stamped the entire lot with a USDA stamp. The USDA inspector designated certain lots of meat "skip" lots. These lots were stamped but not inspected in the defrost 'room. During this process, an employee represented by ILA Local 1242 kept track of the lots being inspected and filled out the necessary paperwork. Once inspected, the meat was put in storage at RDC or loaded on trucks by Teamsters Local 169 employees. The entire inspection process at RDC is now performed by the Teamsters warehouse employees. The in- spection process at Holt will be the same as it is at RDC. The record supports the Employers' contention that the defrost work can be done more efficiently 2 Hirsch v Longshoremen ILA Local 1242 No 79-2022 (E D Pa June TEAMSTERS LOCAL 158 (HOLT CARGO) 363 and economically by the warehouse employees rep- resented by the Teamsters than by employees rep- resented by the ILA. Meat inspection is not contin- uous. The Employers must tell the ILA that a de- frost crew is needed on the night before a contain- er of meat is due. The Employers' witnesses testi- fied without contradiction that each of the three ILA locals claiming the work will not "turn to" without the other two. The ILA crew therefore must-consist of at least three employees. The ILA crew arrives at 8 a.m. and is guaranteed a minimum of 4 hours regardless of the volume of work. The ILA foreman who worked in the defrost room at RDC corroborated the Employers' assertion that at times, when fewer containers arrive than expected or the meat does not arrive promptly at 8 a.m., the ILA crew is left with idle time. On the other hand, the warehouse employees represented by the Teamsters can be cross-utilized. The Employers es- timate that'the defrost work can be done with one to four employees, depending on the ratio of "skip" to inspected lots. Warehouse employees can be taken from their regular duties whenever- a contain- er of meat arrives and can be returned to their jobs loading, unloading, storing, and retrieving goods whenever toe inspection is finished. RDC officials testified that the inability to use ILA labor effi- ciently for defrost work has resulted in a cost to RDC per container of meat greater than the han- dling price RDC is able to charge the importer. Accordingly, we find that the factors of efficiency and economy favor an award of the defrost work to the warehouse employees represented by Team- sters Local 169 and Teamsters Local 158. 5. Relative skills As indicated above, meat inspection assistance does not require special, training or expertise. Em- ployees furnished by ILA Locals 1242, 1332, and 1566 have been doing this work for years. The warehouse unit represented by Teamsters Local 169 has also been doing this work at RDC since late 1983. The president of Holt testified without contradiction that the employees represented by Teamsters Local 158 could use their present skills to do defrost work. These employees now assist in USDA fruit inspection. Fruit to be inspected is treated the same way, as meat to be inspected except that it is not sliced on a band saw. Since both ILA and Teamsters labor is capable of doing the defrost work, the factor of relative skills does not favor an award to employees represented by either Union over employees represented by the other. 6. Collective-bargaining agreements Neither the RDC-Teamsters Local 169 contract nor the Holt-Teamsters Local 158 contract specifi- cally covers the work in dispute. Article I of the Teamsters Local 169 contract states that RDC rec- ognizes Local 169 as the bargaining agent "for the classifications of employees set forth in Schedule `A' . . . at the . . . facility located at Oregon and Delaware Avenues." Schedule A lists various clas- sifications including forklift operator/checker and warehouseman. Article II of the Teamsters Local 158 contract states that Holt recognizes Local 158 as the bargaining representative of "the bargaining unit which shall include those categories of em- ployees specified in Exhibit 'A."' Exhibit A lists various classifications including forklift operator, conveyor loader, and warehouseman. The Holt-ILA contract, on the other hand, does specifically mention the work in dispute. Article 1 of the ILA Local 1566 agreement provides that the work covered by the agreement shall include "(b) . . . stamping . . . cargo" and "(c) .. . assist[ing] in the inspection of frozen meat." Article 42 of the same agreement lists the number of men to be em- ployed when stamping various amounts of "frozen or cooked beef or any other commodity in contain- ers." A clause entitled "Jurisdiction-Work" in the ILA Local 1242 agreement gives Local 1242 exclu- sive jurisdiction over all clerking and checking of freight, including vans, containers, and pallets, at marine piers and terminals. The ILA Local 1332 agreement does not specifically mention defrost work. The preamble of that agreement states, inter alia, that it covers "work pertaining to sorting, piling, palletizing, and refrigerated warehouses at the piers and pier terminal." As outlined above, however, ILA defrost crews have traditionally consisted of members of all three locals. Each agreement also contains a clause stating that: Employer-[signatories] and, to the extent legal- ly possible, their related and affiliated compa- nies . . . will not directly perform work done on a pier or terminal or contract out such work which historically and regularly has been and currently is performed by employees covered by this Agreement . .. unless such work on such pier or terminal is performed by employees covered by I.L.A. agreements. The ILA asserts that the 1 November 1984 arbi- trator's award establishes that the ILA agreements entitle the employees represented by ILA Locals 1242, 1332, and 1566 to the disputed work. The ar- bitrator cited the above clause appearing in all three contracts, and concluded that "by practice, 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the parties have extended the definition of `pier or terminal' to encompass the RDC defrost room." He added, however, that a critical component of his conclusion that the ILA's claim had validity was the "pipeline aspect" of the inspection process, i.e., that the meat was received at the Holt Marine Terminal, sent to RDC, and inspected, all by ILA- represented employees. He therefore concluded that RDC was bound to use ILA labor to inspect meat unloaded by the ILA at the Holt pier but found "no basis . . . to go beyond that." , RDC is not a signatory to the ILA contract. At the hearing, the ILA tried to present evidence that Holt and RDC are alter egos in order to show that the contract nevertheless applies to RDC as well as Holt. The hearing officer excluded this evidence on the ground that it was irrelevant. The ILA asserts that the hearing officer committed prejudicial error in doing so. We conclude that the ILA agreements are enti- tled to little weight. Assuming arguendo they apply to both Employers, the agreements as interpreted by the arbitrator entitle employees represented by the ILA to only some of the disputed work. The Employers' witnesses testified without contradic- tion that only 15 percent of the meat inspected at RDC arrives through the Holt Marine Terminal. Meat also arrives at RDC and the Holt warehouse complex by rail from California ports and other land-based locations as well as by Teamsters or nonunion truck from other Port of Philadelphia marine terminals. ILA labor has never been used in the Holt warehouse complex, and meat arriving by rail at both RDC and Holt is unloaded by Team- sters. Conclusions After considering all the relevant factors, we conclude that employees represented by Teamsters Local 169 and Teamsters Local 158 are entitled to perform the work in dispute. We reach this conclu- sion relying on the Employers' preference and effi- ciency and economy of operation, which outweight the contractual claim to the work asserted by ILA Locals 1242, 1332, and 1566. In making this deter- mination, we are awarding the work to employees represented by Teamsters Local 169 and Teamsters Local 158, not to those Unions or their members. The determination is limited to the controversy that gave rise to this proceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. Employees of Refrigerated Distribution Center, Inc. represented by Warehouse Employees Union Local 169, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America are entitled to perform unpacking, de- frosting, inspection, and repackaging of merchan- dise in the defrost room of RDC's 8 East Oregon Avenue, Philadelphia, Pennsylvania facility. Em- ployees of Holt Cargo Systems, Inc. represented by Teamsters Local Union 158, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America are entitled to per- form unpackaging, defrosting, inspection, and re- packaging of merchandise in the defrost room of Holt's Gloucester City, New Jersey facility.