Longshoremen Ila Local 928 (Buffalo Stone)

LONGSHOREMEN ILA LOCAL 928 (BUFFALO STONE) International Longshoremen's Association, AFL- CIO, Local 928 and Buffalo Crushed Stone, Inc (and Gateway Trade Center, Inc, a Sister Corporation) and International Union of Oper ating Engineers, Local 17, 17A and 17B and Truck Drivers Local Union No 449, affiliated with the Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affili ated with the AFL-CIO Cases 3-CD-587-1 and 3-CD-587-2 October 26 1988 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT The charges in this Section 10(k) proceeding were filed on June 13 1988 by Buffalo Crushed Stone Inc (or the Employer) alleging that the Re spondent International Longshoremen s Associa tion AFL-CIO Local 928 (ILA Local 928) 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 em ployees represented by International Union of Op erating Engineers Local 17 17A and 17B and Truck Drivers Local Union No 449 affiliated with the Brotherhood of Teamsters Chauffeurs Ware housemen and Helpers of America affiliated with the AFL-CIO The hearing was held on July 29 1988 before Hearing Officer Reva W Betha The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board affirms the hearing officers rulings finding them free from prejudicial error On the entire record the Board makes the following find rags I JURISDICTION Buffalo Crushed Stone Inc a New York State corporation with its principal place of business in Buffalo New York is engaged in the retail and nonretail sale and distribution of slag stone and blacktop and in providing services to the Gateway Trade Center Inc and other business enterprises It annually derives gross revenues in excess of $500 000 for services sales and distribution and purchases and receives goods and materials valued in excess of $50 000 directly from points outside the State of New York We find the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that ILA Local 928 Operating Engineers Local 17/17A/17B and Truck Drivers Local 449 445 are labor organizations within the meaning of Sec tion 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute About 3 years ago Gateway Trade Center' (Gateway) was formed and began operating Gate way Metroport Center a part of the Port of Buffa lo that formerly had been operated by a public au thority Gateway employs no operational employ ees Work at the port is done for Gateway by Buf falo Crushed Stone Inc whose employees are rep resented by Operating Engineers Local 17/17A/17B and Truck Drivers Local 449 Em ployees who are represented by Operating Engi neers Local 17/17A/17B handle all the mobile lifts and equipment including cranes shovels front end loaders forklifts ships gear and dock equipment in unloading ships and railcars Employees who are represented by Truck Drivers Local 449 operate all conveyors crushers screeners and trucks in the movement of material to and from ships railcars and storage sites and perform all manual labor on ships and docks when loading and unloading cargo until equipment manned by employees represented by Operating Engineers Local 17/17A/17B takes over Both groups of employees repair the equip ment they operate Richard Mirabelli vice president of both the Employer and Gateway as well as other Employer witnesses testified that on June 10 1988 Michael Brill president of ILA Local 928 and five other men established a floating picketline near the Gateway Metroport They displayed a sign that read Unemployed Longshoremen protesting working conditions and wages A freighter the Silver Leader was scheduled to dock on that day Due to the picket line the pilot of the Silver Leader and two tugboat captains refused to guide the ship into the port Mirabelli also testified that on June 10 1988 Brill told him [T]he ILA will handle that ship or nobody else is going to handle that ship [Brill] said that s going to be [ILA] work or [the Silver Leader] isn t coming in Mirabelli added that Brill also told him [A]ll the ships that come in here are going to be our ships or you aren t going to get any Following this conversation Brill and the other men returned to the boat and continued pick eting After additional unsuccessful attempts to ' Buffalo Crushed Stone Co Inc and Gateway Trade Center are sister corporations with common officers Their parent corporation is 2544 Clinton Street Inc in Buffalo 291 NLRB No 76 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD enter the port 2 the Silver Leader proceeded to Detroit where its cargo was shipped overland to Buffalo B The Work in Dispute The work in dispute is the loading and unloading of ships and the transfer of material onto and off of the dock at the Gateway Metroport Center 3 C Contentions of the Parties The Employer contends that the disputed work should be awarded to the employees represented by Operating Engineers Local 17/17A/17B and Truck Drivers Local 449 on the basis of the Em ployer s practice collective bargaining agreements and certifications skill and safety and economy and efficiency of operation Truck Drivers Local 449 and Operating Engineers Local 17/17A/17B concur in supporting the Employers work assign ment ILA Local 928 did not send a representative to the hearing or file a brief 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 on method for the vol untary adjustment of the dispute Witnesses for the Employer testified that on June 10 1988 ILA Local 928 established a floating picketline that prevented a vessel from entering the Gateway Metroport Further, the Employer was threatened by ILA Local 928 s president that the ship would not dock unless the ILA did the work of unloading and handling the steel and that performing the disputed work on all ships coming into the port would be done by the ILA or not at all There is reasonable cause to believe that an object of the picketing and threat was to force or require the Employer to assign the work in dispute to employees represented by ILA Local 928 rather than to their own employees represented by Truck Drivers Local 449 and Operating Engineers Local 17/17A/17B 2 Mirabelli testified that he was told in a phone conversation with the shipper Fed Nav that the shipper had sent a replacement crew for the tugboats to Buffalo from Ohio but the crew was intimidated from at tempting to bring in the S Iver Leader by a group of men whom the crew believed to be ILA men carrying hockey sticks ai d baseball bats a Although this descrption of the work in dispute is open ended the record before us contains insufficient information to make a determina Lion beyond the work related to the Silver Leader which had been scheduled to dock at the port on June 10 1988 and to be unloaded the following morning Apparently other vessels have since entered the Me troport without incident although they did not require pilots or tugs No party claims that there is an agreed on method for the voluntary adjustment of this dis pute We find reasonable cause to believe that a viola tion of Section 8(b)(4)(D) has occurred and that there exists no agreed on method for voluntary ad .justment of the dispute within the meaning of Sec tion 10(k) of the Act Accordingly we find that the dispute is properly before the Board for deter mmation E Merits of the Dispute Section 10(k) requires the Board to make an of 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 Board certifications Truck Drivers Local 449 was certified in 1968 and Operating Engineers Local 17/17A/17B in 1969 for appropriate units of the Employers prede cessor The certifications however predate Gate way Metroport s existence and do not describe the work performed by the certified units This factor does not favor awarding the work to a particular group of employees 2 Collective bargaining agreements Buffalo Crushed Stone has collective bargaining agreements with both Truck Drivers Local 449 and Operating Engineers Local 17/17A/17B It has no collective bargaining agreement with ILA Local 928 Both contracts contain language that in dicates that they cover employees working at or around the dock although neither contract de scribes the work in dispute 4 In the absence of con trary evidence we find that this factor favors an award of the disputed work to employees repre sented by Truck Drivers Local 449 and Operating Engineers Local 17/17A/17B 4 The collective bargaining agreement between the Employer and Op erating Engineers Local 17/17A/17B states that the Union is recognized as the sole collective bargaining agency for [All] Enginee s and Opera tors of cranes shovels locomotives bulldozers loaders and maintenance engineers employed at the Company s plants Nos 81 82 and 83 Plant No 83 is located at the North End of the Woodlawn property and Gateway Trade Center Area including the dock LONGSHOREMEN ILA LOCAL 928 (BUFFALO STONE) 447 The agreement with Truck Drivers Local 449 states that the Employer agrees to recognize the Union as the sole collective bargaining agency for all of its Maintenance and Production Employees employed in its plants which are Plant No 81 Plant No 82 Plant 83 and Dock Area 3 Company preference and past practice Buffalo Crushed Stone prefers that the work in dispute be done by employees who are represented by Truck Drivers Local 449 and Operating Engi neers Local 17/17A/17B Employees represented by these Locals have loaded and unloaded ships and moved materials on and off the dock for the 3 years Gateway has operated the port This factor favors awarding the disputed work to employees represented by Truck Drivers Local 449 and Oper ating Engineers Local 17/17A/17B 4 Area practice No evidence is available concerning the practice at docking facilities in the area nor is there any evidence of what the practice was when the public authority operated the port This factor does not favor awarding the disputed work to a particular group of employees 5 Relative skills Evidence was introduced to indicate that em ployees represented by Truck Drivers Local 449 and by Operating Engineers Local 17/17A/17B were well qualified to do the work Although the record contains no evidence about the skill of em ployees represented by ILA Local 928 we are not prepared to say that ILA Local 928 represented employees are unable to perform the disputed work This factor does not favor awarding the dis puted work to a particular group of employees 6 Economy and efficiency Mirabelli testified that it is more economical and efficient for the Employer to use its own employ ees represented by Truck Drivers Local 449 and Operating Engineers Local 17/17A/17B Mirabelli testified that he was able to assign these employees as needed from other nearby facilities operated by the Employer when they were engaged in similar work, thus providing greater flexibility in schedul ing and economy for the Employer This factor favors awarding the disputed work to employees represented by Truck Drivers Local 449 and Oper ating Engineers Local 17/17A/17B Conclusions After considering all the relevant factors we conclude that the employees represented by Truck Drivers Local 449 and Operating Engineers Local 17/17A/17B are entitled to perform the work in dispute We reach this conclusion relying on the collective bargaining agreements , Employer prefer ence and past practice and the economy and effi ciency of operations In making this determination we are awarding the work to employees represented by Truck Dnv ers Local 449 and Operating Engineers Local 17/17A/17B not to those Unions or their mem bers Scope of the Award The Employer contends that the scope of the award should be broad enough to include all ships and vessels that enter the Gateway Metroport due to the potentially severe economic impact of re peated picketing by ILA Local 928 on the Em ployer and the regional economy Generally in order to support a broad areawide award there must be evidence that the disputed work has been a continuing source of controversy in the relevant geographic area and that similar disputes are likely to recur There must also be evidence that demon strates the charged party has a proclivity to engage in unlawful conduct to obtain work similar to the disputed work We do not believe the record sup ports a broad order We note particularly that the picketing was limited to the Silver Leader and that other vessels entered the port without incident after the picketing S Accordingly our determina tion 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 Buffalo Crushed Stone Inc represented by Truck Drivers Local Union No 449 affiliated with the Brotherhood of Teamsters, Chauffeurs Warehousemen and Helpers of Amer ica affiliated with the AFL-CIO and International Union of Operating Engineers Local 17 17A and 17B are entitled to perform the loading and un loading of ships and the transfer of material onto and off of the dock at the Gateway Metroport Center 2 International Longshoremen s Association, AFL-CIO Local 928 is not entitled by means pro 6 The Employer contends that the absence of ILA Local 928 from the hearing and the failure of that Union to give assurances that further un lawful conduct will be discontinued is evidence of a proclivity to engage in future unlawful conduct with attendant work interruptions We do not consider a lack of participation in Board proceedings as sufficient evi dence on which to make a broad award and ILA Local 928 has not yet failed to give assurances that it will abide by a 10(k) determination 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD scribed by Section 8(b)(4)(D) of the Act to force shall notify the Regional Director for Region 3 in Buffalo Crushed Stone Co Inc to assign the dis writing whether it will refrain from forcing the puted work to employees represented by it Employer by means proscribed by Section 3 Within 10 days from this date International 8(b)(4)(D) to assign the disputed work in a manner Longshoremen s Association AFL-CIO Local 928 inconsistent with this determination