International Longshoremen'S Association Local Union No. 1329

1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's Association Local Union No. 1329 and C. H. Sprague & Son Co. and State Fuel Handlers Union . Case 1-CD- 761 DECISION AND DETERMINATION OF DISPUTE 31 July 1986 BY MEMBERS JOHANSEN, BABSON, AND STEPHENS The charge in this Section 10(k) proceeding was filed 17 December 19851 by the Employer, alleging that the Respondent, ILA Local 1329, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to em- ployees represented by Fuel handlers. The hearing was held on 3, 4, and 18 February 1986 before Hearing Officer Gerald Wolper. 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, fording them free from prejudicial error. On the entire record, the Board makes the following find- ings. 1. JURISDICTION The Employer is a wholly owned subsidiary of A. Johnson Energy Marketing Company, Inc., a Delaware corporation . The Employer is engaged in the business of the storage, transportation, and/or sale of petroleum and other products at its Provi- dence, Rhode Island terminal, where it annually re- ceives goods directly from points located outside the State of Rhode Island valued in excess of $50,000. The parties stipulate, and we ford, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that Local 1329 is a labor organization within the mean- ing of Section 2(5) of the Act. Although there is no stipulation concerning the status of Fuel Handlers as a labor organization, the record reveals that Fuel Handlers admits employ- ees into membership and exists for the purpose of dealing with the Employer concerning the wages, hours, and other terms and conditions of employ- ment of its employees. We therefore find that Fuel Handlers is a labor organization within the mean- ing of Section 2(5) of the Act. 1 All dates are in 1985 unless otherwise specified. 280 NLRB No. 147 II. THE DISPUTE A. Background and Facts of Dispute The Employer has operated a terminal in Provi- dence, Rhode Island, since about 1905. Its employ- ees at this terminal have been represented by the Fuel Handlers since at least 1956. The Employer and Fuel Handlers have been parties to successive collective-bargaining agreements covering these employees. The current collective-bargaining agreement is effective 15 April 1985 to 14 April 1987. Since 1905, Sprague employees have been in- volved in the unloading of ships which arrive at the terminal with cargos of petrolem products and bulk cargo of coal, pumice rock, and salt. The last bulk cargos of salt unloaded at the Providence ter- minal prior to December 1985 were in 1972. The last cargos of other bulk materials unloaded prior to December 1985 were in 1976.2 Prior to 1976 the unloading of bulk cargos was performed manually using a system of gantry cranes equipped with grab buckets which were lowered into the hold of the vessel to pick up and remove the cargo from the hold. The cargo was then released from the grab bucket into a hopper on the gantry crane tower where it was fed onto a conveyor belt which trans- ported the cargo along the dock and onto the ground. The cargo was then stored until it was loaded onto a truck and delivered to the customer. During unloadings the Employer's employees were assisted by temporary employees, some of whom were members of Local 1329. These tempo- rary employees were primarily employed as "trim- mers" who shoveled or swept the cargo from the corners of the hold of the vessel to the center so that the cargo could be removed by the crane. The majority of these individuals who worked as "trim- mers" were hired only to unload the vessel and their employment was terminated when the unload- ing was finished. These temporary employees were hired on an as-needed basis either through the union hall operated by Local 1329 or "off the street." In 1977 or 1978, the gantry crane system was torn down because of deterioration and safety con- siderations. In the summer of 1985 , the Employer began constructing a new conveyor belt system at its Providence terminal to replace the old gantry crane system.3 The new system was completed in 2 The Employer handled no dry goods bulk cargos at the terminal from 1976 to 1985. i The new conveyor belt system was constructed as a result of an oral agreement and a letter of intent between the Employer and Diamond Crystal Salt Company in the spring of 1985. LONGSHOREMEN ILA LOCAL 1329 (SPRAGUE & SON) the fall of 1985. The Employer's employees were involved in the construction of this system and were given the responsibility of operating and maintaining this system. As a result of the installa- tion of this new system, the terminal can now handle only self-unloading vessels. With this system, the vessel mechanically unloads the bulk cargo into hoppers on the conveyor belt which then transports the cargo several hundred feet, at which point the cargo is deposited on the ground and stored until customers have the cargo taken away. On 22 October the Employer signed an agree- ment with Diamond Crystal for the unloading of bulk salt cargo at the Employer's Providence ter- minal through the use of the new conveyor belt system. About 14 December a ship arrived at the Providence terminal containing the first salt cargo to be unloaded under the agreement between the Employer and Diamond Crystal. The unloading of this cargo was the Employer's first use of the con- veyor belt system. The work of tying and untying the ship and the operation of the conveyor belt system to accomplish the unloading of the salt after it had been deposited into the hoppers were as- signed by the Employer to its employees represent- ed by the Fuel Handlers. The cargo was unloaded on 14 and 15 December and the vessel departed from the Providence terminal on 15 December. The Employer's employees stacked and shaped the pile of salt for loading and delivery by a subcon- tractor hired by Diamond Crystal. On 14 December while the vessel was being un- loaded, Jack Gomes, president of Local 1329, spoke with Henry Powers, the Employer's presi- dent and chief executive officer, at the Providence terminal. Gomes claimed that he had jurisdiction of the work of unloading the salt cargo and wanted his people to unload the ship. On 17 December a similar claim was made by Gomes during a tele- phone conversation between Gomes and the Em- ployer's attorney. Gomes was told by Powers and the Employer's attorney that the work had been given to the Employer's employees represented by the Fuel Handlers who had unloaded the vessels in the past and that there was no need for extra per- sons. On 16 December and continuing until approxi- mately midday on 19 December, a picket line was set up at the Employer's terminal. The pickets car- ried signs which read: C.H. Sprague Co. Does not conform to Community Standards for Wages & Fringe Benefits this sign is not for organizational purposes or to induce employees not to work. Local Unions 1329-2001 ILA AFL-CIO 1303 The picket line was removed following an agree- ment between the Employer and Local 1329 to seek an award under Section 10(k). The Employer also agreed not to seek monetary damages for the picketing that occurred. B. Work in Dispute The disputed work involves handling the salt ship and offloading the salt cargo at the Employ- er's Providence, Rhode Island terminal. C. Contentions of the Parties The Employer contends that the parties stipulat- ed at the hearing that Local 1329 violated Section 8(b)(4)(D) of the Act by stipulating that the picket- ing on 16-19 December was for the purpose of forcing the Employer to assign the salt work to employees represented by Local 1329. The Em- ployer additionally contends that the record is re- plete with evidence that reasonable cause exists to believe that Local 1329 violated Section 8(b)(4)(D). In this regard, the Employer cited the testimony of Local 1329's president's admitting that the purpose of the picketing was to show the Employer that the disputed work belonged to employees repre- sented by Local 1329 . Regarding the merits of the dispute, the Employer argues that the disputed work should be awarded to its own employees rep- resented by the Fuel Handlers based on the factors of collective-bargaining agreements; company as- signment, past practice, and preference; relative knowledge and skills; economy and efficiency of operations; and safety considerations. Local 1329 contended at the hearing that no rea- sonable cause exists to believe that it has violated Section 8(b)(4)(D) of the Act. In this regard, noting that paragraph two of the Employer's 22 October agreement with Diamond Crystal Salt Company states that Diamond Crystal desires to enter into an agreement "to allow Diamond Crystal to accomplish the unloading of vessels as [sic] Providence, Rhode Island, and storage of salt at Providence for their own account," Local 1329 argued that the assignment of the disputed work was not made by the Employer, but rather was made by Diamond Crystal. Local 1329 also con- tended that the disputed work should be assigned to the individuals it represents because they have performed such work in the past. Finally, Local 1329 argues that the collective-bargaining agree- ment between the Employer and the Fuel Handlers does not cover the work in dispute. 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Applicability of the Statute Before the Board may make 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(bX4)(D) has been violated and that the parties have not agreed upon a method for voluntary adjustment of the dispute. We find reasonable cause to believe that Local 1329 had violated Section 8(b)(4)(D) of the Act.4 Initially, it is clear from the record that the Em- ployer, rather than Diamond Crystal, made the as- signment of the disputed work. Under the agree- ment between the Employer and Diamond Crystal, the Employer was responsible for handling and storing the salt owned by Diamond Crystal. Further, although. the record shows that pickets for Local 1329 appeared at the terminal with "area standards" picket signs, Local 1329 does not con- tend, nor does the record support a finding, that the picketing had only an "area standards" pur- pose. Although Local 1329's president testified that the picket line was informational, he also testified that the picket line was put up "so we would find out who was in charge of assigning the work which historically has been our work." Local 1329's president further testified that he felt that the salt work at the Employer's terminal belonged to employees represented by Local 1329 and that the picket line "was caused to be put up because of our work that was being performed there." Fur- ther, Local 1329's president admitted that he was "primarily trying to get any longshore work no matter where it's at, to assign it to the workers that are supposed to work it." Additionally, there is no evidence in the record, and no party contends, that an agreed-upon method exists for the voluntary resolution of the instant dispute. Accordingly, we find that the dis- pute is properly before the Board for determina- tion. 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. 4 Contrary to the Employer's assertion, however, the record is unclear whether the parties stipulated that Local 1329 violated Sec. 8(bX4)(D) in- sofar as the Employer conditioned the stipulation upon "additional evi- dence' because it "couldn't have 100% agreement on all of the language in it" Machinists Lodge 1743 Q. 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 - Neither labor organization has been certified by the Board as the collective-bargaining representa- tive of the Employer's employees in the appropri- ate unit. Accordingly, this factor is not helpful' in determining the dispute. The Employer has no collective-bargaining agreement with Local 1329. While the Employer currently has a collective-bargaining agreement with Fuel Handlers, and while the employees cov- ered by such agreement have unloaded bulk cargo at the Employer's terminal in the past, the agree- ment does not specifically cover the disputed work. We therefore find that the factor of collective-bar- gaining agreements is inconclusive. 2. Company preference and past practice The disputed work was performed for the first time in December 1985 using the new conveyor belt system for self-unloading vessels. Although the record indicated that work similar to the work in dispute was performed by the Employer's employ- ees using the old gantry crane system for manual unloading, the record discloses no past practice by the Employer with respect to the assignment of work identical to that in dispute. This factor, there- fore, is not helpful to our determination. The Employer, at the hearing and in its brief, ex- pressed its preference that the disputed work con- tinue to be performed by its employees represented by Fuel Handlers because of their familiarity with the dock and the equipment. The Employer's pref- erence is also consistent with its assignment of the disputed work since December 1985. This factor favors an award of the work to the Employer's em- ployees represented by Fuel Handlers. 3. Relative skills and safety considerations The Employer presented undisputed evidence that its employees represented by Fuel Handlers, who have an average of 10 years' experience, pos- sess the requisite skills to handle the lines on ships and to operate, maintain, and repair the new con- veyor belt system. Although Local 1329 presented evidence that its members possess the requisite skills to handle and unload self-unloading salt ships, it presented no evidence that its members have op- erated the type of conveyor belt system currently utilized by the Employer, nor did it present evi- dence that its members have the skills to maintain LONGSHOREMEN ILA LOCAL 1329 (SPRAGUE & SON) and repair the Employer's conveyor belt system. Accordingly, we find the factor of relative skills favors awarding the disputed work to employees represented by Fuel Handlers. The Employer's vice president testified that the new conveyor system "could be dangerous" to op- erate. The Employer also presented evidence that it had a "very good safety record" at the Provi- dence terminal. Local 1329 did not present any evi- dence on this issue and did not otherwise dispute the Employer's evidence. Accordingly, the factor of safety considerations favors employees repre- sented by the Fuel Handlers. 4. Economy and efficiency of operations The Employer presented undisputed evidence that its Fuel Handlers-represented employees are able to repair the conveyor belt system immediate- ly in the event that it breaks down and that break- downs have occurred on several occasions. Local 1329 presented no evidence that the employees it represents would be able to maintain or otherwise repair the conveyor belt system. The Employer also presented testimony that the new conveyor system is automated and requires at most four per- sons to operate it, whereas the minimum gang size required by the ILA master agreement consists of at least six persons for offloading salt. Accordingly, and because we fmd that Local 1329 presented no evidence showing that it would be as efficient or economical to utilize employees represented by it to perform the disputed work, we find that the factor of economy and efficiency of operations favors an award to the Employer's Fuel Handlers- represented employees. 1305 Conclusion Upon the record as a whole, and after full con- sideration of all the relevant factors , we conclude that the Employer's employees who are represent- ed by Fuel Handlers are entitled to perform the work in dispute. We reach this conclusion relying on the Employer's preference; relative skills and safety considerations; and economy and efficiency of operations. In making this determination, we are awarding the work to employees represented by Fuel Handlers, not to that Union or its 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. 1. Employees of C. H. Sprague & Son Co., rep- resented by State Fuel Handlers Union are entitled to perform the work of handling the salt ship and offloading the salt cargo at its Providence, Rhode Island terminal. 2. International Longshoremen's Association, Local Union No. 1329 is not entitled by means pro- scribed by Section 8(bX4)(D) of the Act to force C. H. Sprague & Son Co. to assign the disputed work to employees represented by it. 3. Within 10 days from this date, International Longshoremen's Association, Local Union No. 1329 shall notify the Regional Director for Region 1 in writing whether it will refrain from forcing the Employer, by means proscribed by Section 8(bX4)(D), to assign the disputed work in a manner inconsistent with this determination.