Clerks & Checkers Loc. 1351, LongshoremenDownload PDFNational Labor Relations Board - Board DecisionsOct 14, 1975220 N.L.R.B. 1270 (N.L.R.B. 1975) Copy Citation 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clerks and Checkers Local 1351 , International Longshoremen 's Association and Sea-Land Serv- ices, Inc. and Teamsters Local No. 988 Teamsters Local No. 988 and Sea-Land Services, Inc. and Clerks and Checkers Local 1351 , International Longshoremen 's Association. Cases 23-CD-334 and 23-CD-335 October 14, 1975 DECISION AND DETERMINATION OF DISPUTE BY MEMBERS FANNING, JENKINS, AND PENELLO This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed May 5 and 7, 1975, by Sea-Land Services, Inc., hereinafter called the Employer, against the Clerks and Checkers Local 1351, Interna- tional Longshoremen 's Association , hereinafter called the Clerks and Checkers, and against the Teamsters Local No. 988, hereinafter called the Teamsters, respectively. The charges allege that each Respondent has violated Section 8(b)(4)(D) of the Act by engaging in certain proscribed activity with an object of forcing or requiring the Employer to assign certain work to employees represented by its labor organization rather than to employees repre- sented by the other labor organization. A hearing was held before Hearing Officer James L. Palmer on July 17 and 18, 1975, at Houston, Tex- as. All parties appeared at the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses , and to adduce evidence bearing on the issues. 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 rulings of the Hearing Officer made at the hearing are free from prejudicial error and hereby are affirmed. Upon the entire record in this case, the Board makes the following findings: 1. THE BUSINESS OF THE COMPANY The parties stipulated that the Employer, a Dela- ware corporation , is engaged in the interstate trans- portation of marine cargo, and that during the past 12 months, a representative period, the Employer re- ceived gross revenue in excess of $50,000 and per- formed services in excess of $50,000 for enterprises doing business across state lines . We find , therefore, that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert juris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Clerks and Checkers and Teamsters are labor organizations within the meaning of the Act. III. THE DISPUTE A. The Work in, Dispute The work in dispute is checking the container yard inventory , including checking the loading , contents, or condition of the containers in the container yard. B. Applicability of the Statute The parties stipulated that the Employer and the Clerks and Checkers and the Employer and the Teamsters had discussions concerning the work in question prior to the filing of charges in Cases 23-CD-334 and 23-CD-335, respectively, which the Employer could have interpreted as a threat within the meaning of Section 8(b)(4)(D) of the National Labor Relations Act. The parties further stipulated that there is no formal or informal tripartite agree- ment or process which can resolve the dispute of the issue in question. Accordingly, we find that reason- able cause exists to believe that the threat violated Section 8(b)(4)(D) of the Act. C. Background and Facts of the Dispute The Employer is a container steamship line com- pany engaged in both domestic and foreign steam- ship service from Houston. The cargo is loaded into containers and is delivered either in a domestic run or offshore. Currently, the Employer's yard holds ap- proximately 1,000 containers, which are boxes filled with cargo. The box itself is attached to a chassis with wheels locked on the chassis and is then suitable for over-the-road travel. When such a container moves to shipside for shipment by an oceangoing carrier, the chassis is unlocked and the container is lifted aboard ship and deposited in its allotted space. Longshoremen, who are members of a different local than the clerks and checkers, normally move the con- tainer from the yard to the ship, or from the ship to the yard. Containers that contain material which will be loaded on the ship may first go to the platform loading dock for unloading and further packing. In 220 NLRB No. 203 CLERKS & CHECKERS LOC. 1351, LONGSHOREMEN 1271 this event, they are moved to the platform loading dock by teamsters. The Employer is a fully integrated operation and owns its own ocean carriers, trucks, terminals, ware- house, and containers. Because it is a combination of freight forwarder, pickup and delivery, and ocean carrier, the Employer employs both teamsters and longshoremen. The Employer employs its own driv- ers, represented by the Teamsters, within the com- mercial zone of Houston to deliver domestic cargo.' Pickup and delivery of the offshore traffic and the domestic traffic outside the Houston commercial zone is handled by interline truckers. Although the evidence is conflicting regarding the checking of in- ventory, it appears that the employees represented by Teamsters have traditionally checked the interline trucks bringing containers in and out at the gate to the container yard. Moreover, it appears that em- ployees represented by the Clerks and Checkers have traditionally checked containers moving from vessel to wharf, or from wharf to vessel. The controversy, however, concerns the checking of the container yard inventory, including checking the loading, contents, or condition of the container yard. This disputed work is actually composed of two elements: (1) "In- ventorying containers"-the checking of the contain- ers at their different and changing locations in the yard, and (2) "Spot checking"-checking the load,2 contents and condition of the containers in the yard. Employer,' nor the contract entered into by the Clerks and Checkers with the West Gulf Maritime Association, is applicable since both agreements were negotiated with multiemployer groups and are not specifically designed to cover an integrated oper- ation of this type. The Teamsters also contends that the work in question has traditionally been assigned to employees represented by the Teamsters, that it will be more efficient and economical if employees represented by the Teamsters perform the work since these employees, unlike employees represented by the Clerks and Checkers, can also help open the con- tainers, and since it is totally unnecessary for em- ployees represented by the Clerks and Checkers to perform full-yard inventories of containers which are destined to go inland or destined to go to the dock for unloading that day, as this work would be per- formed by employees represented by the Teamsters. The Employer takes no position as to the assign- ment of the particular work in dispute. E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various factors . The fol- lowing factors are relevant in making a determina- tion of the dispute before us: D. The Contentions of the Parties The Clerks and Checkers contends that the disput- ed work properly must be performed by employees it represents because the Clerks and Checkers agree- ment with the Employer and other member compa- nies of the West Gulf Maritime Association specifi- cally provides that the work in question is to be done by employees represented by the Clerks and Check- ers at the Port of Houston; because checking and inventory is the only work performed by employees represented by the Clerks and Checkers at the Port of Houston ; and because employees represented by the Clerks and Checkers perform identical work throughout the port. The Teamsters contends that employees it repre- sents have traditionally performed this work and that the only area practice applicable herein is the unique, integrated operation of the Employer itself. It argues, moreover, that neither the collective-bargaining agreement entered into by the Teamsters with the 1 The Employer operates on a 5-acre tract located in the Port of Houston, which is fenced in and leased to various stevedoring and marine outfits. 2 "Loading" here refers to how the contents of the container are arranged and loaded ; it does not refer to the actual container -loading work. 1. Collective-bargaining agreements The collective-bargaining agreement between the Teamsters and the Employer consists of the National Master Freight Agreement which provides ( in article 40) that employees covered by the agreement must include, inter alia, "Checkers." The provisions of the contract between the Clerks and Checkers and West Gulf Maritime Association provide that the Clerks and Checkers shall make a record of containers re- ceived at or delivered from the waterfront facility and shall check freight from vessel to wharf and wharf to vessel. We find the language in these con- tracts is too ambiguous to support the contentions of either Respondent that the work has been contractu- ally awarded to employees represented by their re- spective Unions. Clearly, employees represented by each Union properly perform some checking. The Clerks and Checkers does not contend that employ- ees represented by the Teamsters improperly check the "Teamster gates" and inventory containers car- ried by interline truckers. Moreover, it is apparent that the employees represented by the Clerks and 3 The National Master Freight Agreement and Southern Conference Area Local Freight Forwarding Pickup and Delivery Supplemental Agreement is the major basis for the agreement between the Employer and the Temasters. 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Checkers have traditionally checked all containers which are loaded onto or unloaded from vessels at the wharf. Accordingly, we find that this factor does not favor either Respondent over the other. 2. Employer's assignment and past practice; competitor, area, and industry past practice The testimony regarding the Employer's assign- ment in the past was conflicting and contradictory. Much of this testimony was based on hearsay and there was testimony that employees represented by both the Clerks and Checkers and the Teamsters had performed full-yard inventories as well as spot checks. As stated above, the Employer takes no posi- tion as to the assignment of the work in dispute. However, it is clear from the record that the Employer's competitors in the Port of Houston have had all container inventorying and spot-checking work performed by employees represented by the Clerks and Checkers. Although we are aware that the Employer is the only employer whose facility is fully integrated, we consider the work at issue to be sub- stantially similar whether performed within the Employer's facility or that of another employer. All facilities require that inventories be performed, that spot checks be executed occasionally and that mer- chandise loaded and unloaded be clerked and checked. Thus, this factor favors an award to the em- ployees represented by the Clerks and Checkers. 3. Relative skills, efficiency, and economy of operation Although it is apparent that employees represented by both Unions are qualified to perform the opera- tion in issue, we find that the disputed work could be performed more efficiently by employees represented by the Clerks and Checkers. Although the record is not totally clear, it appears that employees repre- sented by the Teamsters check in containers which are carried by interline carriers to the Employer's container yard. Subsequently, the containers are stored in the yard. Occasionally, the contents of a container must be ascertained or "spot checked." This check may be necessary because there is a ques- tion as to the type of cargo or its destination and whether it is properly loaded, blocked, or braced. Prior to each sailing and immediately thereafter, a checker represented by the Teamsters makes a total- yard inventory which lists each trailer and its specific yard location. Prior to each sailing, an employee rep- resented by the Clerks and Checkers also inventories the containers to ascertain their location for a more efficient loading on the vessel. Thus, it appears that employees represented by both Unions perform this disputed work. However, it appears to us that the operation would be more efficiently performed if only employees represented by the Clerks and Checkers performed the work. Thus, before a ship is due at the wharf, a clerk or checker could perform a yard inventory. If he has a list of containers to be loaded on the ship, he can proceed through the sec- tion of the yard where the containers are stored and diagram the location of each container to be loaded. In the unlikely event that he is not certain which containers must be loaded on the ship, he can allot more time for performing the yard inventory and di- agram the location of all the containers which poten- tially could be loaded on the ship. Having initially inventoried the containers, this checking should pro- ceed smoothly by those employees represented by the Clerks and Checkers. Although it is true that some unnecessary inventorying will result since these employees will make a record of containers which will proceed to the warehouse dock rather than to the wharf or which may be moved to another part of the yard in the future, it appears that some degree of inefficiency inevitably must result due to the division of labor and complicated logistics of "hostling" the containers and moving them on to ships or trucks. The spot checking does not appear to be a com- monplace procedure. Nevertheless, there appears to be no reason why employees represented by the Clerks and Checkers cannot easily perform this work when it is necessary that the Employer ascertain the contents or condition of particular containers. As ev- idence of the ease with which employees represented by the Clerks and Checkers should be able to per- form this work is the fact that this work of checking, inventorying, listing, recording, and spot checking is the exclusive work performed by employees repre- sented by the Clerks and Checkers and, apparently, is performed by employees represented by the Clerks and Checkers at the Port of Houston for all the Employer's competitors. Conclusion Having considered all pertinent factors, we con- clude that employees represented by the Clerks and Checkers are entitled to perform the work in dispute. We reach this conclusion relying particularly on the area practice and on the fact that such assignment will provide for the most harmonious and efficient operations. Accordingly, we shall determine the dis- pute before us by awarding the work in dispute at the Employer's Houston, Texas, location to those em- ployees represented by the Clerks and Checkers, but not to that Union or its members. The present deter- CLERKS & CHECKERS LOC. 1351, LONGSHOREMEN 1273 mination is limited to the particular controversy which gave rise to this proceeding. DETERMINATION OF DISPUTE Pursuant to Section 10(k) 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 hereby makes the following Determination of Dispute: 1. Employees of Sea-Land Services, Inc., who are represented by Clerks and Checkers Local 1351, In- ternational Longshoremen 's Association, are entitled to perform the work of checking the container yard inventory, including checking the loading, contents, or condition of the container yard at Sea-Land Serv- ices , Inc., Port of Houston terminal. 2. Teamsters Local No. 988 is not entitled by means proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act to force or require Sea-Land Services, Inc., to assign the above work to individuals represented by Teamsters Local No. 988. 3. Within 10 days from the date of this Decision and Determination of Dispute, Teamsters Local No. 988 shall notify the Regional Director for Region 23, in writing, whether or not it will refrain from forcing or requiring Sea-Land Services, Inc., by means pro- scribed by Section 8(b)(4)(D) of the Act, to assign the work in dispute to employees represented by it rather than to the employees represented by Clerks and Checkers Local 1351, International Longshoremen's Association. Copy with citationCopy as parenthetical citation