IBEW Local 48 (Kinder Morgan)

National Labor Relations Board - Board Decisions

Dec 31, 2011

357 N.L.R.B. 2217 (N.L.R.B. 2011)

ELECTRICAL WORKERS, LOCAL 48
357 NLRB No. 182
2217
International Brotherhood of Electrical Workers,
Local 48, AFL–CIO and Kinder Morgan Termi-
nals and International Longshore and Ware-
house Union, Local 4, AFL–CIO. Case 36–CD–
000236
December 31, 2011
DECISION AND DETERMINATION OF DISPUTE
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
This is a jurisdictional dispute proceeding under Sec-
tion 10(k) of the National Labor Relations Act (the Act).
Kinder Morgan Terminals (the Employer or Kinder
Morgan) filed a charge on March 23, 2011, alleging that
International Brotherhood of Electrical Workers, Local
48, AFL–CIO (IBEW) violated Section 8(b)(4)(D) of the
Act by engaging in proscribed activity with an object of
forcing the Employer to assign certain work to employ-
ees it represents rather than to employees represented by
the International Longshore and Warehouse Union, Lo-
cal 4, AFL–CIO (ILWU). A hearing was held on April
4, May 2, and 3, 2011, before Hearing Officer Jessica
Dietz.1 Thereafter, Kinder Morgan, IBEW, and ILWU
each filed a posthearing brief.
The Board affirms the hearing officer’s rulings, find-
ing them free from prejudicial error. On the entire rec-
ord, we make the following findings.
I. JURISDICTION
The parties stipulated that the Employer is a Delaware
corporation engaged in operating a cargo handling termi-
nal at the Port of Vancouver in Vancouver, Washington.
The parties also stipulated that during the last 12 months,
a representative period, the Employer received gross rev-
enues valued in excess of $500,000, and purchased and
received goods valued in excess of $50,000, at its Van-
couver, Washington location directly from suppliers out-
side of the state of Washington. The parties further stip-
ulated, and we find, that the Employer is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act and that IBEW and ILWU are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. THE DISPUTE
A. Background and Facts of Dispute
Kinder Morgan has operated the bulk shipping termi-
nal at the Port of Vancouver since around 1995. It oper-
ates the facility under a management contract with the
Port of Vancouver, the owner. Under the contract, Kind-

1 On the first day of the hearing, ILWU moved to quash the notice of
hearing. The hearing officer received evidence on the motion but left
its resolution to the Board.
er Morgan acts as manager of terminal operations for
marine terminal services and stevedoring. The Port of
Vancouver retains possessory rights and the agreement
does not create a leasehold. Kinder Morgan is responsi-
ble for the general cleanup, maintenance and repair
(M&R), supplies, and agreed-upon improvements with
respect to the property.
The work performed at the terminal includes offload-
ing, storing, and loading dry bulk products to be shipped.
The products are received by rail, then offloaded and
moved to storage by conveyor, and later moved again by
conveyor and loaded onto the vessels docked at the facil-
ity.
Kinder Morgan has at all relevant times been a mem-
ber of the Pacific Maritime Association (PMA). All
PMA members are bound to a collective-bargaining
agreement, the Pacific Coast Longshore Contract Docu-
ment, with the ILWU. The most recent agreement is
effective July 2008 to July 2015. Since it began opera-
tions at the Port of Vancouver, Kinder Morgan has em-
ployed ILWU-represented mechanics to maintain and
repair the cargo handling equipment. Kinder Morgan
currently employs four full-time ILWU-represented
workers and routinely hires extra workers from ILWU’s
local dispatch hall to perform M&R work.
Under its management contract with the Port of Van-
couver, Kinder Morgan agrees to comply with all appli-
cable rules and regulations of the Port and applicable
federal, state and local laws, ordinances and regulations.
A Washington State inspector, responsible for the Port of
Vancouver’s compliance with state electrical regulations,
testified at the hearing. According to the inspector, un-
der the parties’ management contract, Kinder Morgan
cannot directly hire electrical workers, because it does
not own the property or have any lease permitting such
hiring. He testified, without contradiction, that state reg-
ulations require that Kinder Morgan subcontract any
electrical work to a licensed electrical contractor with
employees possessing appropriate electrical licenses.
Accordingly, at all times, Kinder Morgan has hired
electrical subcontractors on an as-needed basis to per-
form necessary installation and electrical repairs on the
cargo loading equipment. These subcontractors have all
been signatories to collective-bargaining agreements
with IBEW, including Kinder Morgan’s most recent
electrical subcontractor, Accurate Electric of Oregon
(Accurate). Accurate electricians work an average of 1
to 2 days a week at the terminal. Three of them have
routinely worked at the terminal for several years. More
often than not, it is ILWU-represented workers at Kinder
Morgan who call Accurate to send electricians to per-
form needed electrical work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2218
Between July 15 and September 1, 2010, ILWU filed
six grievances against Kinder Morgan. All six grievanc-
es claimed lost work opportunities for ILWU M&R me-
chanics—specifically, that Kinder Morgan had employed
Accurate employees to perform electrical work at its Port
of Vancouver facility, in alleged violation of the PMA
bargaining agreement. It is undisputed that Accurate
employees performed the electrical work specified in the
grievances, which requires a journeyman electrician li-
cense.
The six grievances were discussed at meetings of the
Joint Port Labor Relations Council and finally heard by
an Area Arbitrator. IBEW was not a party to those pro-
ceedings. The arbitration hearing occurred on April 12,
2011, and no decision had issued as of the hearing in this
case.
After learning of ILWU’s grievances, IBEW grew
concerned about its potential loss of work. By letter dat-
ed December 9, 2010, IBEW informed Kinder Morgan
that it would do whatever was necessary to keep the
work that had always been performed by IBEW electri-
cians. In a March 18, 2011 letter to Kinder Morgan,
IBEW more directly addressed the issue by stating that if
the disputed work was not assigned to its members, it
would picket Kinder Morgan or take other economic
action.
B. Work in Dispute
The parties do not agree on the scope of work in dis-
pute. The notice of hearing defines the work as certain
tasks performed by employees of Accurate, including,
but not limited to, those tasks described in the six ILWU
grievances. Kinder Morgan and IBEW stipulated to that
description of the work. In the alternative, IBEW also
stipulated to the description set forth in their collective-
bargaining agreement with Accurate, which includes any
electrical work. ILWU describes the work as M&R of
all stevedore cargo handling equipment, including elec-
trical and electronic M&R. We find, based on the record,
that the work in dispute is the electrical work performed
to install and maintain the cargo handling equipment at
the facility operated by Kinder Morgan. This includes all
of the work described in the grievances filed by ILWU as
well as all other electrical work not specifically covered
by the grievances.
C. Contentions of the Parties
In its motion, ILWU contends that the notice of hear-
ing should be quashed because this is not a legitimate
case involving competing claims between two unions for
the same work within the scope of Sections 8(b)(4)(D)
and 10(k). Instead, it claims that this is a contractual and
work preservation dispute created by Kinder Morgan,
and that it should be resolved through arbitration. ILWU
also contends that IBEW’s threat was contrived to create
the appearance of a jurisdictional dispute and obtain the
work assignment preferred by the Employer. Should the
Board disagree with this position and find that there is a
valid jurisdictional dispute and deny the motion to quash,
ILWU maintains that the disputed work should be
awarded to ILWU-represented workers based on the fac-
tors of collective-bargaining agreements, past practice,
and economy and efficiency of operations.
Kinder Morgan and IBEW urge the Board to deny
ILWU’s motion to quash, contending that there is a true
jurisdictional dispute, that IBEW-represented workers
have historically performed the work, and that the parties
are not all bound by a common dispute—resolution
agreement. They also contend that there is reasonable
cause to believe that Section 8(b)(4)(D) of the Act has
been violated. On the merits, Kinder Morgan and IBEW
contend that the work in dispute should be awarded to
IBEW-represented employees, based on the following
factors: employer preference, current assignment and
past practice, area and industry practice, relative skills
and training, and economy and efficiency of operations.
D. Applicability of the Statute
Before the Board may proceed with determining a dis-
pute pursuant to Section 10(k) of the Act, there must be
reasonable cause to believe that Section 8(b)(4)(D) has
been violated. This standard requires finding that there is
reasonable cause to believe that: (1) there are competing
claims to the disputed work between rival groups of em-
ployees; (2) a party has used proscribed means to assert
its claim to the work in dispute; and (3) the parties have
not agreed on a method of voluntary adjustment of the
dispute. See, e.g., Electrical Workers Local 3 (Slattery
Skanska, Inc.), 342 NLRB 173, 174 (2004).
On this record, we find that this standard has been met.
The parties stipulated that both ILWU and IBEW claim
the work in dispute. There is reasonable cause to believe
that IBEW used means proscribed by 8(b)(4)(D) to assert
its claim: in its March 18, 2011 letter, IBEW threatened
to picket the Employer if the work was reassigned, and
there was no evidence that it would not follow through
with the threats. Although ILWU claims that the threat
was a sham contrived by Kinder Morgan, it offered no
evidence in support of this assertion. The parties stipu-
lated that there was no agreed-upon method for voluntary
adjustment of the dispute.
We find without merit ILWU’s contention that the in-
stant proceeding is a contractual dispute between Kinder
Morgan and ILWU over preservation of bargaining unit
work for ILWU-represented employees, and therefore
does not fall within the scope of Section 10(k) of the Act.
ELECTRICAL WORKERS, LOCAL 48 2219
In cases relied on by ILWU, the Board has quashed 10(k)
notices, finding that the disputes concerned work preser-
vation claims based on alleged contract violations, rather
than traditional jurisdictional disputes. Machinists Dis-
trict 190 Local 1414 (SSA Terminal LLC), 344 NLRB
1018 (2005), affd. 253 Fed. Appx. 625 (9th Cir. 2007);
Teamsters Local 578 (USCP-Wesco), 280 NLRB 818
(1986), affd. 827 F.2d 581 (9th Cir. 1987); Teamsters
Local 107 (Safeway Stores), 134 NLRB 1320, 1320
(1961). But in all of the cases where the Board quashed
a notice of hearing based on a work preservation claim,
the work in dispute was historically performed by the
union claiming the breach of its agreement with the em-
ployer. By contrast, when as here a union is claiming
work for employees who have not previously performed
it, the objective is not work preservation, but work acqui-
sition. The Board will resolve that dispute through a
10(k) proceeding. See, e.g., Teamsters Local 174 (Air-
borne Express), 340 NLRB 137, 139 (2003); Stage Em-
ployees IATSE Local 39 (Shepard Exposition Services),
337 NLRB 721, 723 (2002); Teamsters Local 107
(Reber-Friel Co.), 336 NLRB 518, 521–522 (2001). In
the present case, it is clear that IBEW-represented em-
ployees have performed the work in dispute, not only
during the more than15 years since before Kinder Mor-
gan took over terminal operations, but during the term of
Kinder Morgan’s predecessor. Thus, this is not a case
about “work preservation,” because there are no ILWU
jobs to preserve. Moreover, the terms of Kinder Mor-
gan’s collective-bargaining agreement with ILWU do not
provide, nor have they ever provided, that the work in
dispute is within ILWU’s jurisdiction. We thus find rea-
sonable cause to believe that Section 8(b)(4)(D) of the
Act has been violated, and that the dispute is properly
before the Board for determination. We accordingly
deny the ILWU’s motion to quash the notice of hearing.
E. Merits of the Dispute
Section 10(k) requires the Board to make an affirma-
tive award of disputed work based on the evidence pre-
sented by the parties. NLRB v. Electrical Workers Local
1212 (Columbia Broadcasting), 364 U.S. 573, 577
(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 balancing the
factors involved in a particular case. E.g., Machinists
Lodge 1743 (J.A. Jones Construction Co.), 135 NLRB
1402, 1410–1411 (1962).
The following factors are relevant in making the de-
termination of this dispute.
1. Certifications and collective-bargaining agreements
There is no evidence of any Board certification con-
cerning any of the employees involved in this dispute.
Kinder Morgan does not employ IBEW-represented
employees, and those two parties do not have a contract.
Although Accurate is signatory to a collective-bargaining
agreement with IBEW for electrical work performed by
electricians, Kinder Morgan is not bound by the terms of
that agreement.
As a member of the PMA, Kinder Morgan is bound to
a collective-bargaining agreement with ILWU. Section
1.71 of both the current and prior agreements sets forth
the scope of work and ILWU’s jurisdiction as “the
maintenance and repair of all stevedore cargo handling
equipment.” The current agreement, however, contains
new provisions addressing the work in light of the intro-
duction of new technologies. Section 1.72, one of the
new provisions, provides that ILWU’s jurisdiction ap-
plies to the M&R of all present and forthcoming steve-
dore cargo handling equipment, which shall constitute
the functional equivalent of such traditional ILWU work.
Section 1.73 defines the scope of ILWU work to include
“the pre-commission installation per each Employer’s
past practice . . . , post-commission installation, reinstal-
lation, removal, maintenance and repair, and associated
cleaning of all present and forth-coming technological
equipment related to the operation of stevedore handling
equipment . . . and its electronics, that are controlled or
interchanged by PMA companies.” Several “letters of
understanding” providing exceptions to ILWU’s contrac-
tual jurisdiction of M&R work were added to the agree-
ment during the course of the 2008 negotiations, but
none applies to the work at issue here.
As just shown, the PMA bargaining agreement’s juris-
dictional work description is very general, including
among other things “the maintenance and repair of all
stevedore cargo handling equipment.” But there is no
explicit mention of electrical work or any similar work
arguably described in ILWU’s contractual grievances.2
ILWU argues that more recent additions to the collec-
tive-bargaining agreement address the subcontracted
electrical work. But both the testimony and contract lan-
guage demonstrate that the collective-bargaining agree-
ment changes were directed at new work to be based on
the introduction of new technologies. There is no evi-
dence that electrical work associated with cargo handling
equipment conducted at Kinder Morgan’s facility is any
different from when Kinder Morgan took over the termi-

2 Although new sec. 1.73 uses the term “electronics,” it, too, is di-
rected at forthcoming technological improvements. In any event, we
find that description too vague to cover the electrical work at issue
here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2220
nal in 1995, nor is there evidence of new equipment with
more sophisticated technology installed in those 15-plus
years. The applicable collective-bargaining agreement
provisions have remained the same, as has the work and
who performs the work.
Under the circumstances described above, we find that
this factor does not favor an award of the disputed work
to either group of employees.
2. Employer preference, current assignment and
past practice
It is undisputed that Kinder Morgan prefers that the
work in question be performed by IBEW-represented
employees, that the work is currently performed by
IBEW-represented employees, and that the work has
been performed by IBEW-represented employees since
before Kinder Morgan took over operations in 1995.3 In
fact, ILWU does not dispute that its own members typi-
cally call in Accurate’s electricians to perform the elec-
trical work at the terminal. Kinder Morgan officials tes-
tified that they similarly use subcontractors with IBEW-
represented employees for the electrical work at two oth-
er terminal facilities in the same geographical area, while
employing ILWU-represented employees for M&R pur-
suant to the PMA collective-bargaining agreement. They
also testified, consistent with the testimony of the Wash-
ington state electrical inspector, that Kinder Morgan was
required under its contract with the Port of Vancouver
and state regulations to subcontract the electrical work to
a licensed electrical firm. Therefore, this factor favors
awarding the work to the employees represented by
IBEW.
3. Area and industry practice
There was very little evidence presented of area prac-
tice. As stated above, Kinder Morgan officials testified
that they used IBEW-represented employees to perform
the work in dispute at its other facilities in the area. Ex-
cept for ILWU’s presentation of a very few examples of
their mechanics performing electrical work or being li-
censed to perform such work, there is no evidence of the
practice of other area employers with respect to perform-
ing this work. No party introduced any evidence with
respect to industry practice.
We find this factor does not favor an award of the
work in dispute to either employee group.

3 ILWU attempted to show that employees it represents performed
some minor electrical work prior to Kinder Morgan’s operation of the
facility, but, as stated above, the record establishes that the work at
issue has consistently been performed by IBEW-represented employ-
ees, whether employed by Accurate or other subcontractors.
4. Relative skills and training
There is a substantial difference between the skills,
training, and certifications of ILWU-represented em-
ployees and IBEW-represented employees relative to the
work in dispute. IBEW has an extensive apprenticeship
and training program. All IBEW electricians complete a
5-year apprentice program, which includes classroom
and on-the-job training, to earn their journeyman license.
In addition, they are required to take 24 hours of continu-
ing education each year.
The record establishes that all of the IBEW-
represented employees performing the work in dispute,
as well as IBEW-represented employees in general, not
only possess the requisite skills and training to perform
the work in dispute, but are very experienced in that type
of work. In addition, the electrical subcontractors and
their employees are all properly licensed. There is no
evidence that Kinder Morgan considered any of the work
in dispute performed by IBEW-represented employees to
be unsatisfactory. Rather, the Kinder Morgan representa-
tives spoke about the excellent quality of IBEW-
represented employees’ work.
In contrast, ILWU has no comparable apprentice pro-
gram and members acquire such electrical knowledge as
they possess on the job. At the hearing, ILWU witnesses
were able to identify only six local ILWU members with
any type of electrical license, and none of them was able
to perform the Kinder Morgan electrical work due to
retirement, full-time employment by a different compa-
ny, or inadequate licensure. There was also testimony
that there may be a few other ILWU members with elec-
trical licenses located farther away.
We find that the factor of relative skills and training
favors an award of the work to employees represented by
IBEW.
5. Economy and efficiency of operations
Record evidence shows that using IBEW-represented
employees instead of ILWU-represented employees is
more economical and efficient. Several Kinder Morgan
representatives testified that it would be much more ex-
pensive to use ILWU-represented employees. It is clear
that Kinder Morgan does not need people to perform the
disputed electrical work on a full-time basis. In fact, the
disputed work is performed as infrequently as once a
week. An electrical contractor comes in on short notice
and Kinder Morgan pays only for the time worked. When
IBEW-represented subcontractor employees are called,
they are efficient because they possess the requisite train-
ing, experience, and licensing. If Kinder Morgan were to
use its full-time ILWU employees, it would suffer the
inefficiencies resulting from their lesser skills, risk po-
ELECTRICAL WORKERS, LOCAL 48 2221
tential liability for their lack of licensure, and delay com-
pletion of routine M&R work. ILWU’s suggestion to
transfer its more qualified members from other locals
would require hiring them on a full-time basis when, as
stated, only on-call work is needed, and would thereby
increase Kinder Morgan’s costs.
We find this factor favors an award of the disputed
work to employees represented by IBEW.
Conclusion
After considering all the relevant factors, we conclude
that employees represented by IBEW are entitled to per-
form the work in dispute. We reach this conclusion rely-
ing on the factors of employer preference, current as-
signment and past practice, relative skills and training,
and economy and efficiency of operations. In making
this determination, we are awarding the disputed work to
employees represented by International Brotherhood of
Electrical Workers, Local 48, AFL–CIO, not to that labor
organization or its members. This determination is lim-
ited to the controversy that gave rise to this proceeding.
DETERMINATION OF DISPUTE
The National Labor Relations Board makes the follow-
ing Determination of Dispute.
Employees represented by International Brotherhood
of Electrical Workers, Local 48, AFL–CIO, are entitled
to perform the electrical work related to installing and
maintaining the cargo handling equipment for Kinder
Morgan Terminals at the Port of Vancouver in Vancou-
ver, Washington.