Operating Engineers Local 3 (Levin-Richmond Terminal)

OPERATING ENGINEERS LOCAL 3 (LEVIN-RICHMOND TERMINAL) 449 Operating Engineers Local Union No. 3 of the Inter- national Union of Operating Engineers, AFL- CIO and Levin-Richmond Terminal Corporation and International Longshoremen's and Ware- housemen's Union, Local 10, AFL-CIO. Case 32-CD-119 August 13, 1990 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY The charge in this Section 10(k) proceeding was filed December 5, 1989, by the Employer, Levin- Richmond Terminal Corporation, alleging that the Respondent, Operating Engineers Local Union No 3 of the International Union of Operating Engi- neers, AFL-CIO (Local 3), 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 employees rep- resented by International Longshoremen's and Warehousemen's Union, Local 10, AFL-CIO (ILWU) The hearing was held January 12, 1990, before Hearing Officer Jo Ellen Marcotte The National Labor Relations Board has delegat- ed its authonty 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, 1 the Board makes the following find- ings I JURISDICTION The Employer, a California corporation, is en- gaged in the loading and unloading of ships at its Richmond, California facility During the 12 months prior to the hearing, the Employer sold and shipped goods valued in excess of $50,000 di- rectly to customers located outside the State of California and during the same period, the Em- ployer derived gross revenues in excess of $500,000 The parties stipulate, and we find, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that Local 3 and the ILWU are labor organizations within the meaning of Section 2(5) of the Act 'Subsequent to the hearing, briefs were filed by the Employer, Local 3, and the ILWU, and the Employer filed a motion for expedited resolu- tion II THE DISPUTE A Background and Facts of Dispute Levin-Richmond Terminal Corporation operates a terminal in Richmond, California, consisting of two docks for oceangoing vessels It performs vari- ous operations connected with the loading and un- loading of approximately 50-75 vessels per year Its operations include the loading and unloading of scrap and nonscrap materials from the vessels In- cluded among the nonscrap materials are certain bulk cargos such as petroleum coke, coal, bauxite, and various agricultural products In the course of loading and unloading vessels, employees operate cranes to move cargo to and from the ships While the cranes are in operation, one person performs the function of hatch tender The hatch tender stands on the ship, in view of the crane operator who cannot see the bottom of the ship's hold, and signals to the crane operator con- cerning where to drop the cargo or where to drop the hook or bucket of the crane to pick up cargo After a cargo has been loaded or unloaded, an em- ployee cleans up the remainder of the cargo, using a sweeper or a shovel The Employer has a collective-bargaining agree- ment with Local 3 that covers, inter slut, hatch tending and other unskilled labor connected with the loading and unloading of nonscrap cargo In addition, the Employer is party to a 1983 agree- ment with the ILWU (the Understanding) The Understanding, the validity of which we do not analyze in this proceeding, provides, inter aim, that in loading or unloading of vessels with bulk cargo, the Employer will "order and compensate ILWU represented persons to be designated through the regular ILWU dispatch halls" at the rate of, inter aim, one hatch tender and one unskilled laborer per crane Pursuant to the Understanding, the ILWU dispatches hatch tenders and unskilled laborers who then report to the Employer's Richmond ter- minal whenever it receives notices that the termi- nal is servicing a vessel carrying bulk cargo, even though Local 3 employees perform the work In early December 1989, 2 the Employer con- tracted to unload a vessel carrying a bulk cargo of hog fuel/wood chips This cargo had never before been handled at the Richmond terminal and the Employer decided that, given the low value of hog fuel, it was too costly to pay twice for hatch tend- ing and unskilled laborer work Thereafter, on December 5, the Employer's at- torney spoke to Hank Munroe, the district repre- sentative of Local 3, and indicated that the Em- 2 All dates are in 1989 299 NLRB No 56 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployer had a cargo of hog fuel coming and that it was seriously considering assigning the work of un- loading that vessel to employees represented by the ILWU Munroe testified that he responded that if the Employer assigned that work to those employ- ees, Local 3 would file a grievance, seek liquidated damages, and would take economic action Ac- cording to the Employer's vice president and gen- eral manager, Thomas Peterson, when asked by the Employer if Local 3 would picket if the Employer assigned the work to employees represented by the ILWU, a Local 3 representative responded, "Yes" Following his telephone conversation with the Em- ployer, on December 6, Munroe sent the Employer a letter confirming the December 5 conversation and stating that "[I]n the event you reassign our work, we will file a grievance, seek liquidated damages and take economic action" B Work in Dispute The work in dispute, as described in the notice of hearing, is "work function associated with hatch tending and work functions that can be performed by unskilled laborers, such as sweeping, in connec- tion with the loading, handling and/or unloading of bulk cargo hog fuel/wood chips, onto or off ships, at the Employer's Richmond, California ter- minal " 3 However, the Employer at the hearing sought to broaden the scope of the disputed work to include all hatch tender and unskilled laborer work, not just on shipments of hog fuel but on all shipments of nonscrap cargo, including bulk or break bulk cargo ILWU protested at that time that it was not prepared to proceed on any issue broad- er than that set out in the notice of hearing We must thus determine the scope of the work in this proceeding The December 5 telephone conversation be- tween the Employer's attorney and Local 3's rep- resentative was limited to a discussion of the Em- ployer's giving serious consideration to assignmg the work of unloadmg the ship containing hog fuel to employees represented by ILWU Although in its December 6 letter to the Employer confirming the phone call Local 3 indicated that the Employer had threatened to reassign work that Local 3 had "done for years," the phone conversation of De- cember 5, in fact, was limited to a discussion of the unloading of the vessel containing hog fuel and the Employer gave no indication in that conversation that the assignment extended beyond that vessel Because of the foregoing and the fact that the charge, the notice of hearing, and the Regional Di- 3 The work in dispute was described in a similar fashion in the charge filed by the Employer and In a December 21, 1989 letter from the Re- gional Director to the Employer's attorney rector's letter to the parties clearly describe the work in dispute as hatch tending and unskilled la- borer work concerning the loading and unloading of hog fuel, we deny the Employer's motion to expand the scope of the disputed work C Contentions of the Parties The Employer contends that Local 3 violated Section 8(b)(4)(D) of the Act by its December 5 threat to take economic action if the Employer as- signed the work to employees represented by the ILWU The Employer and Local 3 contend that the disputed work should be awarded to employees represented by Local 3 on the basis of Local 3's collective-bargaining agreement, 4 the Employer's preference and past practice, area practices, and economy and efficiency of operation The ILWU contends that a jurisdictional dispute does not exist and that the notice of hearing should be quashed Specifically, the ILWU contends that there is no reasonable cause to believe that Section 8(b)(4)(D) has been violated because there has been no genuine threat The ILWU also argues that, even assuming that Local 3's threat was genuine, this is not a jurisdictional dispute because there was no active dispute between Local 3 and the ILWU over the work at issue until the Employer, on its own initiative, created the dispute by advising Local 3 that it was considering reassignmg the work to ILWU-represented employees The ILWU argues that under Board precedent, specifically Teamsters Local 107 (Safeway Stores), 134 NLRB 1320 (1961), such circumstances do not constitute a jurisdictional dispute D Applicability of the Statute Before the Board may proceed with a determina- tion of 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 the parties have not agreed on a method for the voluntary adjustment of the dis- pute As discussed above, the district representative of Local 3, Munroe, indicated that he told the Em- ployer he would file a grievance, seek liquidated damages, and take economic action if the Employ- er reassigned the disputed hatch tending and un- skilled laborer work to ILWU-represented employ- ees The Employer's vice president and general manager testified that Local 3 indicated that the Union would picket if the work were reassigned There is reasonable cause established under either 4 Only Local 3 appears to argue this basis OPERATING ENGINEERS LOCAL 3 (LEVIN-RICHMOND TERMINAL) 451 Munroe's or Peterson's testimony 5 The ILWU argues, however, that the threat of economic action is a sham orchestrated by the attorneys for Local 3 and the Employer and designed to provide the Employer with justification for filing an 8(b)(4)(D) charge and triggering a 10(k) proceed- ing We disagree The record shows that Local 3 threatened to take certain action if the Employer assigned the disputed work to ILWU-represented employees Its statement on its face constitutes a le- gitimate threat and there is insufficient evidence to conclude that the threat was not made seriously or that Local 3 in any way colluded with the Em- ployer in this manner 6 The ILWU also claims that there is no tradition- al jurisdictional dispute but rather unilateral action by the Employer in assigning the work to employ- ees represented by the ILWU and that the notice of hearing should therefore be quashed In support of this contention, the ILWU cites Teamsters Local 107 (Safeway Stores), supra, in which the Board held that when an employer by his unilateral action creates the dispute by transferring work away from the only group claiming the work, that such con- duct does not give rise to a jurisdictional dispute within the meaning of Sections I (k) and 8(b)(4)(D) of the Act See 134 NLRB at 1323 This case is in- applicable to the facts in the instant case where both Local 3 and the ILWU have effectively claimed the work by their past action At the least, neither Umon has disclaimed the work We find that there is reasonable cause to believe that a violation of Section 8(b)(4)(D) has occurred, that there exists no agreed-on method for voluntary adjustment of the dispute within the meaning of Section 10(k) of the Act, and that Teamsters Local 107 (Safeway Stores), supra, does not apply to this situation Accordingly, we find that the dispute is properly before the Board for determination 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) 'Regarding threats to take economic action, see, e g, Stage Employees IATSE Local 659 (Westinghouse Broadcasting Co), 222 NLRB 1004, 1005 (1976) ° See generally Teamsters Local 6 (Anheuser-Busch), 270 NLRB 219 (1984) The following factors are relevant in making the determination of this dispute 1 Certifications and collective-bargaining agreements No party claims that there are certifications ap- plicable to the work in dispute Local 3's collective-bargaining agreement clearly covers the disputed work The Understanding be- tween the Employer and the ILWU indicates that, "Din loading or unloading of vessels with bulk cargo, [the Employer] will order and compensate ILWU represented persons to be designated through the regular ILWU dispatch halls, and this covers one hatch tender and one unskilled laborer per crane" We find this factor favors neither group of employees 2 Employer preference and past practice The Employer's practice since 1981 has been to assign the work of hatch tending and unskilled la- borer work to employees represented by Local 3 and it indicates that this is its present preference Accordingly, these factors favor an award of the disputed work to employees represented by Local 3 3 Area practice Testimony presented at the hearing shows that Local 3 has similar contracts covering hatch tender and unskilled laborer work with at least five other companies in the Bay Area Since the ILWU did not present any comparable evidence regarding area practice, 7 this factor favors awarding the work to employees represented by Local 3 4 Economy and efficiency of operation Local 3-represented employees work flexible shifts, which enables the Employer to operate con- tinuously for 20 hours per day while a ship is in the berth, and to minimize environmental citations and contamination and loss of the products the em- ployees are loading and unloading If ILWU-repre- sented employees were utilized to perform this work, the Employer would incur overtime ex- penses it does not currently have due to a workday that starts 2 hours later than the workday of Local 3-represented employees In addition, the Employ- er's loading and unloading operations would be idled from 5 to 7 p m, due to the workday restric- tions in the ILWU Master Agreement and, during this time, the Employer would risk loss or contami- nation of bulk products and potential environmen- 7 Evidence involving various stevedoring companies was, at the most, inconclusive 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tal citations because bulk products would be sitting on the dock rather than being loaded or unloaded immediately Also, crane operators would be idled because hatch tenders and unskilled laborers would not be available Accordingly, this factor favors awarding the dis- puted work to employees represented by Local 3 Conclusion After considenng all the relevant factors, we conclude that employees represented by Local 3 are entitled to perform the work in dispute We reach this conclusion by relying on the factors of employer preference and past practice, area prac- tice, and economy and efficiency of operation In making this determination, we are awarding the work to employees represented by Local 3, not to that Union or its members The determination is limited to the controversy that gave nse to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute Employees of Levin-Richmond Terminal Corpb- ration, represented by Operating Engineers Local Union No 3 of the International Union of Operat- ing Engineers, AFL-CIO, are entitled to perform the hatch tending and unskilled laborer work con- cerning the loading, handling, and/or unloading of bulk cargo hog fuel/wood chips, onto or off ships, at the Employer's Richmond, California terminal