Longshoremen Ila Local 799 (Atlantic Cement)

LONGSHOREMEN ILA LOCAL 799 (ATLANTIC CEMENT) International Longshoremen's Association, Local 799, AFL-CIO and Atlantic Cement Company, Inc. Case 1-CD-744 30 May 1986 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS DENNIS, JOHANSEN, AND BABSON The charge in this Section 10(k) proceeding was filed 10 May 19851 by the Employer, alleging that the Respondent, International Longshoremen's As- sociation, Local 799, AFL-CIO (Local 799), vio- lated Section 8(b)(4)(D) of the National Labor Re- lations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to an unrepresented employee employed by the Employ- er. The hearing was held 14 and 15 August before Hearing Officer Joseph F. Griffin. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board affirms the hearing officer 's rulings, finding them free from prejudicial error. On the entire record, the Board makes the following find- ings. I. JURISDICTION The Employer, a Delaware corporation, is en- gaged in the sale and distribution of cement at its facility in Boston, Massachusetts, where it annually receives goods and materials valued in excess of $50,000 directly from points located outside the Commonwealth of Massachusetts, and annually ships goods and materials valued in excess of $50,000 directly to points located outside the Com- monwealth of Massachusetts. We find the Employ- er is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 799 is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute The Employer manufactures cement in Ravena, New York, and transports it by oceangoing barge to its distribution facility in Boston, Massachusetts. The distribution facility or terminal consists of eight cement storage silos and several office build- ings located on the banks of the Mystic River. A dock at the river's edge is connected to the termi- 1 All dates are in 1985 unless otherwise indicated 239 nal by a pipeline composed of four individual pipes. The pipeline runs from the storage silos along the ground to the dock, where each of the four pipes is connected to a high pressure hose, which in turn is connected to pipes on the barge upon its arrival at the dock. The cement is pumped from the barge pipes through the barge hoses to the ground pipeline and into the storage silos. Employees represented by Teamsters Local 25 operate the cement distribution system within the terminal. A six-employee barge crew, represented by ILA Local 333, works off the barge when it ar- rives at the dock. James Langan and Mason Hens- ton, longshoremen represented by Local 799, hooked the dockside hoses to the barge hoses, at least until March 1985. They were employed on a casual basis only when a barge arrived to deliver cement. Until March 1985, the cement unloading was performed as follows: each barge carried a set of four hoses used to connect the barge discharge pipes to the dockside pipes. The barge crew pre- pared the barge hoses for delivery by a series of maneuvers, not involved in the present dispute, which allowed the hoses to be "caught" by the two Local 799 hosehandlers waiting on the dock. The hosehandlers removed steel covers from the dockside pipes and bolted the barge hoses to those pipes. The barge crew then used pneumatic pump- ing equipment to propel cement from the barge to the pipeline and into the storage silos. Securing the dockside end of the hoses to the terminal pipeline took approximately 1 hour. While the cement was being pumped into the silos, Langan and Heuston remained idle. When pumping was complete, they disconnected the dockside end of the hoses from the pipeline and re- placed the steel covers. The barge crew retracted the hoses, which were then stored on the barge. The Employer estimates that the hosehandlers' dis- connection work took approximately 1 hour. Although the hosehandlers' total work took only about 2 hours, they were paid for the entire time it took to deliver the cement from the barge. In 1984, Langan and Heuston performed their 2-hour task at 26 deliveries and each was paid approximately $27,500 by the Employer. The Employer does not have a contract with Local 799, but had agreed to abide by those portions of the master contract be- tween the ILA and the Boston Shipping Associa- tion (BSA) regarding rates of pay and hours of em- ployment for Langan and Heuston. The Employer made no fringe benefit contributions on their behalf, and Local 799 makes no claim that the BSA master contract fringe benefit provisions applied to Langan and Heuston. 280 NLRB No. 24 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In March 1985, the Employer eliminated the longshoremen's work of connecting the barge hoses to the dockside pipeline. As before, the barge crew lifted the barge hose assembly off the barge by means of a boom and shackle mechanism con- nected to the barge pipes. The new barge hose was then permanently connected to the dockside pipe- line by tightly securing the bolts with new gaskets. Upon completion of the cement delivery, the barge crew disconnected its end of the hose from the barge standpipes; the hose assembly, now perma- nently affixed to the dockside pipeline and suspend- ed on the arm, ready to be picked up by the barge boom, was stored on the dock. The boom and shackle mechanism attached to the barge pipes was retracted onto the barge. The new method of cement delivery requires a dockside employee to walk along a newly built ac- cessway to grasp the boom and shackle mechanism off the barge and secure the shackle to the dock- side hose. The barge crew lifts the hose assembly off the projecting arm and places the unattached hose end near the barge standpipes. This maneuver allows the barge crew to then connect its end of the hose to the barge pipes. Once the hose assem- bly is secured, the dockside employee has no fur- ther work to do until the delivery is finished. At this time the barge crew disconnects the hose and booms the hose assembly onto the projecting arm. The dockside employee disconnects the dockside hose assembly from the barge at the point where the boom and shackle is connected to the hose. The Employer claims that the dockside employee needs only 3 to 4 minutes to complete each aspect of his work, inasmuch as there is now only a shackling task to perform. Since there is no longer any dockside hose hookup work to be done, the Employer argues that it no longer needs the serv- ices of Langan and Heuston. In March 1985, the Employer told Teamsters Local 25 that it intended to assign the new shack- ling work to Teamsters-represented employees. However, the Teamsters refused to accept the work assignment as long as there was any dispute with the ILA concerning the work. The Employer then assigned the new shackling work to an unrep- resented custodial employee already in its employ. The custodial employee has done the shackling work on all cement deliveries since May. Until March, the Employer called Langan and Heuston into work when a cement delivery was ex- pected. Although they were not called for the 6 May delivery, they came to the dock where the Employer told them that there was no longer any dockside hose hookup work for them to do. Langan and Heuston commenced picketing at the dock, where a cement barge was being docked. However, the tug crew stopped the docking proc- ess because of picketing and left the area. The Em- ployer's barge crew, represented by ILA Local 333, also departed. The picket signs carried by the former hosehandler-longshoremen read "Atlantic Cement Company, Union Busters, Local 799, ILA." After Langan and Heuston moved to the termi- nal entrance to picket, Local 799 Business Agent Connolly discussed the matter with Terminal Man- ager Hall. Connolly told Hall that "his pickets were up and there wouldn't be any trucks coming and going and . . . that tug would never come back to pick up that barge and leave." The Employer and Local 799 held further dis- cussions later that day. William McNamara, ILA's Atlantic Coast district vice president, requested that Langan and Heuston be paid for the time the barge was unloading; the Employer agreed without prejudice to its view that Langan and Heuston's services were no longer needed. The parties held another meeting on 9 May at which Local 799 requested that the Employer sign the master contract between the ILA and the BSA, of which the Employer is a member. The ILA did not request that the Employer reinstate Langan and Heuston to their former jobs. The Local 799 representatives testified that they sought work for Local 799-represented employees with full contract coverage. McNamara testified he told the Employ- er it was his responsibility to negotiate a contract and that he wanted the Employer to sign a con- tract with Local 799, even though the Employer had declined. The Employer refused to sign the BSA agreement, stated there was no longer any hose hookup work, and continued to refuse to give the new shackling work to longshoremen. McNa- mara asked the Employer to hire only one Local 799-represented employee under the BSA contract, but the Employer refused to do so. Local 799 resumed its picketing with the next cement delivery on 22 May with signs reading: "Atlantic Cement Company Refuses to Bargain with Local 799, ILA." Teamsters and ILA-repre- sented employees refused to cross the picket line during this and subsequent picketed deliveries. On one occasion, an ILA picket boat appeared in the river to protest a delivery; the Local 333-represent- ed employees on the tug pulling the cement barge merely anchored the barge and refused to cross the picket line. B. Work in Dispute The disputed work involves the hose hookup work (shackling) associated with the loading and LONGSHOREMEN ILA LOCAL 799 (ATLANTIC CEMENT) unloading of barges carrying bulk cement at the Employer's Boston (Charlestown), Massachusetts terminal. C. Contentions of the Parties The Employer argues that Local 799 violated Section 8(b)(4)(D) of the Act by picketing at its terminal in an attempt to force it to assign the dis- puted work to Local 799-represented employees. The Employer rejects Local 799's work preserva- tion claim, noting that Local 799 sought to have the Employer sign the BSA master contract but never sought to have Langan and Heuston reinstat- ed to their former jobs. The Employer claims that it assigned the disputed work to its unrepresented custodial employee on grounds of economy and ef- ficiency, and his work assignment reflects its pref- erence. Local 799 argues that assignment of the disputed work to employees it represents is supported by its 20-year-old oral agreement with the Employer to employ ILA-represented longshoremen members to do the hose hookup work. Local 799 claims its picketing was protected since it was directed to- wards preserving the work traditionally performed by employees it represents and argues that there has been no substantial change in the hose hookup work. D. Applicability of the Statute Before the Board proceeds with a determination 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. On 6 May, when Langan and Heuston were in- formed that there was no longer any hose hookup work for them to do, they began picketing at the Employer's dock. A cement barge about to dock was left unsecured by the tug crew, and the tug and barge crews left the area because of the picket- ing. Local 799's business manager informed the Employer that no trucks would come into the ter- minal and the cement barge would not leave be- cause of the pickets. Local 799 has continued to picket the Employer during subsequent cement de- liveries; the Employer's Teamsters and ILA-repre- sented employees have refused to cross the picket line. In several meetings with the Employer, Local 799 pressed its claim for return of the hosehandler position to employees it represents, and requested that the Employer sign the master agreement be- tween the ILA and the BSA. Local 799 has both threatened and taken economic action to force the 241 Employer to rehire the two hosehandlers. As the record reveals that Local 799 has sought by pro- scribed means to force the Employer to accede to its demands for the assignment of the disputed work, we find there is reasonable cause to believe that Section 8(b)(4)(D) has been violated. We find no merit in Local 799's claim that it was merely seeking to preserve work for displaced em- ployees it represents. In Waterway Terminals Co.,2 the Board held that where a union by its conduct merely seeks the reemployment of specific dislocat- ed workers and the continued application of a col- lective-bargaining agreement covering them, such a dispute is not the type of controversy Congress in- tended the Board to resolve pursuant to Sections 8(b)(4)(D) and 10(k). Local 799's actions belie any argument it sought to retrieve the jobs lost by Langan and Heuston, for its claim to the disputed work was extended to encompass all employees it represents,3 and, fur- ther, was an attempt to force the Employer to sign a contract with Local 799. In its 9 May meeting with the Employer, Local 799 asked for the em- ployment of two longshoremen with full contrac- tual benefits; the Employer refused this request. Local 799 Representative McNamara admitted he wanted the Employer to sign a contract with Local 799, even though the Employer had previously re- fused to do so. At no time did Local 799 specifical- ly request the Employer to rehire Langan and Heuston.4 Further, belying Local 799's work pres- ervation claim is the picket sign which went up at the 23 May cement delivery, reading "Atlantic Cement Company Refuses to Bargain with Local 799, ILA." It is therefore clear that Local 799's demand was for the disputed work for employees it represents in general, rather than for the reemploy- ment of Langan and Heuston in particular.5 We find Local 799's actions are of the type intended to be remedied by the application of Sections 8(b)(4)(D) and 10(k). It is undisputed that there is no agreed-upon method for the voluntary adjustment of this dis- pute. Accordingly, we find that the matter is properly before the Board for determination under Section 10(k) of the Act. 2 185 NLRB 186 ( 1970), enf denied 467 F 2d 1011 (9th Cir. 1972). 0 Longshoremen ILWU Local 8 (Collier Carbon), 231 NLRB 179, 180 (1977). 4 Local 799 did ask at one point that Langan and Heuston receive con- tractual wages for the time the barge was unloading 6 Longshoremen IL WU Local 8, above at 180; Teamsters Local 85 (Pa- cific Maritime Assn.), 208 NLRB 1011, 1013 (1974) 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Merits of the Dispute Sections 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. Certifications and collective-bargaining agreements There are no previous Board orders or certifica- tions awarding the disputed work to employees represented by Local 799 or to the Employer's un- represented employee. There is no written collec- tive-bargaining agreement between the Employer and Local 799 covering the disputed work. The Employer had agreed to apply the wage and hour provisions of the BSA master agreement to the longshoremen, but was not bound by the entire BSA contract. Accordingly, this factor does not favor an award either to employees represented by Local 799 or to the Employer's unrepresented custodial employee. 2. Employer preference and past practice In its brief to the Board following the hearing, the Employer states it prefers that its unrepresented custodial employee perform the disputed work. Its past practice was to assign the work to Local 799- represented employees. Accordingly, employer preference favors an award to the Employer's un- represented employee, while past practice favors an award to Local 799-represented employees. 3. Relative skills Since the disputed work requires no special training, it can be performed satisfactorily by Local 799-represented employees or by the unrepresented custodial employee. James Langan, formerly a hosehandler, testified that, in addition to the hosehandling work, he and Heuston performed such incidental tasks as turning on the lights at the dock, operating the gangway between the dock and the barge, and setting up the communication system between a cement barge and the storage silos. The Employer argues that none of this work is specialized, since Langan's tes- timony also shows that he and Heuston were merely required to activate certain electrical switches and plug telephone lines into their recep- tacles. We find this factor does not favor an award either to employees represented by Local 799 or to the Employer's unrepresented custodial employee. 4. Economy and efficiency of operation John H. Johnson Jr., a labor relations consultant to the Employer, testified that the "primary reason [for the change in hosehandling work] was it cut down on the amount of labor involved in each hookup of the barge as it came into the terminal." In his closing argument at the hearing, the Em- ployer's attorney pointed out that the new duties were reassigned to the custodial employee at a lower cost and "with substantially greater efficien- cy because that custodial employee was employed for varied services ...." According to the testimony of Terminal Manag- er Sherman Hall, the custodial employee performs a variety of duties for the Employer; the hose shackling work is merely incidental to his custodial work and he is not paid extra for the shackling work. Hall also testified that the custodial employ- ee can perform the hose shackling work by himself. The former hosehandling method required two longshoremen who were paid for the entire time it took to deliver cement for each of 26 cement deliv- eries in 1984, even though they did no work be- tween their 1-hour connection work and their 1- hour disconnection work. From these facts, the Employer argues that it is more economical and efficient to assign the disput- ed work to its custodial employee rather than to employees represented by Local 799. We agree with the Employer that the economy and efficien- cy factor favors an award of the disputed work to the Employer's unrepresented custodial employee. Conclusions After considering all the relevant factors, we conclude that the Employer's unrepresented custo- dial employee is entitled to perform the work in dispute. We reach this conclusion relying on the Employer's preference and economy and efficiency of operation. In making this determination, we are awarding the work to the Employer's unrepresent- ed custodial employee. This determination is limit- ed to the controversy that gave rise to this pro- ceeding. DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute. 1. The Employer's unrepresented custodial em- ployee is entitled to perform the hose hookup work LONGSHOREMEN ILA LOCAL 799 (ATLANTIC CEMENT) associated with the loading and unloading of barges carrying bulk cement at the Employer's Boston (Charlestown), Massachusetts terminal. 2. International Longshoremen's Association, Local 799, AFL-CIO, is not entitled by means pro- scribed by Section 8(b)(4)(D) of the Act to force the Employer to assign the disputed work to em- ployees represented by it. 243 3. Within 10 days from this date, International Longshoremen's Association, Local 799, AFL- CIO, shall notify the Regional Director for Region 1 in writing whether 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 this determination.