Longshoremen Ilwu Local 14 (Eureka Forest)

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Longshoremen's and Warehousemen's Local Union No 14 and Eureka Forest Prod- ucts Co., Inc. Case 20-CD-611 20 September 1984 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS The charge in this Section 10(k) proceeding was filed on 29 September 1983 by the Employer, alleg- ing that the Respondent, International Longshore- men's and Warehousemen's Local Union No 14 (ILWU), violated Section 8(b)(4)(D) of the Nation- al Labor Relations Act by engaging in proscribed activity with an object of forcing the Employer to assign certain work to employees it represents rather than to employees of the Employer The hearing was held on 8 December 1983 before Hear- ing Officer Alma M Lopez Mann The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board affirms the hearing officer's rulings, finding them free from prejudicial error On the entire record, the Board makes the following find- ings I JURISDICTION Eureka Forest Products Co, Inc (EFP), is a California corporation engaged in international and coastwide shipping at its dock facility located at the foot of 14th Street in Eureka, California, where during the last 12 months it derived in excess of $50,000 gross revenues from operations in the Far East During the past 12 months EFP also shipped goods and materials such as logs and lumber valued in excess of $50,000 to points directly out- side the State of California The parties stipulate, and we find, that the Employer is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that ILWU and Local Union No 2592, Lumber and Sawmill Workers Union, AFL-- CIO (LSW), are labor organizations within the meaning of Section 2(5) of the Act II THE DISPUTE A Background and Facts of Dispute EFP is engaged in international and coastwide shipping from its dock facility located in Eureka, California It ships primarily logs and a small amount of lumber from this dock This facility is regularly staffed by three employees who for many years had been represented by LSW 1 Logs constituted approximately 70 to 90 percent of EFP's total cargo, and, during the past 10 years, 97 percent of the logs shipped have been logs be- longing to EFP With respect to EFP's operations, its employees perform the following functions (1) unloading logs from trucks, (2) spreading logs on the ground for "scaling," 2 (3) sorting logs accord- ing to specifications from sale orders, (4) piling logs into stacks or "decks," and (5) trimming and remanufactunng logs to remove defective parts In the course of their duties EFP employees use two types of Caterpillar machines, the 966 and 980, to move the logs Once the logs have been processed in the manner set forth above they are stored until an order is received for their shipment In order to move the logs from the storage area to the dock, EFP employees must first "break down" the decks of logs This is accomplished by the use of one of the Caterpillar machines referred to above After the decks are broken down, EFP employees use the machines to transport the logs from their last point of rest to a ship's tackle,3 where stevedores then load them on board the ship The movement from the last point of rest to the ship's tackle is the subject of this dispute On two occasions, in August and September 1983, ILWU requested that EFP replace its em- ployees represented by LSW with longshore em- ployees Each time EFP refused, citing a contract it had with LSW governing the work and employ- ees On 26 September 1983, ILWU put up a picket line at the EFP yard Several ILWU pickets car- ried signs at the entrance gate to EFP's facility which stated that EFP would not hire or recognize the ILWU The picket line was maintained for ap- proximately 24 hours At the time of the picketing, a ship was docked at EFP's facility awaiting steve- doring work to be performed by Westfall Steve- dore Company EFP's employees were to bring the lumber from its last point of rest to the point below the ship's tackle As a result of the picket line, Westfall employees who were ILWU members ceased all work Similarly, the work of EFP em- ployees came to a halt because they could not con- tinue to deliver lumber under the hook of the ship I LSW both prior to and during the hearing disclaimed any interest in the work in dispute and stated that it no longer represented the employ ees of EFP who perform the work 2 A method by which logs are measured for diameter and length and then graded according to quality, i e, determining defects and species of log 3 Certain terms such as the 'ship's tackle," beneath the hook of the ship," "below the hook of the ship," "pull alongside' and under the hook of the ship" are all used interchangeably to designate the last point of delivery of the cargo on the dock before it is actually loaded onboard the ship by stevedores 272 NLRB No 34 LONGSHOREMEN ILWU LOCAL 14 (EUREKA FOREST) 161 when Westfall employees refused to pick up the lumber from the dock and load it aboard the ship Later that day in a telephone conversation, an EFP official asked an ILWU official whether ILWU members employed by Westfall would return to work if EFP employed members of ILWU to perform the disputed work The ILWU response much later that day was that ILWU mem- bers had to have all the work inside the gates of EFP and that EFP had to replace all of its employ- ees with members of ILWU Additionally, ILWU stated that EFP would have to sign a contract with ILWU EFP reiterated its position that it had a contract with LSW and therefore' implied that it would not reassign the work B Work in Dispute The work in dispute involves the Movement of cargo from the last points of rest to the ship's tackle at the Employer's 14th Street 'dock facility C Contentions of the Parties The Employer contends that there is reasonable cause to believe that Section 8(b)(4)(D) of the Act has been violated and that there exists no voluntary method of settling the dispute The Employer also contends that ILWU has abandoned and/or waived its claim to the disputed work Additionally, the Employer asserts that past collective-bargaining agreements with the LSW, past company practice, employer preference, skills, economy and efficien- cy of operations, and area and industry practice all favor the work being performed by the Employer's employees ILWU does not contest that there is reasonable cause to believe that Section ,8(b)(4)(D) has been violated and that there is no agreed-upon method for the voluntary adjustment of the ,dispute It con- tends that the disputed work falls within its juris- diction based on a collective-bargaining agreement, Board certification, industry practice, and skill and efficiency of operations D Applicability of the Statute As noted above, it is uncontroverted that the ILWU demanded the disputed work and threat- ened to and did picket the EFP yard in support of its demand We find reasonable cause to believe that a, viola- tion of Section 8(b)(4)(D) has occurred and that there exists no agreed method for voluntary adjust- ment of the dispute within the meaning of Section 10(k) of the Act Accordingly, we find that the dis- pute is properly before the Board, for determina- tion E Merits of the Dispute Section 10(k) requires the Board to make an af- firmative award of disputed work after considering various factors NLRB v Electrical Workers IBEW Local 1212 (Columbia Broadcasting), 364 U S 573 (1961) The Board has held that its determination in a jurisdictional dispute is an act of judgment based on common sense and experience, reached by bal- ancing the factors involved in a particular case Machinists Lodge 1743 (J A Jones Construction), 135 NLRB 1402 (1962) The following factors are relevant in making the determination of this dispute 1 Collective-bargaining agreements Pursuant to a series of collective-bargaining agreements between EFP and LSW, it has been EFP's longstanding practice to assign to its LSW- represented employees the movement of cargo from the last point of rest to ship's tackle Since about 28 September 1983, LSW has disclaimed any interest in the disputed work and in continuing to represent EFP employees EFP employees never- theless continue to perform and claim the work in dispute EFP has no contract with ILWU ILWU contends that because the collective-bar- gaining agreement between LSW and EFP expired, the historical practice of using non-ILWU long- shore labor is no longer applicable 4 Instead, ILWU 'argues the Pacific Coast Longshore Con- tract Document (PCLCD), a multiemployer collec- tive-bargaining agreement between ILWU and Pa- cific Maritime Association (PMA), an association of stevedoring and steamship companies, controls the labor dispute here Essentially ILWU argues that the stevedoring companies, particularly West- fall Stevedore Company, are violating the PCLCD by not forcing ,EFP to relinquish the work in dis- pute to employees represented by ILWU We are not persuaded by ILWU's argument At the outset we note that the provisions of PCLCD cannot be binding on EFP because EFP is not a member of the PMA Even assuming that PCLCD was applicable, certain provisions of that agree- ment expressly preserve the continuation of "exist- ing practices under which other workers perform such dock work at an existing facility " (See PCLCD sec 1 45) Under this provision EFP's ex- , r 4 ILWU based its assertion that the collective bargaining agreement has expired on grounds that, while the parties engaged in negotiations, no formal agreement was ever executed and LSW subsequently disclaimed Interest in the disputed work or continuing to represent EFP's employ ees 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD isting practice since 1968 of assigning the disputed work to its employees would be protected.5 Additionally, section 1.11 of the PCLCD re- quires that "this document covers the movement of outbound cargo only from the time it enters a dock and comes under the control of any terminal, steve- dore, agent or vessel operator covered by this agreement." The above-quoted section of the PCLCD appears to imply that the PCLCD only applies once the cargo is under the control of the stevedore. Here, the stevedore does not receive control until after the cargo is placed beneath the hook of the ship. Thus the PCLCD, if it applies at all, would do so only after EFP employees have performed the disputed work. In these circumstances, we find there are no col- lective-bargaining agreements covering the work in dispute. This factor therefore does not favor either party. 2. Certifications There is no certification covering the EFP em- ployees who perform the disputed work. 6 ILWU argues that because it was certified in 1938 in a multiemployer unit of employees engaged in "long- shore work" such certification should flow to EFP via Westfall Stevedore Company's membership in PMA. We find no merit to ILWU's contention. EFP was neither a party to the PCLCD nor a member of PMA. Thus any rights flowing to ILWU by virtue of PMA or PCLCD are not enforceable against EFP, a nonmember. We conclude, there- fore, that this factor does not favor either party. 3. Employer preference and past practice EFP has stated, repeatedly throughout this pro- ceeding, its preference that the disputed work be awarded to its employees in accordance with its past and present practice. This factor favors an award of the work to the employees of EFP. 4. Area and industry practice EFP has satisfactorily shown that the work in dispute here is the work of its employees. On an areawide basis EFP demonstrated that at Coos Bay, Oregon, the port closest to it, non-ILWU em- ployees perform work like that in dispute at five of the eight docks. In addition, at all of the docks at Coos Bay employees who perform the disputed work are invariably employed by the terminal fa- cility rather than by the stevedoring company. 5 The agreement between EFP and LSW specifically provided that the disputed work was to be performed by EFP employees 6 EFP voluntarily recognized LSW when it represented EFP's em- ployees. Thus, those terminals, like EFP, utilize their own employees rather than going outside for employees. While it is true that in 1981 an arbitrator awarded work involving cargo handling "from the last place of rest to the ship's gear" to members of the ILWU, that case involved an area distant from the Eureka facility and the Board subsequently in the same case awarded the work in dispute to employ- ees other than those represented by ILWU. 7 On balance then, the area practice favors the assign- ment of the work to employees of EFP. 5. Relative skills Both groups of employees appear to be equally skilled in the operation of the forklifts. Both there- fore are capable of performing the disputed work. This factor, consequently, favors neither group seeking the work. 6. Efficiency and economy of operations In addition to performing the work in dispute, EFP's employees (1) unitize, grade, sort, trim, cut, remanufacture, transport, and store logs; (2) break down decks of logs; (3) recognize and categorize logs by sight on the basis of species, diameter, length, and grade; and (4) work during log delays by overhauling diesel engines and transmissions and doing yard maintenance, electrical work, carpen- try, and welding. Their ability to perform ,these other tasks and the absence of evidence that the ILWU members are able to perform to this level warrant the conclusion that this factor strongly favors an award of the work in dispute to employ- ees of the Employer. 7. Alleged ILWU agreement EFP alleges that, at an arbitration hearing in- volving the issue of whether a valid labor agree- ment existed between EFP and LSW as of 26 Sep- tember, the date of the instant dispute, Fred Santsche, president of ILWU, conceded that if a valid contract was found ILWU would not claim the work in dispute. The area arbitrator ruled that a valid contract did exist between EFP and LSW. Thus EFP alleges that ILWU has agreed to aban- don and/or waive any claim to the work in dis- pute. Despite EFP's allegation that ILWU has agreed to waive and/or abandon its claim to the work in dispute, the plain facts are that ILWU by virtue of its status as a party to this proceeding has failed to abide by the alleged agreement. ILWU has made a legitimate claim for the work in dispute. It is well 7 See International ILWU Local 32 (Weyerhauser Co.), 256 NLRB 167 (1981) LONGSHOREMEN ILWU LOCAL 14 (EUREKA FOREST) 163 settled that the Board will not accord great weight to such an alleged agreement where the union re- fuses to be bound by it 8 Conclusions After considering all the relevant factors, we conclude that employees employed by EFP are en- titled to perform the work in dispute We reach this conclusion relying on employer preference, area and industry practice, and efficiency and econ- omy of operations The determination is limited to the controversy that gave rise to this proceeding DETERMINATION OF DISPUTE The National Labor Relations Board makes the following Determination of Dispute 8 Teamsters Local 636 (Gimbel Bros), 251 NLRB 1329 (1980) 1 Employees of Eureka Forest Products Co, Inc , Eureka, California, are entitled to perform the movement of cargo from its last point of rest to the ship's tackle at the Employer's 14th Street dock 2 International Longshoremen's and Warehouse- men's Local Union No 14 is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force the Employer to assign the disputed work to employees represented by it 3 Within 10 days from this date, International Longshoremen's and Warehousemen's Local Union No 14 shall notify the Regional Director for Region 20 in writing whether it will refrain from forcing the Employer, by means proscribed by Sec- tion 8(b)(4)(D), to assign the disputed work in a manner inconsistent with this determination