International Longshoremen'S And Warehousemen'S Union, Local No. 151

674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Union, Local No. 151 and, Port Townsend Paper Corporation. Case 19-CD-427 May 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 24, 1985, Administrative Law Judge James M. Kennedy issued the attached decision. The Respondent filed exceptions and a supporting brief; the General Counsel filed exceptions and a supporting brief; and the Respondent filed, a brief in answer to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions only to the extent consistent with this Decision and Order. On July 23, 1984, the Board issued its Decision and Determination of Dispute in the underlying 10(k) proceeding2 in which it found reasonable cause to believe that the Respondent Union had violated Section 8(b)(4)(D) of the Act by filing "in lieu of' claims against signatory stevedoring com- panies that had no control over the disputed work,3 and by making implied threats in support of its jurisdictional claims. The Board then awarded the disputed work to the Employer's employees represented by Local No. 175, Association of Western Pulp and Paper Workers, after considering all relevant factors. On July 30, 1984, the Respondent Union advised the Regional Director that, in accordance with the Board's decision, it "will refrain from forcing or re- quiring [the Employer], by means proscribed by Section 8(b)(4)(D) of the Act, to assign the disput- ed work to employees represented by [it]." The Respondent further stated, however, that it did "not believe that resort to the grievance procedure provided in its collective bargaining agreement . . . is proscribed by Section 8(b)(4)(D)." The General Counsel thereafter issued a com- plaint against the Respondent alleging, inter alia, ' The General Counsel has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings 2 271 NLRB 354 (1984) 3 The work in dispute involved moving goods from the last place of rest on the Employer's premises out onto the dock to the ship's hook that it had failed and refused to comply with the Board's 10(k) decision and that its conduct had an unlawful jurisdictional object in violation of Sec- tion 8(b)(4)(D). After the Respondent filed two ad- ditional "in lieu of' claims between July 30 and September 4, 1984,4 the General Counsel amended the complaint to allege, inter alia, that the Re- spondent had failed and refused to comply with the 10(k) decision by continuing to file "in lieu of claims. The amended complaint further alleged that the filing of the "in lieu of' claims and various al- leged threats by the Respondent were coercive and had an unlawful jurisdictional object in violation of Section 8(b)(4)(ii)(D). The judge considered himself bound, albeit re- luctantly, to apply the Board's then-recent decision in Longshoremen ILWU Local 7 (Georgia-Pacific), 273 NLRB 363 (1984), in which the Board held that the respondent union's filing of "in lieu of" grievances against a stevedoring company, which was bound by a collective-bargaining agreement with the union, but which had no control over the disputed work, had an unlawful jurisdictional object and amounted to prohibited economic coer- cion. Thus, while specifically noting the absence of evidence here showing that the Respondent had made any threats in order to induce the Employer to assign the disputed work to employees it repre- sents, the judge found that the Respondent's pur- suit of "in lieu of' grievances in contravention of the Board's 10(k) award was violative of Section 8(b)(4)(ii)(D) and, further, that the Union's July 30, 1984 letter to the Regional Director did not prom- ise full compliance with the 10(k) award. Subsequent to the issuance of the judge's deci- sion, however, the Board in Georgia-Pacific IIS re- considered its decision in Georgia-Pacific I, above, to the extent that it held that a union violates Sec- tion 8(b)(4)(D) by filing grievances seeking "in lieu of' pay before the Board makes a 10(k) determina- tion. The Board found in Georgia-Pacific II that the grievances there did not constitute coercion be- cause they were arguably meritorious.6 In so con- cluding, the Board emphasized in Georgia-Pacific II that our national labor policy, as set out in Section 203(d) of the Act, encourages resort to the griev- ance-arbitration procedure as the preferred method of resolving labor-management disputes. The Board also stressed there that in Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1963), the Supreme Court spelled out its view that the grievance-arbi- 4 On September 4, 1984, a Federal district court issued an injunction against the Respondent barring it from filing further "in lieu or' claims 5 291 NLRB 89 (1988) 6 The Board noted that an arbitrator, in fact, had found the grievances to be meritorious 294 NLRB No. 52 LONGSHOREMEN ILWU LOCAL 151 (PORT TOWNSEND) tration process has a major role to play in settling jurisdictional disputes .7 The reasoning of Georgia- Pacific II is fully applicable here, and we, there- fore, find that the Respondent's filing of arguably meritorious pre-10(k) grievances did not violate Section 8(b)(4)(D) of the Act. Furthermore, we agree with the judge, for the reasons he stated, that the Respondent's alleged im- plied threats, standing alone, do not rise to the level of an 8(b)(4)(D) violation. We therefore find that a violation of Section 8(b)(4)(D) has not been established here and we shall dismiss the complaint. Further, in view of our decision , we find, contrary to the Board's decision in the underlying 10(k) pro- ceeding, that there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated . Accord- ingly, we also shall vacate our earlier Decision and Determination of Dispute , and quash the notice of hearing. 8 ORDER It is ordered that the complaint is dismissed. IT IS FURTHER ORDERED that the Decision and Determination of Dispute, 271 NLRB 354 (1984), is vacated and the notice of hearing is quashed. CHAIRMAN STEPHENS, dissenting in part. Although our decision in Georgia-Pacific II re- solves the issue of the lawfulness of the time-in-lieu claims filed prior to the issuance of the underlying 10(k) award, it does not definitively settle the status of the claims that were filed by the Respondent on July 30 and September 4, 1984. Under principles established in Longshoremen ILWU Local 32 (Weyerhaeuser Co.), 271 NLRB 759 (1984), enfd. 773 F.2d 1012 (9th Cir. 1985), and left intact in Georgia-Pacific II, time-in-lieu claims that conflict with, and are filed subsequent to, a 10(k) award violate Section 8(b)(4)(ii)(D) of the Act. Although one could argue that those claims should not be found unlawful because we have now vacated the original award as not based on a proper reading of the statute, I would nonetheless find them to constitute unlawful coercion. At the time the award was issued and until such time as it 7 Furthermore, the Board specifically found that Carey was not distin- guishable on the ground that there , unlike the case before it, the employ- er against which the grievance was filed controlled the assignment of the disputed work Rather, the Board found that the national labor policy en- couraging the private resolution of disputes was implicated equally in either situation 8 Given the change in the law reflected in Georgia-Pacific II, the under- lying dispute that triggered the 10(k) mechanism here would not have done so today We therefore find that it would not effectuate the pur- poses and policies of the Act to find that the Respondent 's in lieu of claims filed subsequent to the 10(k) award violated Sec 8(b)(4)(u)(D) We further note that Board orders are not self-enforcing , and that, until such orders are enforced by a United States court of appeals , no penalties are incurred for disobeying them 675 might be vacated either actually or effectively by the Board or a reviewing court, the award would take precedence over any inconsistent arbitral award. In my view, the Respondent was therefore precluded, in the interim, from filing contractual time-in-lieu claims in conflict with it. See U.S. v. Mine Workers, 330 U.S. 258, 293-294 (1947). Accord, Walker v. City of Birmingham, 388 U.S. 307 (1967). James C. Sand, for the General Counsel. Richard S. Zuckerman (Leonard & Carder), of San Fran- cisco, California, for the Respondent. William T. Grimm (Donworth, Taylor & Co.), of Seattle, Washington, for the Charging Party. DECISION JAMES M. KENNEDY, Administrative Law Judge. This case was tried' before me at Seattle, Washington on Oc- tober 31, 1984,2 pursuant to a complaint issued by the Regional Director for Region 19 of the National Labor Relations Board on August 8, amended on October 22, and which is based upon a charge filed on February 9 by Port Townsend Paper Corporation. The complaint al- leges that International Longshoremen's and Warehouse- men's Union, Local No. 51 (Respondent) has engaged in certain violations of Section 8(b)(4)(ii)(D) of the National Labor Relations Act (the Act). Connected to the com- plaint is the Board's Decision and Determination of Dis- pute decided under Section 10(k) of the Act on July 23.3 Issues The principal issue presented is whether or not Re- spondent has engaged in conduct prohibited by Section 8(b)(4)(ii)(D) in order to obtain an assignment of certain work at Port Townsend Paper Corporation's Port Town- send, Washington dock. In support of its complaint the General Counsel has offered certain testimonial evidence, a stipulation of fact, and a letter from Respondent's counsel which the General Counsel asserts is evidence of noncompliance with the Board's 10(k) award. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. The General Counsel and Respondent have filed briefs and they have been carefully considered. Based on the entire record, as well as my observation of the witnesses and their demeanor, I make the follow- ing i The General Counsel's motion to correct transcript is granted with the observation that it is incomplete Even as corrected numerous errors remain 2 Unless otherwise indicated all dates are 1984 3 Longshoremen ILWU Local 151 (Port Towsend Paper), 271 NLRB 354 (1984) 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT, 1. INTERSTATE COMMERCE Respondent admits that Port Townsend Paper Corpo- ration is a State of Washington corporation having its headquarters in Port Townsend where it is engaged in the business of manufacturing paper and paper products and' that during the past 12 months,,, a representative period, it has sold and shipped goods and services valued in excess of $50,000 to customers within the State who themselves meet a Board jurisdictional standard of either direct inflow or direct outflow. Accordingly, Respond- ent admits that Port Townsend Paper Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits that it is and has been a labor orga- nization within the meaning of Section 2(5) of the Act. It further admits that Local No. 175, Association of West- ern Pulp & Paper Workers is also a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The amended complaint alleges that Respondent has violated Section 8(b)(4)(ii)(D) of the Act. That section prohibits labor organizations from engaging in work as- signment disputes through the use of threats, coercion, or restraint. The text of that section, including subsection (i), is set forth in the footnote below.4 To prove the alle- gation, the General Counsel has offered evidence tht Re- spondent, through certain individuals, made implicit threats to the stevedore company to the effect that it must hire "witnesses" employees to avoid a work stop- page at the Port Townsend Paper Corporation dock. In addition, the complaint alleges that Respondent's filing of claims under the collective-bargaining contract between it and the stevedore company constitutes restraint and coercion as defined by subsection (ii) or Section 8(b)(4). It also asserts that Respondent has failed to comply with the award issued by the Board under Section 10(k) of the Act by continuing to file wage claims under the collec- tive-bargaining agreement between it and the stevedore company. 4 (b) It shall be an unfair labor practice for a labor organization or its agents- (4)(1) to engage in, or to induce or encourage any individual em- ployed by any person engaged in commerce or in an industry affect- ing commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, or (n) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is= (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work [Emphasis added ] The proof in support of these allegations is in two parts. The first part, involves an apparent factual dispute. The second part does not and is set forth in a stipulation. Chronologically it is convenient to deal first with some background material, followed by the factual dispute, then the stipulation. A. Background and Participants Port Townsend Paper Corporation commenced doing business in late 1983. It took over a pulp manufacturing plant located in Port Townsend, which had previously been operated by Crown Zellerbach Corporation. Con- nected to the plant is a wharf at which seagoing vessels on-load the plant's products, principally unbleached cel- lulose pulp and unbleached paper. Between ships these products are warehoused near the wharf. The plant's employees are represented by Local No. 175, Association Western Pulp and Paper Workers (AWPPW). Port Townsend Paper, when it took over the plant from Crown Zellerbach, had hired a majority of Crown Zellerbach's employees who had also been represented by AWPPW. During Crown Zellerbach's ownership, that firm had assigned the work of delivering the plant's products to shipside to its own employees represented by the AWPPW. At that point the stevedore company's employees represented by Respondent had picked up the cargo from shipside and loaded it onto the ships using various equipment. When Port Townsend Paper began operating the plant, it desired to continue the practice of using plant employees to take the product from the storage area to shipside. The stevedore companies, usually Stevedore Services of America (SSA), although on one occasion Jones- Washington Stevedore Co, are invariably! members of the Pacific Maritime Association. PMA is a multiemploy- er group which bargains collectively with the Interna- tional Longshoremen's and Warehousemen's Union and its various locals, including Respondent The collective- bargaining agreement under which it operates is known as the Pacific Coast Longshore Contract Document (PCLCD). The PCLCD contains a no-strike clause and establishes a permanent on-call grievance and arbitration procedure. In addition, Respondent has no recent history of having engaged in any strikes or work stoppages. SSA's president, Frederick Smith, was aware of that his- tory. The record reflects, through his testimony, that his firm, and presumably the other PMA stevedore compa- nies, is hired by brokers, steamship lines, or trading com- panies. Thus, the stevedore company has no direct rela- tionship to the shipper, Port Townsend Paper Corpora- tion. Undoubtedly, the steamship line has a direct rela- tionship to Port Townsend Paper but that relationship is not under scrutiny here. Respondent has its headquarters in Port Gamble, Washington, some 30 miles from Port Townsend. The employees it represents work at docks and piers in at least those two ports and perhaps others in northern Kitsap County. Its secretary-treasurer is Archie Smith. Although it is not clear that Archie Smith is the chief executive officer of the Respondent Union , his signature appears on two letters which are in evidence. They will LONGSHOREMEN ILWU LOCAL 151 (PORT TOWNSEND) be discussed below. Respondent is assisted on occasion by Richard Wise, an International representative of the International ' Longshoremen's and Warehousemen's Union. He is officed in San Francisco. Both Archie Smith and Wise are admitted to be agents of Respondent. Richard D'Agostino is now the resident manager of Port Townsend Paper Corporation. At the time the dis- pute began he was its employee relations manager. Mary Schroeder is the company fiber supply and transporta- tion manager. Respondent's Archie Smith, along with union labor re- lations committee member Jack Freitas, had a face-to- face meeting with D'Agostino, Schroeder, and the previ- ous resident manager, Truman Sturdevant, on February 7 or 8. On February 9, SSA's Frederick Smith and Inter- national Representative Wise had a telephone conversa- tion. Both will be discussed below. B. Preliminaries The alleged factual dispute involves the first ship to arrive at the Port Townsend Paper dock shortly after it began to operate the mill. The ship was the Rio Chico, owned and operated by the Norsk Pacific Steamship Line. It was scheduled to arrive at the dock on February 9. Long before the first ship was scheduled to arrive, indeed during transition period from Crown Zellerbach to Port Townsend Paper, Respondent began to inquire about the manpower to be utilized at the dock. By letter dated November 16, 1983, union secretary Archie Smith wrote a letter to the president of Port Townsend Paper requesting a meeting "to discuss the change over [sic] to a new owner operation . We are suggesting this meeting to discuss future man power [sic] needs and a successful program for this new operation that would benefit both the Port Townsend Paper Corporation and Local 51." Port Townsend Paper officials did not immediately reply. By early February Respondent had become aware of the pending arrival of the Rio Chico. No doubt because Port Townsend Paper had not responded to the earlier letter, Respondent's secretary Smith wrote a letter dated February 2, 1984, to PMA's Craig Johnson concerning that ship's arrival. He stated, "The union is of the under- standing that bulldriving [forklift driving] from place of rest in the Port Townsend Paper Company to shipside will be performed by ILWU bulldrivers. If this is not the case then we will a request a joint labor relations com- mittee meeting on the start of this ship." He concluded by asking that the area arbitrator be alerted in case he was needed. C. Local 51 Meets with Port Townsend Paper The meeting between union secretary Archie Smith and the Port Townsend Paper Company officials oc- curred on either February 7 or 8. The company officials believe it was on the 7th; the Union believes it was on the 8th. The actual date is inconsequential. Both employ- ee relations manager D'Agostino and fiber supply man- ager Schroeder testified on behalf of Port Townsend Paper Company. Then-plant manager Sturdevant is no 677 longer with the mill and did not testify, although he may have testified in the 10(k) proceeding 5 The meeting ap- parently resulted from Respondent's November 16, 1983 letter to the mill as well as its February 2 letter to PMA. In any event the meeting was actually called by Port Townsend Paper officials. According to D'Agostino, Sturdevant asked Archie Smith and Freitas why the Union had sent the letter asking for the meeting. He says Smith replied that since Port Townsend Paper was a new company they wanted to talk about arrangements for handling cargo at their dock. According to D'Agostino, Archie Smith "indicat- ed to us that they were hoping that we could reach some kind of agreement as to who would handle the cargo from the place of rest to the boat." As none of the Port Townsend Paper officials were very familiar with either the procedures or the devices to be used, Sturdevant asked about several manning requirements on different pieces of equipment. Smith told him the manning varied depending on what the PCLCD called for as refined by various arbitration rulings. There were discussions re- garding several devices including the robot cage and the Cranston bar, both automated and manual. D'Agostino recalls that Smith told Sturdevant that the manning required would depend on who was doing the bulldriving. According to D'Agostino, Smith told him that if the longshoremen were doing the bulldriving six people would be required on each crane, but if the bull- driving was done by Port Townsend Paper personnel then eight people would be required. D'Agostino said those numbers did not add up so he asked Smith to explain why more people would be re- quired. But at that point Sturdevant interrupted telling Smith and Freitas that Port Townsend Paper was a brand new company which had taken over art unprofit- able operation. He said the Company wished to operate the facility in the most cost-effective manner, that the Company intended to do its own bulldriving, and would follow the procedures which had been utilized when Crown Zellerbach had operated the mill. Archie Smith responded he felt it would be better if he did not discuss the issue any further and suggested that the Company meet with the Union's International representative on February 13 (a date after the departure of the Rio Chico). D'Agostino agreed, however, that during the conver- sation either Smith or Freitas told him that Respondent "would man the operation as ordered by the Stevedoring Services of America." Furthermore, D'Agostino conced- ed that Sturdevant even asked the Union if there would be a work stoppage if Port Townsend Paper used its own bulldrivers. One of the union officials replied there would be no such stoppage, that under the PCLCD they didn't have the right to call one. Schroeder's testimony is quite similar pointing out that Sturdevant asked about the various types of equipment to be used at the Port Townsend lock and that Archie Smith had replied that there were many types which could be used. She said they had a discussion during which Smith advised that depending on the equipment s The 10(k) record is not before me 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the manning requirements could vary quite a bit. For the Jenson sling she recalled Smith saying that 8 to 10 people would be needed and for the- robot cage any- where from 8 to 10 or 12 . With respect to the Cranston bar, Smith said it could take any number of people and he was not quite sure. Regarding the automatic Cranston bar, Smith replied, according to Schroeder, "Well, if we took the cargo from the place of rest, we could do it with six people." She said D'Agostino then pursued asking "But how many people do you use at Port Town- send with an automatic Cranston bar ? Don't you use eight?" Smith replied, "Yes, we use eight because we are entitled to use eight through past arbitration decisions but if we took the cargo from the place of rest, we could do it with six." Sturdevant then interjected saying the Company intended to operate the most efficiently and would use its own employees. Smith said, "Well, then we will have to take a look at it." Sturdevant asked if that meant the Union would not load the ship but Smith replied, "No. We always load the ships." Sturdevant also asked how many people the longshoremen would bring to load the ship and Schroeder reports Smith replied, "However many people are requested by the stevedoring company." Local 51's Archie Smith testified that Respondent has no control over the number of men that are sent to a particular job because that decision is made by the steve- dore company . He also testified that during the meeting with the Port Townsend Paper officials Sturdevant asked the purpose of the November 16 letter . He replied, "Well, what the letter states is what we are here for." He says Sturdevant then went into discussing the various devices and manning that would be used on future ships as well as the practice that the Union had followed when Crown Zellerbach operated the plant. He remembers D'Agostino asking about different devices including ropes," slings, Jenson lines, clamps , robots, and Cranston bars. He says that D'Agostino utilized the blackboard but only wrote Jenson slings and Cranston bars on it. Then he asked what the manning was on each device. Smith says he replied that 10.26 gangs varied from 8 to 14. D'Agostino also asked about robot manning and Smith replied it required six. Smith says other mannings were discussed but because there are over 150 mannings up and down the coast he could not answer most of D'Agostino's questions. Smith did explain to the company officials how Crown Zellerbach had operated in the past. He observed that there had been two arbitrations involving the Port Townsend dock and in essence he wanted the Port Townsend Paper Corporation officials to be aware of those arbitrations.' He noted that since the 1981 arbitra- tion Crown Zellerbach had chosen to use a 10.2 gang in- stead of changing their operation. Smith says he told the company officials that if they hired a robot gang or an- other gang known as an ME 11, the Union would refer the manning question back to the arbitrator. Smith remembers Sturdevant asking if there would be any problems on the ships on account of their people 6 A reference to a PCLCD clause 7 Copies of both decisions are in evidence driving the bull or if they hired an M letter or a T letter gang. Smith says he replied that work stoppages, were not permitted under section 11 of the PCLCD and the Union was bound to have no work stoppage and had to resort to the arbitration procedures set forth in section 17 of that contract . Smith also says he never told the Com- pany that he was there to get an agreement on who would take the cargo from the place of rest to the hook. He says that work is determined by the stevedore com- pany. Archie Smith was cross-examined ' by the General Counsel with respect to the various gangs generally as- signed to different pieces of equipment . Frankly, the questions were highly technical and lacking specific de- scription . Smith's answers were in kind. The general upshot is that despite D'Agostino's and Schroeder 's testi- mony that smaller crews could be utilized if the bulldriv- ing were done by the ILWU , there is a substantial proba- bility that they did not fully understand what Smith was actually saying . The contract does provide for wide var- iances of manning on different pieces of equipment. In fact, for the first ship the equipment differed for each hold. On one, there was an automatic Cranston bar and on the other there was a manual Cranston bar. Obviously the manning requirements would be different for similar, but not identical equipment. Even so, whatever the discussion was with respect to the different mannings, it is clear, by D'Agostino's and Schroeder's own testimony, that Archie Smith told them that there would be no work stoppage and that Respond- ent would work the ships as directed by the stevedore company . In fact, there was not even any discussion what the Union might seek by way of an arbitration pro- ceeding-one which was then only hypothetical. Thus, I conclude that even if Archie Smith told the company officials that the crews could be smaller if the ILWU performed the dockside bulldriving , he also said there would be no strike or work stoppage if they did not. Thus, any restraint or coercion which may be seen from the carrot sans stick approach described by D'A- gostino and Schroeder was offset in full by the fact that there was to be no disruption of the loading. The best that can 'be said for the General Counsel's proof here is that he has demonstrated that if the bulldriving remained with the Port Townsend Paper employees that Respond- ent would utilize its grievance procedure to seek a remedy for what it perceived as a violation of its collec- tive-bargaining agreement with PMU. In conclusion, at no time during this conversation with either a stevedore company representative or with Port Townsend Paper Company did any of Respondent 's offi- cials or agents suggest that a work stoppage or job action would occur if the bulldriving were not assigned to employees represented by Local 51. D. SSA Calls the ILWU SSA's Frederick Smith testified that he had had sever- al conversations with Dick Wise of the ILWU in San Francisco regarding the arrival of the first ship at the Port Townsend Paper dock . The conversations originat- LONGSHOREMEN ILWU LOCAL 151 (PORT TOWNSEND) ed by his telephone call to Wise sometime during the first week in February ,. Frederick Smith testified that his firm had recently lost a manning arbitration in Aberdeen, Washington, involv- ing another ILWU Local and also involving a similar so- called industrial dock owned by another company. He was aware that Port Townsend Paper wanted to use its own employees to drop the product at the ship's loading tackle. In his view, the issue was exactly the same as that he had faced in Aberdeen. He told Wise of his view and the problem he was having in contracting for the dock- side forklift work. He remembers telling Wise that he had learned from Norsk Pacific, the steamship line which was hiring SSA, that the mill was "adamant"; that they wanted to service the hook with their own employees. He told Wise, "Dick, if at all possible, we should let it happen that way." He did not recall anything that Wise said in that conversation. Apparently Wise simply lis- tened. On the day before the arrival of the ship, Frederick Smith again called Wise. He told Wise that in his opinion his stevedore firm would lose any arbitration which might occur in Port Townsend because it was the same issue he had just lost in Aberdeen. Therefore, he advised Wise that SSA would order four lift truck operators to service the two gangs which had already been ordered. He concluded saying, "Dick I hope we don't have any problems." He could not recall whether he used the phrase "work stoppage." Smith does remember saying, "We are going to order the four guys and we are look- ing forward to a good job with this ship and I hope that the Local would do everything in their power to see that she goes' well because we were concerned about getting back and getting that work." Smith said Wise assured him he felt that since SSA had ordered the four men there would not be any problems Smith says he believes both he and Wise understood that the four employees would not actually perform any work. Nonetheless, Smith was unable to testify that Wise had said or done anything other than listen to his resolution of the problems Smith perceived he would have if he did not order the four men. There is absolutely no evidence that Wise suggested he order the additional men or that Wise said anything whatsoever regarding a work stop- page Smith did testify that ordering the additional four employees cost his firm approximately $250 per man, a total of $1000. He reiterated his view that it was clear to him that his firm would lose any arbitration which might take place and explained that he has an obligation to comply with the PCLCD. He testified that after consult- ing with his operating manager, he decided that going through such an arbitration would be futile. According- ly, he decided to order the four additional forklift driv- ers. On cross-examination Frederick Smith conceded that the decision regarding how many men to order from the union hiring hall is made by his stevedore company, not by Respondent. He further admitted that at no time did Wise ever tell him that if the bulldrivers were not or- dered there would be a work stoppage or any other kind of job action. Nor did Wise ever tell Frederick Smith 679 that there would be problems of any kind if his firm did not order the bulldrivers. The General Counsel argues from this state of affairs that Wise was making an implied threat of some sort of job action if the four bulldrivers were not ordered. Yet, Frederick Smith's own testimony belies that He was well aware that he had lost an arbitration in Aberdeen and feared he would lose a similar one in Port Town- send. Moreover,' he knew Respondent had not engaged in a work stoppage in recent memory and that a work stoppage was entirely unlikely. Thus, he simply made a decision, based upon his own perception of his contrac- tual obligations, to order the men he believed the PCLCD required. Thus, even assuming that Wise was speaking on behalf of Respondent during the call, he did nothing which would constitute even a request for the work, much less engaging in any threat of restraint or coercion to obtain it. He simply listened to Frederick Smith as Smith thought out loud reaching the conclusion that he would order the proper number of men through the hiring hall. I am well aware that PMA stevedore companies such as SSA are principally labor brokers and their interest is closely aligned to that of the ILWU and its locals. Be- cause of that relationship, I have scrutinized carefully Smith's testimony to determine if there is an implied threat emanating from an agent of Respondent. Despite their close relationship and their common interest I can find none in this testimony. Accordingly, I conclude that the General Counsel has failed to prove allegations of paragraphs 9(c) and (d) of the amended complaint. Spe- cifically those paragraphs assert that on or about Febru- ary 8 Respondent coerced SSA into calling for the "wit- ness" employees and that Wise implicitly threatened Smith to hire the witness employees to avoid a work stoppage. There simply is no proof to that effect. What- ever Frederick Smith may have thought likely to occur was generated by his own recent experience involving another local in another port. Wise simply responded that if the proper number of employees was ordered, he had no problems Accordingly, Respondent's motion to dismiss paragraph 9(d), made at the hearing, is granted. E Facts Not in Dispute 1. The February 9 loading In addition to Respondent's Secretary Archie Smith's two letters referred to above as well as the PCLCD itself, the parties have stipulated that under that agree- ment on February 13 the Port Gamble Joint Port Labor Reations Committee met by telephone and that the minute which resulted is admissible and accurately sets forth what actually occurred on February 8 regarding the assignment of longshoremen to work the Rio Chico loading of February 9. According to that minute, on February 8, SSA or- dered two T-145 gangs, four extra men and six dockmen for an 8 a.m. start on February 9. The dispatcher asked if ILWU dock bulldrivers were to be hired. The SSA offi- cial replied they would not. The dispatcher then advised that SSA would be in violation of a 1982 arbitrator's 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD award. Half an hour later Respondent notified PMA that it wanted a Joint Port Labor Relations Committee meet- ing with respect to the manning. Shortly thereafter the area arbitrator was alerted. At 2 p.m., on February 8, an SSA official advised the Union that if it pursued the bull- driving on the dock the ship might be pulled out and ev- eryone would lose the work. He then advised that he would call when the Joint Port Labor Relations Com- mittee meeting was to be held later that afternoon and asked if it was all right to bring the arbitrator along. At 5:25 p.m., while awaiting the convening of the Joint Port Labor Relations Committee meeting, the SSA official ad- vised the dispatcher to send four dock bulldrivers. As a result, the Joint Port Relations Committee meeting was called off for that evening. Later the Union checked with the arbitrator regarding another issue which was also to be put before him, the question of whether or not the Port Townsend Paper dock was a "new operation" within the meaning of the PCLCD. The arbitrator advised the delay of the meeting would give the parties a chance to resolve that issue. Sometime later PMA was advised that the four dock bulldrivers had been ordered by SSA and thus in SSA's opinion that act had eliminated the necessity for an LRC meeting because it was now complying with the earlier arbitration awards. The ship was loaded the following day. The four bull- drivers dispatched by Respondent were present during the loading but did not take part in it. All the bulldriving on the dock was done by employees of Port Townsend Paper Corporation represented by the AWPPW. 2. Subsequent ships Thereafter, on various dates in March, April, June, July, and August, six, more ships called at the dock and in each the stevedoring company involved, usually SSA but on one occasion Jones-Washington, declined to call for bulldrivers. In each instance Respondent, under the PCLCD, filed wage claims for the work. These were known as "in lieu of or "shortage" claims pursuant to standard practice under the PCLCD and relevant letter agreements and arbitration awards seeking the estab- lished remedy under the contract for claims of lost work opportunity. The shortages claimed are for the amount of wages employees represented by Respondent would have been paid had the stevedore company ordered longshore bulldrivers from the hall. In some cases, but not all, the stevedore company made payments on those claims prior to September 4, when an injunction was issued against Respondent by the United States District Court for the Western District of Washington barring Respondent from filing further "in lieu of' payments for such work pending the outcome of this litigation. The stipulation further recites that of the five ships serviced during that time by SSA, four were serviced under a contract with Norsk Pacific and one vessel was serviced by contract with the ship's agent. The one ship which was serviced by Jones-Washington was performed under a contract with Sino-Chart Steamship Line. In the cases involving the Norsk Pacific ships Rio Chico and Rio Caribe, loading was done with the Cranston bar rig; T-45 manning was specified. The two other ships, both owned by Sino-Chart, required hand stowage of cargo. The manning was performed under article 10.2 of the PCLCD. 3. Respondent's letter to the Regional Director The Board's Decision and Determination of Dispute, the 10(k) award in this matter, required Respondent to notify the Regional Director for Region 19 whether or not it would comply. By letter dated July 30, Respond- ent's counsel advised: In connection with the Board's 10(k) decision in the above case, please be advised that ILWU Local No. 51 will refrain from forcing or requiring Port Townsend Paper Corporation, by means proscribed by Section 8(b)(4)(D) of the Act, to assign. the dis- puted work to employees represented by Local 51. The Union does not believe that resort to the griev- ance procedure provided in its collective bargaining agreement with Pacific Maritime Association is pro- scribed by Section 8(b)(4)(D) of the Act. The amended complaint asserts that this letter is insuffi- cient to constitute compliance with the award. IV. ANALYSIS AND CONCLUSIONS I think it is clear that the Union at all times had the intent to either obtain the disputed work for employees represented by it or to have those employees paid for the work even if they were not assigned to actually perform it. Clearly Respondent's letter of November 16, 1983, and its meeting in early February with the Port Town- send Paper officials was designed to obtain the work. "Manpower" was the principal purpose. Since Respond- ent did not actually represent any of Port Townsend Paper Corporation's employees and since the work in- volved has historically been performed by ILWU per- sonnel elsewhere and since the letters and the meeting would have no meaning whatsoever if the work assign- ment issue was not the topic, I conclude that it is indeed the Union's purpose to try to obtain the dockside bull- driving work. This conclusion is further buttressed by Respondent's later request for Port Labor Relations Committee meeting as well as its alerting an arbitrator on February 8 pending the arrival of the ship. In its request for the LRC meeting, it advised both PMA and SSA that dockside bulldrivers had not been ordered. As Re- spondent knew that work had to be performed, and as it was asserting a contractual claim for the work with the PMA contractor, I must conclude that Respondent's pur- pose was to obtain that work. However, to say that Respondent desired that work for the employees it represents is not to say that it en- gaged in illegal conduct to obtain it. Quite clearly, the Supreme Court has held that simple appeals or requests to management to make business decisions benefiting the labor organization's bargaining unit do not fall within the category of threats, coercion, or restraint. NLRB V. Ser- vette, Inc., 377 U.S. 46, 54 (1964). Thus, union secretary Archie Smith's conversations with the Port Townsend Paper officials containing, as it did, the clear statement LONGSHOREMEN ILWU LOCAL 151 (PORT TOWNSEND) that the Union had no intention of striking and would work the ship, rendered any other statement he made into a simple appeal for the work. This is so because tra- ditionally the threats, restraint, and coercion prohibited by subsection (ii) of Section 8(b)(4) have always been, with certain limited exceptions, related to threats or action defined as nonjudicial act of self-help.8 This would include, of course, the threat of picketing, actual picketing, work stoppages, inducements of employees to engage in work stoppages, or other job actions. Since Archie Smith was careful to assure the Port Townsend Paper officials that no nonjudicial self-help would be ex- ercised during the loading of ships at the dock, the tradi- tional fear of self-help conduct was not present. Indeed, Smith went out of his way to point out that Local 51 would be breaching its contract if it engaged in such conduct and to assure the Company that the ship would be worked no matter what crews were ordered from his hiring hall by the PMA stevedore company. In fact, paragraph 9(b) of the complaint implicitly rec- ognizes the lawfulness of Smith's conduct here. It alleges that during the meeting Smith demanded the work in question by "threaten[ing] that Respondent would . . . achieve the same total cost to [Port Townsend Paper Corporation] by other means under its agreement with the PMA." Thus the complaint does assert that Smith made any statements at the meeting which under traditional analysis would constitute subsection (ii) conduct Instead, the theory is that Smith's statements advising the Port Townsend Paper Corporation officials that he would resort to the grievance procedure in order to obtain "the same total costs" is the conduct alleged to be violative of subsection (ii). As there has never been even so much as a threat of a work stoppage, it would appear that under traditional analysis the Board's invocation of the procedures under Section 10(k) was inappropriate, for under that analysis there was no probable cause to believe that a prohibited jurisdictional dispute was actually ,occurring. However, the Board in the 10(k) proceeding looked instead to the fact that Respondent was asserting a con- tractual claim under the PCLCD that SSA was obligated to hire dockside bulldrivers and was therefore applying indirect pressure on Port Townsend Paper Corporation to change the work assignment. Moreover, it pointed out that Respondent's invocation of the Port Labor Relations Committee meeting was "designed to satisfy its jurisdic- tional claims." As a result, it made a finding of probable cause. However, it does not appear that Archie Smith's assur- ance that there would be no work stoppages was before the Board in the 10(k) proceeding. Moreover, two of the Charging Parties' own witnesses now agree that such as- surances were made. Had the Board been aware of this evidence it seems likely that probable cause would not have been found, at least under additional analysis. Yet there is that language in the 10(k) decision, just referred to, which suggests that a union seeking to enforce a con- tractual claim for certain work made to its own employ- er will necesarily have an indirect economic effect on 681 Port Townsend Paper and that such impact is sufficient to invoke Section 10(k). I think it is fair to say, therefore, that even as recently as July 23, 1984, when the Board issued its 10(k) deci- sion, that the Board had never squarely held that resort to the grievance procedure in a collective-bargaining contract constituted subsection (ii) conduct standing alone. The closest cases, Teamsters Local 85 (Pacific Mar- itime), 224 NLRB 801 (1976) and Longshoremen ILWU Local 32 (Weyerhaeuser Co.), 271 NLRB 759 (1984), were both triggered by acts of self-help. In Teamsters Local 85, a union representative threatened to shut down the job before resorting instead to the grievance procedure. In fact the grievances there were seen as palpably without merit under the collective-bargaining contract. Thus, the coercive nature of the conduct was clearly visible. In Weyerhaeuser the employees engaged in a 45-minute work stoppage to protest the work assignment. Again traditional coercion is plain to see. But similar facts are not present here. However, on December 14, 1984, approximately 6 weeks ago, the Board decided Longshoremen ILWU Local 7 (Georgia Pacific), 273 NLRB 363, 366 (1984). There the Board said- Inevitably, to avoid the continuing imposition of such a wage liability, Bellingham Stevedoring would cease doing business with the employer or otherwise exert pressure on the employer to force or require the employer to change its assignment of work. 10 , In these circumstances, we find that ILWU has used the filing of "in lieu of" grievances under the PCLCD as 'an economic device against Bellingham Stevedoring with an object of forcing or requiring the employer "Georgia-Pacific" to assign the dis- puted work to ILWU members." We further find that ILWU's conduct in filing the "in lieu of griev- ances amounted to prohibited economic coercion. i 2 10 [ILWU Local 32 (Weyerhaeuser Co), 271 NLRB (1984)) JD slip op at 7 11 Id 12 See Teamsters Local 85 (Pacific Maritime), 224 NLRB 801, 805-808 (1975) See also Weyerhaeuser, above, JD slip op at 8 Thus, until the Board decided Georgia-Pacific it had never held that the simple use of the grievance proce- dure constituted (ii) conduct . Indeed, absent that decision it seems to me that dismissal of this complaint would early be warranted , for the Union here has engaged in no traditional (ii) conduct. Furthermore, it would appear until Georgia-Pacific there had been a public policy favoring the parties' utiliz- ing the courts prior to engaging in economic self-help. Generally speaking, of course, it has always been public policy to favor the use of grievance -arbitration proce- dures. That policy has received the express approval of both the Board and the Supreme Court. See the Steel- 8 Ets-Hokin Corp, 154 NLRB 839, 842 (1965) 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD workers trilogy.9 Even more directly , dealing .with this question is the Board's decision in Retail Clerks Union Local 770 (Hughes Markets), 218 NLRB 680 (1975). In that case the General Counsel had alleged that the union had violated Section 8(b)(4)(ii)(A), rather than 8(b)(4)(ii)(D) as here, in filing a lawsuit to force a clause in a collective-bargaining agreement which violated Sec- tion 8(e) of the Act. The Board concluded "Respond- ent's conduct in resorting to the courts to confirm the ar- bitrator's award was done in good faith to enforce a co- lorable contract right and was not the kind of tactic cal- culated to restrain employees or employers in the exer- cise of rights guaranteed by the Act." The Board there- upon dismissed the complaint with respect to the lawsuit being (ii) conduct. Here, too, at least until the issuance of the 10(k) award, Respondent had a colorable contract claim. Indeed this case, like Hughes Markets, even has a second- ary effect feature. In addition Respondent here was rely- ing on similar arbitration awards or the past . The instant claim, therefore, cannot be said to be without colorable merit. Obviously, if the Hughes Markets rationale had been applied to either Georgia-Pacific or the 10(k) portion of the instant case, no violation would have been found . i ° Moreover, the Board has even held in a straight 8(b)(4)(D) case that pursuit of similar wage claims by the union not assigned the work does not violate the juris- dictional dispute prohibitions of the Act. In Sheetmetal Workers Local 49 (Los Alamos Constructors), 206 NLRB 473, 476-477 (1973), the Board said- The sole issue in this case is whether . Re- spondent's pursuit of a monetary award in the con- tractual grievance proceedings - and its announced intention to initiate a Section 301 suit for enforce- ment of its collective-bargaining agreement with the Employer constituted coercion within the meaning of Section 8(b)(4)(11)(D) . . . . In this case, Re- spondent has totally refrained from engaging in any nonjudicial acts of self-help . . . . All that Re- spondent did was to explicitly follow the proce- dures set forth in article X of its contract with Re- spondent. . . In response to the Employer's deci- sion to award the disputed work to another craft, Respondent filed a grievance in accord with the provision of article X of its contract with the Em- ployer, which action we find it had a lawful right to undertake. The Board has not overruled either Hughes Markets or Los Alamos Constructors on these points and it appears to me that Georgia-Pacific is in direct conflict with those two cases . The principal distinction is that in Georgia-Pa- cific, the employer, bound by the collective-bargaining 9 Steelworkers v American Mfg Co, 363 U S 564 (1960), Steelworkers v Gulf Navigation, 363 U S 574 (1960), Steelworkers v Enterprise Corp, 363 U S 593 (1960) 10 Compare Northeast Indiana Building Trades Council (Centhvre Vil- lage Apartments), 148 NLRB 854, 857 (1964) There the Board clearly held that self-help enforcement of a construction industry hot cargo clause violated Sec 8(b)(4)(u)(B), and that resort to lawsuit was the only means to enforce it If a lawsuit does not violate subsec (u) in that con- text, it seems anomalous to hold that it does here contract, the PMA stevedore contractor, had no actual control over the assignment of the work. * That" issue is not present in either Hughes Markets or Los Alamos Con- structors. Yet, the power of control question does not seem to bear upon the question of whether or not resort to pre judicial or judicial conduct can violate subsection (ii). Accordingly, I believe these cases to be in irreconcil- able conflict The test for coerciveness now being ap- plied by the Board is whether the wage claim has colora- ble merit, thus avoiding the holdings of Hughes Markets and Los Alamos Constructors. Yet, the Supreme Court in Bill Johnson's Restaurants, v. NLRB, 461 U.S. 731 (1983), observed that it had earli- er recognized in California Motor Transport Co. v. Truck- ing Unlimited, 404 U.S. 508, 510 (1972), that the right of access to the court system is an aspect of the first amend- ment right to petition the Government for redress of grievances. The Court observed there that even the Board has recognized that " going to judicial body for re- dress of alleged wrongs . . stands apart from other forms of action directed at the alleged wrongdoer. The right of'access to a court is too important to be called an unfair labor practice solely on the ground that what is sought in court is to enjoin employees from exercising a protected right. Peddie Buildings, 203 NLRB 265, 272 (1973), enf. denied on other grounds, 498 F 2d 43 (3rd Cir. 1974)." Certainly the filing of grievances for lost wages qualifies as a protected right. Even so, the Court in Bill Johnson's was sensitive to what it characterized as sham or baseless lawsuits. It recognized that baseless liti- gation is not immunized by the first amendment right to petition for redress. The Board in Georgia-Pacific did discuss the impact of Bill Johnson's on cases such as this. It concluded that be- cause a Section 10(k) award had been issued and be- cause, under certain dicta found in Carey v. Westinghouse, 375 U.S. 261 (1964), Board decisions take precedence over abitration rulings, that Respondent's pursuit of wage claims under the abitration procedure had been rendered "baseless" in fact and law.' i Accordingly, it held that pursuit of rights under Section 301 through the grievance procedure could be enjoined as an unfair labor practice under the Act. In effect what the Board has said is that wage claims in work assignment questions are not cognizible under Section 301 even where there has been no traditional prohibited conduct to enforce the claim. That conclusion seems to be of dubious validity. Indeed, the Board ap- pears to be prejudging the merits of such wage claims, for it is in effect barring the parties from utilizing the courts to determine that issue. It is substituting its judg- ment for that of a competent court on a matter of con- tract law without any hearing. I do not think that either the first amendment or public policy authorizes the Board to do so. Clearly, the Federal courts are compe- tent to decide contract issues which parallel unfair labor practice issues in circumstances where the Board does 11 Apparently contra is Oregon-Columbia Chapter v Operating Engi- neers Local 701, 529 F 2d 1395 (9th Cir 1976) See also Louisiana-Pacific Corp v Electrical Workers IBEW Local 2294, 600 F 2d 219 (9th Cir 1979) LONGSHOREMEN ILWU LOCAL 151 (PORT TOWNSEND) not have exclusive jurisdiction. Oregon-Columbia Chapter and Louisiana-Pacific, both supra; cf., Connell Construc- tion Co. v. Plumbers Local 100, 421 U.S. 616 (1975). Con- nell involved the parallels between the Federal antitrust statutes and Section 8(e) of the Act, rather than as here the parallels between Sections 301 and 8(b)(4)(D). How- ever, that distinction is unimportant; what is significant is that the court there held that the Court system is compe- tent to examine legal issues over which the Board may so have jurisdiction, where Board law is raised respon- sively. Thus it is clear that the courts may view such wage claims as with or without validity on their own meets, determining for themselves the appropriate impact to be given the NLRA. Nonetheless, as a Board administrative law judge, I am obligated to implement Board policy See Iowa Beef Packers, 144 NLRB 615, 616 (1963). I am bound to apply the Board law which most closely approximates the facts before me. Thus, it appears that the Georgia-Pacific case, 6 weeks old, requires me to conclude that the pursuit of "in lieu of' grievances which are contrary to the Board's 10(k) award is a violation of Section 8(b)(4)(ii)(D) of the Act. Servette is not quite as close, though prior to Geor- gia-Pacific I would have regarded it as controlling. Fur- thermore, it appears that Respondent, counsel's letter- of July 30 cannot be considered a promise to comply with the 10(k) award. In that letter, while saying that Re- spondent would not use means proscribed by Section 8(b)(4)(D) to obtain the work, the lawyer reasserted Re- spondent's perceived right to judicially enforce the man- ning standards of the PCLCD. Georgia-Pacific has now held that conduct to unlawful. Therefore, the letter does not promise full compliance with the award. Thus a cease-and-desist order is appropriate. Accordingly, I render the following CONCLUSIONS OF LAW 1. Port Townsend Paper Corporation is an employer engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 683 2. International Longshoremen's and Warehousemen's Unions "Local No. 51 and Local 175, Association of Western Pulp and Paper Workers are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent has not, through the conversations of its agents with representatives of SSA or Port Townsend Paper, engaged in any conduct prohibited by subsection (u) of Section 8(b)(4) of the Act. 4. Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(ii)(D) of the Act by filing "in lieu of claims for work performed by members of AWPPW with an object of forcing or requiring an em- ployer to assign the work, described below, to employ- ees represented by ILWU Local 51 rather than to em- ployees represented by AWPPW and by failing and re- fusing to comply with the Board's Decision and Deter- mination of Dispute reported at 271 NLRB 354 (1984). The work consists of the moving of goods from the last place of rest on the Employer's premises out onto the dock to the ship's hook. 5. The aforesaid unfair labor practices are unfair labor practiced affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices I shall recom- mend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectu- ate the policies of the Act. I shall also recommend that Respondent be ordered to reimburse Stevedore Services of America and/or Jones-Washington Stevedore Compa- ny and the Pacific Maritime Association for any "in lieu of claims paid to Respondent or "in lieu of claims filed in 1984 involving the work in dispute at the dock owned and operated by Port Townsend Paper Corporation, with interest computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.]