Longshoremen Ilwu Locals 40 & 8 (Stc Submarine)

LONGSHOREMEN ILWU LOCALS 40 & 8 (STC SUBMARINE) 293 International Longshoremen's and Warehousemen's Union Locals 40 & 8 and STC Submarine Sys- tems, Inc. Case 36-CD-185 July 31, 1990 DECISION AND ORDER QUASHING NOTICE OF HEARING BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT The charge in this Section 10(k) proceeding was filed February 28, 1990, by the Employer, STC Submarine Systems, Inc , alleging that the Re- spondent, International Longshoremen's and Ware- housemen's Union Locals 40 & 8, 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 em- ployees it represents rather than to the Employer's unrepresented employees The hearing was held April 3, 1990, before Hearing Officer Linda J Scheldrup The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board affirms the heanng officer's rulings, finding them free from prejudicial error On the entire record, the Board makes the following find- ings I JURISDICTION The Employer, a Delaware corporation with its offices and place of business located in Portland, Oregon, is engaged in the manufacture of fiber optic cable The Employer has gross annual sales in excess of $500,000 and in the course and conduct of its business purchased and caused to be trans- ferred and delivered to its facilities in the State of Oregon goods and materials valued in excess of $50,000 directly from sources outside the State of Oregon The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that International Longshoremen's and Warehouse- men's Union Locals 40 & 8 are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute The Respondent has a collective-bargaining agreement with the Port of Portland (Port), dated October 22, 1984, covering the loading of ships at any of the Public Cargo Handling Facilities operat- ed or controlled by the Port in the Rivergate In- dustrial District Property and in other areas On July 20, 1988, the Port entered into a lease agree- ment with the Employer in order to build a plant on the Port's property at Rivergate The Employer built a plant and is producing underwater fiber optic cable at this site The lease agreement states that the Employer shall not operate the premises as a Public Cargo Handling Facility and is thus not subject to the Port's collective-bargaining agree- ment with the Respondent The Employer assigned the loading of the fiber optic cable to its own em- ployees The Respondent made several protests to the Port regarding the Port's lease agreement with the Employer, and claimed the cable-loading work for employees it represents The Respondent then filed a grievance against the Port, claiming a violation of its collective-bargaining agreement with the Port The arbitrator ruled in favor of the Respond- ent Despite the Respondent's protests and the arbi- trator's ruling, the Port did nothing to change the Employer's assignment of the cable-loading work On August 28, 1989, the Respondent sent the Port a letter, again claiming the cable-loading work The letter further stated We have chosen this way of communicating our concerns to you rather than other avenues which are obviously available to us We are not insensitive to damage that is done to the Port created by controversy and negative media coverage We want to avoid that if pos- sible However, time is running out and no one should underestimate our resolve We intend to load that cable aboard the vessel Just be- cause our response, to this point, has been measured carefully and discreetly [sic] should not lead anyone to believe that we will not do everything necessary to perform this work that we are contractually, legally, ethically and morally entitled to Our eight hundred plus members are entitled to, expect and demand no less B Work in Dispute The disputed work involves the loading of un- derwater fiber optic cable onto a cable-laying ship at the Employer's dock, which is on land leased from the Port in Portland, Oregon C Contentions of the Parties The Respondent contends that there is no rea- sonable cause to believe that any statement in its August 28, 1989 letter to the Port involved a viola- tion of Section 8(b)(4)(D) of the Act, nor is there any other evidence before the Board to support a conclusion that reasonable cause exists to believe 299 NLRB No 34 294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Section 8(b)(4)(D) has been violated For this reason, the Respondent contends that the present dispute is not properly before the Board The Employer contends that there is reasonable cause to believe that the Respondent, through its August 28, 1989 letter, threatened the Port with economic action with the object of forcing a reas- signment of the cable-loading work to employees represented by the Respondent The Employer fur- ther contends that all relevant factors support an award of the work to employees of the Employer D Applicability of the Statute Before the Board may proceed with a determina- tion of the dispute pursuant to Section 10(k) of the Act, it must be satisfied that there is reasonable cause to believe Section 8(b)(4)(D) of the Act has been violated The Employer contends that the Re- spondent violated Section 8(b)(4)(D) by its August 28, 1989 letter to the Port that stated that it will "do everything necessary to perform this work" The Respondent, however, argues that the letter did not constitute a threat of economic action and that there is no other evidence of an alleged threat in connection with its attempt to obtain the work for employees it represents We find that the statements in the Respondent's letter to the Port do not establish reasonable cause to believe that the Respondent violated Section 8(b)(4)(D) The statement that it would "do every- thing necessary to perform this work" is too vague and insubstantial to establish reasonable cause' The statement indicates that the Respondent in- tends to pursue its attempt to obtain the work for employees it represents However, neither this statement nor any other statement in the letter indi- cates an intent to communicate a threat of illegal conduct 2 Further, we find nothing else in this letter, or in the rest of the record, which would es- tablish reasonable cause to believe that the Re- spondent made a threat of economic action in vio- lation of Section 8(b)(4)(D) of the Act We find no reasonable cause to believe that Sec- , non 8(b)(4)(D) has been violated Accordingly, we shall quash the notice of heanng ORDER The notice of hearing is quashed 1 See Sheet Metal Workers Local 38 (Corbesco Inc), 295 NLRB 1069 (1989) (union official's statements, "I could not stand idly by and watch another trade perform our work" and "I'll just take whatever steps I have to necessary to get this work for my members," do not establish reasonable cause) 2 In arguing that there exists reasonable cause to believe that Sec 8(bX4)(D) was violated, the Employer relies on Ironworkers Local 3 (Spancrete Northeast), 267 NLRB 950 (1983) There, the Board found that a union representative's statement that "he would go to court or do whatever he had to do to get the work" established reasonable cause We find this statement distinguishable The part of the statement saying that he would "do whatever he had to do to get the work" implied something other than going to court In the instant case, there is no evidence sug- gesting that the Respondent was communicating a threat of Illegal con- duct rather than an Intent to enforce its arbitration award or to resort to some other legal course of action