Boilermakers, Local 6

National Labor Relations Board - Board Decisions

May 28, 1976

224 N.L.R.B. 222 (N.L.R.B. 1976)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths , Forgers and Helpers, Local
Lodge No 6 , Bay Cities Metal Trades and Indus-
trial Union Council and Pacific Far East Lines,
Inc and International Longshoremen's and
Warehousemen's Union, Local No 10 Case 20-
CD-473
May 28, 1976
DECISION AND DETERMINATION OF
DISPUTE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, based on
a charge filed by Pacific Far East Lines, Inc, herein
called Employer The charge alleges that Internation-
al Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers and Helpers, Local Lodge No
6, herein called the Boilermakers, and Bay Cities
Metal Trades and Industrial Union Council, herein
called Council, violated Section 8(b)(4)(D) of the Act
by engaging in certain proscribed activity in order to
force the Employer to assign certain work to individ-
uals represented by the Boilermakers rather than to
employees of the Employer represented by Interna-
tional Longshoremen's and Warehousemen's Union,
Local No 10, herein called the Longshoremen
A duly scheduled hearing was held on October 16,
17, and 23, 1975, before Hearing Officer Miguel A
Gonzales All parties appeared at the hearing and
were afforded full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to adduce evi-
dence bearing on the issue Thereafter, all parties
filed briefs
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error They are hereby affirmed I
1 In their brief to the Board, the Boilermakers and Council moved to
correct the transcript The motion is hereby granted
The Boilermakers and Council except to the Hearing Officers granting of
the Employers petition to revoke the subpoena duces tecum relating to Vice
President Velson's employment application with the Employer The applica
tion was sought for the purpose of establishing that the assignment of the
disputed work to the longshoremen was motivated by a bias on the part of
Velson, a former longshoreman The Boilermakers and Council hoped to
show that Velson listed the president of the Longshoremen s International
as a reference on his job application From this they would infer that the
assignment of the work to the employees represented by the Longshoremen
was prompted by Velson s ties with the Longshoremen We find such an
I BUSINESS OF THE EMPLOYER
The Employer is a corporation engaged in the wa-
ter transportation of freight between the United
States and foreign ports During the preceding 12-
month period, the Employer has shipped products
valued in excess of $50,000 from San Francisco, Cali-
fornia, to points and ports in countries other than the
United States, and has received in excess of $50,000
from its customers for shipping such products direct-
ly outside of the United States We find, as the par-
ties have stipulated, that the Employer is an employ-
er within the meaning of Section 2(2) of the Act We
further find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act and it will effectuate the purposes of the Act
to assert jurisdiction herein
II LABOR ORGANIZATIONS
The parties stipulated, and we find, that the Boiler-
makers, Council, and the Longshoremen are labor
organizations within the meaning of Section 2 (5) of
the Act
III THE ALLEGED DISPUTE
A The Work in Dispute
The work which gave rise to this proceeding in-
volves the maintenance and repair of the Employer's
barges and containers located at its maintenance
yard, Pier 96 , San Francisco , California
B Background and Facts
Prior to August 11, 1975, maintenance and repair
work on the Employer's barges and containers was
subcontracted out to various companies, including
Franklin Machine Works, Inc The Employer and
Franklin Machine conducted their business pursuant
to an oral contract Franklin Machine's employees
are represented by the Boilermakers However, the
Employer has never had a contractual relationship
with either the Boilermakers or Council
In 1974 new management took control of the Em-
ployer In order to cut costs and reduce the
Company's $19 million debt, the Employer decided
to reduce gradually the amount of work being sub-
inference to be too speculative since there is no relationship between
Velson s application and the decision as to which employees to assign the
work Moreover evidence of Velson's membership and previous employ
ment with the Longshoremen is present in the record so that the revocation
of the subpoena relating to the employment application did not prejudice the
Boilermakers or Council Accordingly we hereby affirm the Hearing
Officers granting of the motion to revoke the subpoena duces tecum in part
224 NLRB No 33
BOILERMAKERS , LOCAL 6 223
contracted out and begin to do more of this work
with its own "in-house" employees Pursuant to this
policy, on August 11, 1975, the Employer hired indi-
viduals represented by the Longshoremen as its own
employees to perform the same maintenance and re-
pair work at Pier 96 that had previously been done
by employees of Franklin Machine represented by
the Boilermakers On the first day that the longshore-
men were on the job, Franklin Machine's foreman
was told by the Employer to give the longshoremen a
welding test and to lay off 10 boilermakers The fore-
man refused to administer the welding test, but did
lay off 10 boilermakers
On August 12, 1975, a meeting was held between
the Employer and the Boilermakers Present for the
Employer were John Alioto, president, Charles Vel-
son, vice president, and Francis Bradford, vice presi-
dent of marine operations G P Campbell, business
manager, and his assistant, Al Johnson, were present
for the Boilermakers At the meeting, Alioto ex-
plained that in accordance with the Employer's in-
tention to eliminate all subcontractors eventually, it
planned to perform the maintenance and repair work
with its own "in-house" employees who were repre-
sented by the Longshoremen Campbell stated that
he was not concerned with whether the Employer
continued its subcontractual relationship with
Franklin Machine or did the work with its own "in-
house" employees, but he wanted to ensure that boil-
ermakers did the work Campbell demanded that the
work be assigned to boilermakers, and refused to ac-
cept a proposed arrangement whereby both Franklin
Machine's boilermakers and the Employer's long-
shoremen would work together
The following day, August 13, 14 of Franklin
Machine's employees, along with Campbell and 2 of
his assistants, picketed the Employer's facility for ap-
proximately 2 hours The pickets carried signs stat-
ing
BOILERMAKERS WORK NOW BEING DONE FOR PFE
LINES IS AT WAGES-HOURS AND WORKING CONDI
TIONS BELOW THOSE PREVAILING FOR BOILERMAKERS
IN THE AREA BAY CITIES METAL TRADES COUNCIL
The only people who crossed the picket line were the
Employer's longshoremen who were doing the main-
tenance and repair work When the picketing termi-
nated, Franklin Machine's boilermakers resumed
work
Since August 13, 1975, both Franklin Machine's
boilermakers and the Employer's longshoremen have
continued to do the disputed work side by side
not a jurisdictional dispute because the object of the
picketing was work preservation for the boilermakers
who had been doing the disputed work Additionally,
Council asserts that there is a lack of evidence con-
cerning its involvement in the dispute 2 Alternatively,
both the Boilermakers and Council contend that if a
jurisdictional dispute is found to exist, the work
should be awarded to the employees represented by
the Boilermakers
The Employer and the Longshoremen both con-
tend that a jurisdictional dispute exists and request
that the work be awarded to the employees repre-
sented by the Longshoremen
D Applicability of the Act
Before the Board may proceed to a determination
of dispute under Section 10(k) of the Act, it must be
satisfied that there is reasonable cause to believe that
Section 8(b)(4)(D) has been violated, and that there
is no agreed-upon method for the voluntary adjust-
ment of the dispute
We are satisfied that such reasonable cause to be-
lieve that a violation has occurred is present in this
case The record establishes that following the
Employer's engagement of employees represented by
the Longshoremen, Business Manager Campbell
communicated the Boilermakers intent to take action
against the Employer if it did not cease using long-
shoremen in performing the disputed work In ex-
changes between Campbell and the Employer,
Campbell claimed the work as boilermakers' work, in
general, demanded the Employer's continued use of
boilermakers for the work, and rejected a compro-
mise whereby both boilermakers and longshoremen
would perform the work On August 13, 17 persons
affiliated with the Boilermakers picketed the worksite
with signs indicating an area standards object Only
the Employer's employees represented by the Long-
shoremen crossed the picket line and continued to
perform the disputed work during the brief picketing
Subsequently, the Boilermakers asserted that it
had a work preservation object in picketing the Em-
ployer However, Campbell's comments to the Em-
ployer, and the absence of any indication of a work
preservation object on the picket signs, belie any
claim that the Boilermakers object was solely for the
boilermakers who had picketed work as employees of
Franklin Machine Rather, these actions show that at
least an object was to force the Employer to replace
C Contentions of the Parties
The Boilermakers and Council contend that this is
2 In its brief Council made a motion to quash the notice of hearing with
regard to it In view of the inclusion of Council s name on the picket signs
and the participation of Campbell Council s vice president in the picketing
we find that Council is properly a party in this proceeding Accordingly we
deny Councils motion to quash the notice of hearing with regard to it
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees represented by the Longshoremen with
employees referred and represented by the Boiler-
makers 3
During the course of the picketing, employees rep-
resented by the Longshoremen continued to perform
the disputed work, and at the hearing herein the
Longshoremen sought the assignment of the work to
the employees it represents Since the Employer's ini-
tial utilization of longshoremen, the Boilermakers
has continued to assert vigorously its claim to the
disputed work Thus, it is clear that two rival groups
of employees are competing for the assignment of the
disputed maintenance and repair work and that one
group picketed the Employer resulting in a disrup-
tion of work
Based on the foregoing, and the record as a whole,
we find there is reasonable cause to believe that a
violation of Section 8(b)(4)(D) of the Act has oc-
curred Since the parties have not agreed upon a vol-
untary method of settling this jurisdictional dispute,
the dispute is properly before the Board for determi-
nation under Section 10(k) of the Act
E Merits of the Dispute
Section 10(k) of the Act requires that the Board
make an affirmative award of the disputed work af-
ter giving due consideration to various relevant fac-
tors 4 As the Board has stated , the determination in a
jurisdictional dispute case is an act of judgment
based on commonsense and experience in weighing
these factors The following factors are relevant in
making a determination of the dispute before us
1 Board certifications
Neither the Boilermakers nor the Longshoremen
has been certified by the Board as collective-bargain-
ing representative of the Employer's employees
Accordingly, this factor does not favor an award
to either group of competing employees
2 Collective-bargaining agreements
The Employer does not have a contract with either
Franklin Machine or with the Boilermakers The
Employer is, however, a member of the Pacific Mari-
time Association (PMA) which has a collective-
bargaining agreement with the International
Longshoremen's and Warehousemen's Union
(ILWU) The scope of that agreement, however, is
limited to the movement of cargo on and off PMA
members' vessels and, therefore, is not applicable to
the disputed maintenance and repair work herein
Accordingly, this factor does not favor an award to
either group of competing employees
3 Skills and training
The work herein is largely unskilled in nature, ne-
cessitating only minimal on-the-job training It pri-
marily involves the burning, cutting, welding, bend-
ing, and hammering of steel These operations
require work with the hands and the ability to use
power drills, sledge hammers, heating torches, and
other welding equipment Although the disputed
work entails some welding, the employees are not re-
quired to be certified as welders Work involving the
hydraulic system requires a generalized background
in auto mechanics obtained through any basic course
covering mechanics The Employer testified that em-
ployees represented by each of the Unions possess
the requisite skills to perform the work and, in fact,
in the past have performed the disputed work to the
Employer's satisfaction Thus, this factor does not
favor an award to either group of competing employ-
ees
4 Area and industry practice
The record establishes that there is no clear-cut
area or industry practice of assigning the disputed
work to employees represented by any particular
union Testimony shows that Seatrain in Oakland
uses longshoremen, V C Container and Sealand in
Oakland use machinists, and the American President
Lines, which shared Pier 96 with the Employer in
1974, used carpenters then and currently uses long-
shoremen at its Oakland location to do similar work
Moreover, the Employer's employees represented by
Seafarers' International Union (SIU) and Marine,
Firemen's, Oilers and Wipers' Union (MFOW), both
in the past and present, have performed work very
similar to that in dispute It thus is clear that the
maintenance and repair work on barges and contain-
er vessels is a relatively new practice within the in-
dustry and that no clear-cut work assignment prac-
tices have been established Accordingly, this factor
does not favor an award to either group of competing
employees
3 See, e g, International Longshoremen s Association, Great Lakes District
AFL-CIO, et al (Lawrence Erie Company), 158 NLRB 1687, 1690 (1966)
' N L R B v Radio & Television Broadcast Engineers Union Local 1212
International Brotherhood of Electrical Workers AFL-CIO [Columbia Broad-
casting System], 364 U S 573 (1961)
5 Employer's past practice
Before the Employer assigned the disputed work to
its own employees represented by the Longshoremen,
BOILERMAKERS , LOCAL 6 225
the Employer has subcontracted the work to Frank-
lin Machine, whose employees are represented by the
Boilermakers Prior to that, the Employer had used
other subcontractors as well as its own employees
represented by SIU Since the Employer's past prac-
tices do not establish a pattern of assigning the dis-
puted work to employees represented by any particu-
lar union, this factor does not favor an award to
either group of competing employees
6 Efficiency and economy
The record discloses that by using its own employ-
ees represented by the Longshoremen instead of sub-
contracting the disputed work to employees repre-
sented by the Boilermakers, the Employer is able to
reduce its costs by eliminating the subcontractor's
profit factor By using its own longshoremen employ-
ees, the Employer also reduces its overhead, elimi-
nates the duplication of management personnel, and
saves on other general and administrative expenses
Further, the Employer has greater control over the
work relationship as to hours worked, orders, and
supervision Additionally, the use of its own employ-
ees represented by the Longshoremen gives the Em-
ployer greater flexibility in conducting its operations
by permitting it to streamline activities in slack peri-
ods and increase operations at peak times These ad-
vantages and similar increased efficiencies prompted
the Employer's recent policy decision to eliminate all
subcontractors, resulting in the assignment of the dis-
puted work to its employees represented by the
Longshoremen Thus, efficiency and economy of op-
erations favor an award of the work to employees
represented by the Longshoremen
7 Employer preference
The Employer's assignment of the disputed work
to the employees represented by the Longshoremen
instigated the instant jurisdictional dispute In accor-
dance with its policy to eliminate all subcontractors
and, eventually, to perform all of its work with its
own in-house employees, the Employer assigned the
disputed work to employees represented by the
Longshoremen Further, the Employer, while not
contractually obligated to do so, has applied the
terms and conditions of the PMA-ILWU contract to
these employees, thereby demonstrating its prefer-
ence to have a uniform labor relations policy
throughout its operations During the proceedings
herein, the Employer has vigorously sought the as-
signment of the work to its employees represented by
the Longshoremen so as to effectuate its overall oper-
ational plan of performing all work by its own em-
ployees in order to improve the financial condition of
the Company Accordingly, this factor supports an
award of the work to its employees represented by
the Longshoremen
Conclusions
Upon the record as a whole, and after full consid-
eration of all relevant factors involved, we conclude
that the employees of the Employer represented by
the Longshoremen are entitled to perform the disput-
ed work In reaching this conclusion, we have relied
upon the Employer's assignment of the disputed
work to its longshoreman employees and the in-
creased efficiency and economy and operations re-
sulting from such assignment The fact that members
of both Unions possess the necessary skills and train-
ing to perform the work is determinative only to the
extent it establishes that the Longshoremen members
have the ability to perform the work satisfactorily
We shall, accordingly, determine the existing juris-
dictional dispute by deciding that employees repre-
sented by the Longshoremen, rather than those rep-
resented by the Boilermakers, are entitled to the
work in dispute In making this determination, we
are assigning the disputed work to the employees of
the Employer who are represented by the Longshore-
men, but not to that Union or its members
DETERMINATION OF DISPUTE
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board makes
the following Determination of Dispute
I Employees of Pacific Far East Lines, Inc, rep-
resented by International Longshoremen's and
Warehousemen's Union, Local No 10, exclusively,
are entitled to perform the maintenance and repair
work of Pacific Far East Lines, Inc, barges and con-
tainers located at its maintenance yard, Pier 96, San
Francisco, California
2 International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
Local No 6, and Bay Cities Metal Trades and Indus-
trial Union Council are not entitled by means pro-
scribed by Section 8(b)(4)(D) of the Act to force or
require the assignment of the above work, or any
part thereof, to its members or to employees it repre-
sents
3 Within 10 days from the date of this Decision
and Determination of Dispute International Brother-
hood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, Local Lodge No 6, and
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bay Cities Metal Trades and Industrial Union Coun- or requiring, by means proscribed by Section
cil shall notify the Regional Director for Region 20, 8(b)(4)(D) of the Act, the assignment of the disputed
in writing, whether or not it will refrain from forcing work in a manner inconsistent with this Decision and
Determination of Dispute