General Truck Drivers Local No. 270

National Labor Relations Board - Board Decisions

Aug 1, 1967

166 N.L.R.B. 962 (N.L.R.B. 1967)

962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Truck Drivers , Chauffeurs Warehousemen
& Helpers, Local No . 270, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America and W. L.
Richeson & Sons , Inc. and Dockloaders and Un-
loaders of Freight Cars and Barges, ILA Local
Union No. 854 , AFL-CIO, Party to the Dispute.
Case 15-CD-76
August 1, 1967
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS , AND ZAGORIA
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing a charge filed by W. L. Richeson & Sons, Inc.,
hereinafter called the Employer, under Section
8(b)(4)(D). The charge alleges, in substance, that
General Truck Drivers, Chauffeurs,
Warehousemen & Helpers, Local 270, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
hereinafter called Teamsters Local 2 i 0 or Respond-
ent, threatened and restrained the Employer with
an object of forcing or requiring the Employer to as-
sign particular work to employees represented by
Teamsters Local 270 rather than to employees
represented by Dockloaders and Unloaders of
Freight Cars and Barges, ILA Local Union No.
854, AFL-CIO, hereinafter called Dockloaders
Local No. 854. Pursuant to notice, a hearing was
held before Edward A. Champagne, Hearing Of-
ficer, on April 12, 1967. All parties appeared at the
hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses,
and to adduce evidence bearing on the issues. The
rulings of the Hearing Officer made at the hearing
are free from prejudicial error and are hereby af-
firmed. The Employer and Dockloaders Local No.
854 have filed briefs which have been duly con-
sidered.
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
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
The Employer, a Louisiana corporation, is en-
gaged in ocean freight forwarding services at the
Poydras Street wharf, New Orleans , Louisiana. In
I The crane operator is an employee of another employer and no claim
i3 made with respect to this work
the past 12-month period, the Employer has derived
revenues in excess of $50,000 for freight-forward-
ing services performed for customers, such as
Goodyear Tire and Rubber Company, Sherwin-
Williams Paint Company, and Dow Chemical Com-
pany, who are themselves engaged in commerce
within the meaning of the Act. The parties stipu-
lated, and we find, 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 jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated and we find that Teamsters
Local 270 and Dockloaders Local No. 854 are
labor organizations within the meaning of Section
2(5) of the Act.
III. THE DISPUTE
A. The Work in Issue; Background Facts
The Employer is engaged in ocean freight-for-
warding services at its dock on the Poydras Street
wharf in the Port of New Orleans. In the course of
its operations, the Employer receives all types of
ocean freight for delivery to customers at
designated locations. One such freight item
received at the Employer's dock is newsprint,
which is shipped in large rolls from Canada and/or
Finland and destined for delivery to the Times-
Picayune newspaper in New Orleans and two
other customers of the Employer who are located
in the State of New York.
At issue in this proceeding is the right to perform
the loading work in connection with the delivery of
newsprint to the Times-Picayune. The newsprint
designated for use by the Times-Picayune is stored
by the Employer on the second floor of its dock
facility. As its needs require, the Times-Picayune
sends its trucks to the Employer's dock, where they
are loaded by employees of the Employer. The
loading operation is accomplished in the following
manner. The rolls of newsprint are moved by means
of a forklift from storage to a pickup area on the
second floor. At this point, two plugs are inserted
into the center of the roll and the roll is hooked to
a crane, which transports it to the truck bed. The
plugs are then removed and the loading operation is
complete. The operation of the forklift and the in-
sertion and removal of the plugs, called hooking-on
and hooking-off, performed by the employees of the
Employer, are the subject of the instant dispute. I
For many years the Employer has utilized em-
ployees represented by Teamsters Local 270 and
Dockloaders Local No. 854 to perform various of
166 NLRB No. 115
GENERAL TRUCK DRIVERS LOCAL NO. 270 963
its loading and unloading operations. The Em-
ployer's permanent work force includes employees
who, among their duties, load and unload trucks and
various types of vans, and who are represented by
Teamsters Local 270.2 In addition, the Employer
also regularly hires temporary employees, prin-
cipally for the loading and unloading of rail cars.
These employees are represented by Dockloaders
Local No. 854. At all times relevant, the Employer
has had collective-bargaining agreements with both
Unions.
Prior to October 1965, there was a ramp leading
to the second floor of the Employer's facility and
the rolls of newsprint were directly transported by
forklift from the second floor storage area to the bed
of the truck. However, in October 1965, the ramp
was removed and the present method of loading
was put into effect. Under both the old and the new
systems of loading, the work here in dispute has
been performed by employees represented by
Teamsters Local 270.3 After the change in opera-
tions, Dockloaders Local No. 854 informed the
Employer that it claimed the work in connection
with the forklift and the hooking-on and hooking-off
operations. When this claim was rejected,
Dockloaders Local No. 854, acting pursuant to its
collective-bargaining agreement with the Employ-
er,4 filed a grievance which resulted in a deter-
mination by the contract's permanent disputes com-
mittee awarding the operation of the forklift and the
hooking-on operation to Dockloaders Local No.
854. Teamsters Local 270 is not a party to this col-
lective-bargaining agreement and did not participate
in the grievance proceeding. Following the award,
Dockloaders Local No. 854 instituted a state court
proceeding and later filed suit in Federal district
court alleging that the Employer was in breach of its
collective-bargaining agreement with Dockloaders
Local No. 854 by refusing to assign the disputed
work to its members.5 On February 28, 1967, the
Employer advised Teamsters Local 270 President
Winters that in order to protect itself from any lia-
bility arising out of the suit pending in Federal dis-
trict court, the Employer would not employ Team-
sters Local 270 members to perform the disputed
work after March 10, 1967. On March 2, 1967,
Winters replied by notifying the Employer that
Teamsters Local 270 continued to claim the
disputed work and that, in support of this claim, it
had filed a grievance under its contract with the
Employer. On March 6, 1967, Winters sent a tele-
gram to the Employer stating that if Teamsters
Local 270 members were not permitted to continue
performing the disputed work, they would strike
and picket as of March 13, 1967. Thereafter a Sec-
tion 10(1) injunction proceeding was instituted in
Federal district court for the Eastern District of
Louisiana, which resulted in a stipulation by the
parties in which they agreed not to engage in acts of
picketing pending the outcome of this proceeding.
B. Contentions of the Parties
Dockloaders Local No. 854 claims its members
are entitled to the disputed work on the basis of its
contract with the Employer, the award of the per-
manent disputes committee acting pursuant to that
contract, custom and practice at the Poydras Street
wharf, and its traditional function of handling cargo
on the docks. Teamsters Local 270 did not file a
statement with the Board ,'but at the hearing, it con-
tended that its claim to the disputed work was sup-
ported by its contract with the Employer, the Em-
ployer's assignment , the Employer's past practice,
and custom and practice in the area. The Employer
supports the position of Teamsters Local 270 and
in addition it argues that this claim is further sup-
ported by a consideration of the skills and training
involved, the nature of the work, the effect of the
assignment upon employees, and efficiency of
operations.
C. Applicability of the Statute
Before the Board proceeds with a determination
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.
As stated above , the uncontroverted record
testimony establishes that Respondent threatened
to picket and strike for the purpose of inducing the
Employer to continue its assignment of the disputed
work to members of Teamsters Local 270. Ac-
cordingly, we find , on the entire record, that there
is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred and that the
dispute is properly before the Board for determina-
tion under Section 10 (k) of the Act.
D. Merits of the Dispute
Section 10(k) of the Act requires the Board to
make an affirmative award of the disputed work
after due consideration of various relevant factors.6
The following factors are asserted in support of the
claims of the parties herein.
2 The Employer' s permanent work force also includes a number of em-
ployees who perform clerical duties and are represented by International
Longshoremen's Association , Local No 655, AFL-CIO. The work per-
formed by these employees is not involved in the instant dispute.
3 The record indicates that prior to 1965 certain of the employees per-
forming this work were also members of Dockloaders Local No 854
4 The Employer is a member of the New Orleans Steamship Associa-
tion which bargains with Dockloaders Local No. 854 on an association-
wide basis.
5 The suit filed in Federal district court was still pending at the time of
the instant hearing
6 International Association of Machinists, Lodge 1743, AFL-CIO (J
A Jones Construction Company), 135 NLRB 1402.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Certification and bargaining agreements
The evidence indicates that there is no Board cer-
tification relative to the disputed work. Both
Unions contend, however, that their respective
contracts with the Employer cover this work. The
collective -bargaining agreement currently in force
between Dockloaders Local No. 854 and the New
Orleans Steamship Association, of which the Em-
ployer is a member , grants recognition to
Dockloaders Local No. 854 as the exclusive bar-
gaining agent for employees performing various
loading and unloading operations , including the
loading and unloading of trucks , vans , and trailers
on the wharves . The collective -bargaining agree-
ment in effect between Teamsters Local 270 and
the Employer provides , inter alia , that Teamsters
Local 270 is the exclusive bargaining representa-
tive of all employees in designated job classifica-
tions , including those of forklift operator and
helper , the same classifications involved in per-
forming the disputed work. The foregoing
establishes the existence of valid contractual claims
to the disputed work by both Unions. Although the
provision relied upon by Dockloaders Local No.
854 is more specific than the language employed in
Teamsters Local 270's contract with the Employer,
since both bargaining agreements clearly cover the
disputed work, we find that this factor does not
favor the claim of either Union.
2. Awards
Dockloaders Local No. 854 contends that
favorable consideration should be given to it on the
basis of the work award decision handed down by
the permanent disputes committee , acting pursuant
to the grievance procedure in the collective-bar-
gaining agreement between Dockloaders Local No.
854 and the New Orleans Steamship Association.
The record shows, however, that this award is not
dispositive of the issues because Teamsters Local
270 is not a party to the collective -bargaining agree-
ment establishing the permanent disputes commit-
tee and it has neither participated in such
proceedings nor agreed to be bound by the decision
of that body. Therefore, we give no effect to this
award.
3. Skills and training
and that these employees are experienced in the
loading operation herein involved. The record
further shows that employees represented by
Dockloaders Local No. 854 are hired by the Em-
ployer on a temporary basis with the result that dif-
ferent personnel are employed on each occasion.
This circumstance could require the Employer to
instruct each work gang in its loading method. Ac-
cordingly, we find that the factor of skill and train-
ing favors the claim of Teamsters Local 270.
4. Area practice
Both Unions rely upon area practice to support
their respective claims. However, the testimony ad-
duced at the hearing clearly indicates that the prac-
tice in the Port of New Orleans is to employ mem-
bers of Teamsters Local 270 to perform work
similar to that in dispute here. In the face of such
testimony, Dockloaders Local No. 854 was able to
establish a different practice on the part of only one
employer in the Port of New Orleans. Therefore,
we find that this factor supports the claim of Team-
sters Local 270.
5. Employer's past practice
The Employer has for over 10 years employed
members of Teamsters Local 270 to perform the
loading operation in connection with the transfer of
newsprint from its dock facility to the customers'
trucks. At no time has the Employer assigned the
disputed work or work of a similar nature to mem-
bers of Dockloaders Local No. 854. Accordingly,
we find this factor favors the claim by Teamsters
Local 270.
6. Nature of the work
The Employer cites as a separate factor the
distinction in the regular job duties performed by its
employees. Thus, it is the Employer's practice to
utilize employees represented by Dockloaders
Local No. 854 primarily for the purpose of loading
and unloading freight cars, whereas employees
represented by Teamsters Local 270 are principally
engaged in the loading and unloading of trucks and
vans. This distinction in the type of work regularly
performed is based upon Employer and area prac-
tices and to that extent has been considered and
given effect elsewhere in this Decision.
The parties concede that the work in dispute does
not require special skills. However, the Employer
contends that a certain amount of instruction is
necessary before an employee can satisfactorily
perform the work in question and this factor sup-
ports the claim of Teamsters Local 270. The
recorded evidence shows that the Employer has
been using its regular employees , represented by
Teamsters Local 270, to perform the disputed work
7. Traditional work jurisdiction
Dockloaders Local No. 854 contends that the
disputed work falls into the category of work which
is traditionally performed by longshoremen on the
docks. In essence , this contention is based upon the
longshoreman 's historical function of handling
cargo on the docks. We can give no effect to this
GENERAL TRUCK DRIVERS LOCAL NO. 270 965
factor, however, because both the Teamsters and
the Longshoremen have a valid historical basis for
claiming the right to perform work of this nature.
8. Impact upon employee job rights
The Employer contends that a work award in
favor of employees represented by Dockloaders
Local No. 854 would result in the termination of
certain of the employees now performing this work.
As previously stated, the Employer maintains a per-
manent work force which performs the disputed
work. These employees are represented by Team-
sters Local 270. The Employer also hires em-
ployees represented by Dockloaders Local No.
854, but only on a temporary basis. As a con-
sequence a work award in favor of employees
represented by Dockloaders Local 854 would
result in a gain in jobs for employees in that unit and
a corresponding job loss in the unit represented by
Teamsters Local 270. As the record indicates the
Employer would be unable to absorb all of the
replaced employees in its operations, the termina-
tion of certain of the Employer's permanent work
force would be a predictable result. Accordingly,
we find that this factor supports the claim of Team-
sters Local 270.
unable to assemble a work crew in time to meet the
requirements of its customers. Our consideration of
this factor causes us to conclude that efficiency of
operations supports the claim -of Teamsters Local
270.
E. Conclusions as to the Merits of the Dispute
Upon consideration of all pertinent factors ap-
pearing in the entire record, we shall assign the
work in dispute to the Employer's permanent em-
ployees represented by Teamsters Local 270. The
Employer's assignment of this work to its per-
manent employees is consistent with its own past
practice and the practices of employers in the Port
of New Orleans. The assignment is further sup-
ported by the factors of skills and training, impact
upon employee job rights and efficiency of opera-
tions. All of this demonstrates the superior claim of
this group of employees to the work in dispute. Ac-
cordingly, we shall determine the existing jurisdic-
tional dispute by deciding that the Employer's per-
manent work force, rather than its temporary em-
ployees are entitled to the work in dispute. In mak-
ing this determination, we are assigning the
disputed work to employees of the Employer who
are represented by Teamsters Local 270 but not to
that Union or its members.
9. Efficiency of operations
The Employer argues that efficiency of opera-
tions would be impaired by an assignment in favor
of employees represented by Dockloaders Local
No. 854, because the use of temporary employees
to perform this work is incompatible with the
delivery demands of its customers. The record in-
dicates that the requirements of the Employer's
customers dictate when delivery is to be effected.
With respect to the work in dispute, the Times-
Picayune gives the Employer only about 45
minutes' notice prior to picking up a supply of
newsprint and such pickups are made on an irregu-
lar basis. No problems have arisen in the past as a
result of the short notice given, because the Em-
ployer has had its permanent employees available
at all times to perform the loading operation. How-
ever, the Employer asserts, based upon its past ex-
perience, that if it were required to use temporary
employees to perform this operation, it would be
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
proceeding, the National Labor Relations Board
hereby makes the following determination of the
dispute:
Employees employed by W. L. Richeson & Sons,
Inc., New Orleans, Louisiana, who are currently
represented by General Truck Drivers, Chauffeurs,
Warehousemen & Helpers, Local No. 270, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, are entitled to operate the forklift and per-
form the hooking-on and hooking-off operations in
connection with the transportation of rolls of
newsprint from the second floor of the Employer's
Poydras Street dock facility to the trucks of
customers for loading.
308-926 0-70-62