Longshoremen Ila Local 3000 (Coastal Cargo)

542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD General Longshore Workers Local Union No. 3000 of International Longshoremen's Association, AFL-CIO and Coastal Cargo Company, Inc. and Teamsters Local Union No. 270, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 15-CD-293 June 30, 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON The charge in this Section 10(k) proceeding was filed on August 14, 1985, amended August 15, by the Employer, alleging that the Respondent, Gen- eral Longshore Workers Local Union No. 3000 of International Longshoremen's Association, AFL- CIO, violated Section 8(b)(4)(D) of the National Labor Relations Act by engaging in proscribed ac- tivity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees represented by Teamsters Local Union No. 270, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, AFL-CIO. The hearing was held on September 16 and 17 before Hearing Officer Lyn J. Beck.2 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 fol- lowing findings. I. JURISDICTION The Employer, Coastal Cargo Company, Inc. (CCCI), a Louisiana corporation, operates a cargo company. Based on a projection of the Employer's New Orleans operations (since they commenced on July 16, 1985), the Employer will derive annual gross revenues in excess of $50,000 for services performed as a link in interstate commerce and will annually purchase and receive goods and materials valued in excess of $50,000 directly from points outside the State of Louisiana. The parties stipulate to facts that satisfy the Board's jurisdictional requirements. We find that CCCI is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The parties stipulate, and we find, that Local 3000 and Local 270 are labor organizations within the meaning of Section 2(5) of the Act. II. THE DISPUTE A. Background and Facts of Dispute CCCI was incorporated on July 16, 1985. It is a cargo company that loads and unloads ships docked at the Port of New Orleans. CCCI loads grain, breakbulk, and containerized cargo onto ves- sels and discharges cargo from vessels or barges onto the dock. In the related case, Coastal Cargo Co., supra, the Board determined that CCCI is the alter ego of a now-defunct company called Coastal Cargo Company, which operated from May 4 to October 1, 1984; this company had a collective-bar- gaining agreement with Local 270, which ran from May 1, 1984, to April 30, 1987. On July 1, 1985, CCCI signed a collective-bargaining agreement with Local 270, effective until June 30, 1988. The Board determined that this was a valid agreement because CCCI was a continuation of Coastal Cargo Company and was subject to the latter's bargaining obligations. 3 On July 16, 1985,4 CCCI engaged in its first op- eration. CCCI loaded and unloaded the M/V Marina Heeren, which was docked at the Galvez Street Wharf in New Orleans. At the wharf a man who said he was a vice president of Local 3000 ap- proached CCCI's president, Durel Landry, and asked him who was loading the Marina Heeren. When Landry said Local 270 was doing the work, the man stated that he was going to Local 270's president, Mitch Ledet, and ask why members of the Teamsters were doing stevedoring work. Ledet testified that on July 24, at a meeting at- tended by Ledet and Local 3000's president, Cliven Cormier, Cormier said he would do whatever was necessary to get the stevedoring work back from Local 270. Cormier denied making the statement. On July 29, the Marina Heeren returned to the Galvez Street Wharf and was unloaded by CCCI's employees. During the unloading, the Galvez Street Wharf and surrounding areas were picketed by approximately 50 men carrying signs.5 The 1 On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 A stay was issued in this case on January 15, 1986 , in order that a related case could first be resolved See Coastal Cargo Co, 286 NLRB 200 (1987) See also the companion case issued this day, Longshoremen ILA Local 3000 (Coastal Cargo Co), 289 NLRB 546. 286 NLRB 200 (1987) All dates refer to 1985 , unless otherwise indicated. CCCI's facility is located at 4500 Galvez Street Photographs were taken of the signs The signs said "Mitch Ledet is taking food out of our babies' mouths", "big-time union boss Ledet is stealing workers' bread' ; "what has the boss given you, Ledet, for you"; "Ledet has forgotten where he came from Don't you be a scab", and "what has the boss given Ledet for you to make scabs out of brother Teamsters " 289 NLRB No. 69 LONGSHOREMEN ILA LOCAL 3000 (COASTAL CARGO) group contained retired and active members of Local 3000.6 The police eventually dispersed the pickets and they moved from the wharf to the Galvez Street-Japonica Street area. This was the entranceway used by the trucking firm hired by CCCI to transport the containers unloaded from the Marina Heeren. The truckdrivers were also members of Local 270. Landry testified that 10 pounds of roofing nails and drywall nails were spread on the access roads to the Galvez Street Wharf. The nails became imbedded in the tires of the hired trucks. On August 13 the Marina Heeren again docked at the Galvez Street Wharf. About 50 men picket- ed at the Galvez Street floodgate carrying the same signs as on June 29. Harris and Sarentine were among the pickets. B. Work in Dispute The disputed work involves the loading and un- loading of containerized cargo from the oceango- ing vessel M/V Marina Heeren at the Galvez Street Wharf. C. Contentions of the Parties The Employer, CCCI, contends that reasonable cause exists to believe that Local 3000 violated Section 8(b)(4)(D) of the Act; and that the work in dispute should be awarded to CCCI's employees represented by Local 270 based on the factors of employer preference, past practice, the collective- bargaining agreement , skill, and economy and effi- ciency. Local 3000 contends that the picketing was in- formational picketing, and the signs were aimed at Local 270's president, Mitch Ledet, and not at the Employer. Local 3000 also contends that Harris or- ganized the picketing without authority from Local 3000 and that Harris is not an agent of Local 3000. D. Applicability of the Statute Section 10(k) of the Act empowers the Board to determine a dispute out of which an 8(b)(4)(D) charge has arisen. However, before the Board pro- ceeds with a determination of dispute 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 voluntary set- tlement of the dispute. 8 CCCI's superintendent, Scott, overheard one of the pickets ask two of CCCI's employees not to unload the ship. The picket was later identi- fied as Thomas Hams, a retired Local 3000 member. Landry testified that he saw one picket "jumping up and down scream- mg, 'blood, blood, real blood's going to flow over this.The man was later identified as Paul Sarentine , a former business agent of Local 3000 and a current member. 543 At the beginning of the dispute, CCCI's employ- ees represented by Local 270 had been assigned to perform the work in dispute. The longshoremen contended that the work belonged to them. Mem- bers of Local 3000 twice picketed the Marina Heeren, the situs of the work, with signs, two of which referred to the teamsters as "scabs." Scab is a "term of art" commonly used by a union member who has lost work in reference to the person who has taken the work. Further, the picketing done by members of Local 3000 was clearly aimed at the employees of CCCI, the Marina Heeren, and the truck company.7 There is reasonable cause to believe that an object of the picketing was to force or require CCCI to assign the work in dispute to employees represented by Local 3000 rather than to its own employees represented by Local 270 and that the picketing was not solely for the purpose of inform- ing the public that Mitch Ledet and Local 270 were doing stevedoring work. Also, on July 24, ac- cording to Ledet,8 Cormier told Ledet that he would do whatever was necessary to get the work back from Teamsters Local 270. There is also evidence that Harris, a retired Local 3000 member, tried to induce or encourage employees of CCCI to cease unloading the ship. Further, Sarentine, a current member, was identi- fied as one of the individuals picketing the Marina Heeren. There is reasonable cause to find that Harris and Sarentine were acting on behalf of Local 3000. Their actions were in furtherance of Local 3000's objectives, and Local 3000 never re- pudiated their activities. No evidence was produced at the hearing of an agreed-upon method for the voluntary adjustment of the instant dispute. We find reasonable cause to believe that a viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- 7 Chairman Stephens finds it unnecessary to infer a noninformational object from the use of the word "scab" in the picket signs carried by the ILA members. He agrees that it may commonly refer to a person who has taken work from a union member However, according to one au- thority, "[t]he terms may be applied to an individual who will accept lower wages or poorer working conditions than those which the union has established or seeks " Roberts' Dictionary of Industrial Relations at 644 (3d ed. 1986 BNA). In the instant case, the ILA contends that the Team- sters were undermining local wage and benefit standards established by the Respondent and further that the purpose of the picketing was to pub- licize that fact to the public Be that as it may, Chairman Stephens finds from the remaining evidence in the record that there was also an unlaw- ful object of forcing the employer to assign the stevedoring work to the ILA 8 Although Cormier denied making the threat , a conflict in testimony does not prevent the Board from proceeding under Sec 10(k) The Board is not charged with finding that a violation actually occurred but only with determining whether reasonable cause exists for finding a violation Longshoremen ILA Local 1588 (Atlantic Cement), 273 NLRB 1723, 1725 (1985) 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment of the dispute within the meaning of Section 10(k) of the Act. 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. Machinists Lodge 1743 (J. A. Jones Construction), 135 NLRB 1402 (1962). The following factors are relevant in making the determination of this dispute. 1. Certification and collective-bargaining agreement CCCI has a collective-bargaining agreement with Local 270;9 it has no collective-bargaining agree- ment with Local 3000. No Board certification has been issued regarding CCCI's employees engaged in stevedoring operations or regarding any other unit of employees. This factor favors an award of the disputed work to employees represented by Local 270. 2. Company preference and past practices CCCI prefers that the work in dispute be done by its employees who are represented by Local 270. CCCI's alter ego Coastal Cargo Company used employees represented by Local 270 to load and unload ships. This factor favors awarding the disputed work to employees represented by Local 270. 3. Area practice The record shows that the loading and unloading of ships in the Port of New Orleans has in the past been done by employees represented by Local 3000. More recently employees represented by Local 270 have engaged in stevedoring work. Therefore, this factor does not favor awarding the disputed work to either group of employees. 4. Relative skills Both employees represented by Local 270 and Local 3000 possess the skills needed to load and unload ships. Both groups of employees have expe- 11 agreement covers the classifications of- checker, crane operator, lift driver, loader, flag man, loading crew, labor, and pallehzer The agreement does not describe the work these classifications perform rience in stevedoring work. Therefore, this factor does not favor awarding the disputed work to either group of employees. 5. Economy and efficiency CCCI's president, Landry, testified that it is more economical and efficient for the Employer to use its own employees represented by Local 270. Landry testified that usually he would have to hire 18 longshoremen as opposed to 7 teamsters for each job. Landry also testified that he only hired as many teamsters as he needed and did not have to hire waterboys and timekeepers as required by the longshoremen. Therefore, this factor favors award- ing the disputed work to employees represented by Local 270. Conclusion After considering all the relevant factors, we conclude that employees represented by Local 270 are entitled to perform the work in dispute. We reach this conclusion relying on the collective-bar- gaining agreement between CCCI and Local 270, employer preference and past practice, and econo- my and efficiency. In making this determination, we are awarding the work to employees represented by Teamsters Local Union 270, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL-CIO, not to that Union or its members. Scope of the award The Employer contends that the determination should encompass all stevedoring work within the geographical jurisdiction of Local 3000. Generally, for the Board to issue a broad, areawide award, there must be evidence that the disputed work has been a continuing source of controversy in the rel- evant geographic area and that similar disputes are likely to recur. There must also be evidence that demonstrates the charged party has a proclivity to engage in unlawful conduct to obtain work similar to the disputed work. In this case, the notice of hearing limited the scope of the disputed work to the loading and un- loading of the M/V Marina Heeren at the Galvez Street Wharf in the Port of New Orleans. Howev- er, in the companion case, Longshoremen ILA Local 3000 (Coastal Cargo Co.), supra, the notice of hear- ing defined the work in dispute as the loading and unloading of ships within the geographical jursidic- tion of Local 3000. Further, in the companion case, the Board makes an award regarding the broad definition of the work in dispute. Thus, in this case we do not grant the Employer's request for a LONGSHOREMEN ILA LOCAL 3000 (COASTAL CARGO) 545 broad award. Although we here limit the scope of our award to the loading and unloading of the M/V Marina Heeren at the Galvez Street Wharf, our award in the companion case , in effect, gives the Employer the relief that it is requesting. Accordingly, our 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 Coastal Cargo Company, Inc., represented by Teamsters Local Union 270 affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, are entitled to perform the loading and unloading of the M/V Marina Heeren at the Galvez Street Wharf in New Orleans, Louisiana. 2. General Longshore Workers Union No. 3000 of International Longshoremen's Association, AFL-CIO is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force Coastal Cargo Company, Inc. to assign the disputed work to employees represented by it. 3. Within 10 days from this date, General Long- shore Workers Union No. 3000 of International Longshoremen's Association, AFL-CIO shall notify the Regional Director for Region 15 in writ- ing whether it will refrain from forcing the Em- ployer, by means proscribed by Section 8(b)(4)(D), to assign the disputed work in a manner inconsist- ent with this determination.