ILA, Local 1576Download PDFNational Labor Relations Board - Board DecisionsJan 11, 1967162 N.L.R.B. 878 (N.L.R.B. 1967) Copy Citation 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith.'° 10 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT threaten to have a union organizer arrested because he is soliciting our employees during their own time on our parking lot. WE WILL NOT cause a union organizer to be arrested because he is soliciting our employees during their own time on our parking lot. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Retail Clerks Union, Local 1552, Retail Clerks International Association, AFL-CIO, or any other labor organization, to bar- gain collectively through representatives of their choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or refrain from becoming mem- bers of the above-named labor organization except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. PRICED-LESS DISCOUNT FOODS, INC, D/B/A PAYLESS, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627. International Longshoremen 's Association, Local 1576 , AFL-CIO and International Longshoremen 's Association, Local 329, AFL-CIO International Longshoremen 's Association, Local 1576, AFL-CIO and Texas Contracting Company and Galveston Maritime Asso- ciation , Inc: Cases 23-CD-111 and -112. January 11, 1967 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed on July 11, 1966, 162 NLRB No. 80. ILA, LOCAL 1576 879 by International Longshoremen's Association, Local 329, AFL-CIO, and on July 12, 1966, by Texas Contracting Company, herein called Texas Contracting, and Galveston Maritime Association, Inc., herein called GMA, alleging that International Longshoremen's Associa- tion, Local 1576, AFL-CIO, had violated Section 8(b) (4) (D) of the Act by inducing or encouraging employees of Texas Contracting to cease work for the purpose of forcing or requiring Texas Contracting to assign particular work to employees represented by Local 1576 rather than to employees represented by Local 329. A consolidated hearing was held before Hearing Officer Donald H. Hicks on Sep- tember 13, 14, and 16, 1966. 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 affirmed. Briefs were filed by Local 329, Local 1576, and jointly by Texas Contracting and GMA. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. Upon the entire record in this case, the Board makes the following findings : 1. TIIE BUSINESS OF THE EMPLOYERS We find that the Employers are engaged in, commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Local 329 and Local 1576 are labor organizations within the meaning of the Act. III. THE DISPUTE The dispute involves the discharging of crated green fruit' as part of a mixed cargo in the port of Galveston, Texas. Specifically, it concerns whether, longshoremen represented by Local 329 or Local 1576 are entitled to this type of work on vessels stevedored by Texas Contracting. For at least 25 years GMA has negotiated and been a party to the Deep Sea Longshore and Cotton Agreement, herein called the Agree- ment, with the South Atlantic and Gulf Coast District, ILA, herein called the District, and certain of its affiliated locals.' LeBlanc-Parr, i The current Agreement is effective from October 1, 1964, to September 30, 1968 The only locals in the port of Galveston that are signatories to this Agreement are Locals 307, 329, and 851. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., a steamship agent representing owners and operators of vessels, is a member of GMA and a signatory to the Agreement. The officers of LeBlanc-Parr, who are its majority stockholders, own all the stock of Texas Contracting, which only does work for LeBlanc-Parr. Texas Contracting is not a signatory to the Agreement 2 which pro- vides in part that : At Galveston, the Texas Contracting Company, Suderman's Stevedoring Inc., National Stevedore Company, and Texaa Ste- vedoring Company, Inc. will without discrimination, hire through Local 329, I.L.A. Local 1368 to receive their proportion of work as agreed upon by the district office of the I.L.A.... 3 It further provides that: No rule, regulation, by-law or constitutional provision of the Union is in any way a part of this Agreement. While Texas Contracting is not a signatory to the Agreement, it claims to be a party to the Agreement through the signature of LeBlanc-Parr.4 For at least 40 years Texas Contracting has ordered longshore labor only through Local 320. Neither Texas Contracting nor LeBlanc-Parr has a collective-bargaining contract with Local 1576, which was issued its present charter in 1938 by the ILA as Banana and Green Fruit Handlers. The dispute encompassed by the instant charges concerns the unloading of crated apples as part of a mixed cargo from the ship, Somerset, which arrived in the port of Galveston on Sunday, July 10, 1966. LeBlanc-Parr acted as agent and Texas Contracting as steve- dore. At a meeting in late June, attended by Ralph Massey, presi- dent of the District, and representatives of Locals 307, 329, and 851, the matter of unloading bananas and green fruit was discussed. All parties present, except Local 329, agreed that Local 1576 had juris- diction over unloading bananas and green fruit when part of a 2 The testimony indicates that where agents who represent vessels at the port of Galves- ton have a subsidiary stevedoring company or house stevedore , such as Texas Contracting is to LeBlanc-Parr, only the agent signs the agreement . Otherwise both the agent and the stevedoring company would be entitled to be members of GMA, thus giving those agents who operate stevedoring companies two votes as opposed to the agents who do not operate such companies. s Texas Contracting and Local 329 are the only parties listed in this provision that could be involved in this type dispute . There is no ILA, Local 1368, in Galveston . Suderman's Stevedoring Inc. has a contract with Local 1576, while Texla Stevedoring Company has not been in existence for many years. National Stevedore Company is now known as Young and Company , and the evidence shows that it never has handled and has no prospect of handling green fruit and bananas. 4 Texas Contracting further contends that even if it is not technically considered a party to the Agreement, it has always considered itself fully bound by its terms and has operated accordingly. ILA, LOCAL 1576 881 mixed cargo 5 if it required 4 or more hours of work.e On about July 1, 1966, Texas Contracting was approached by Massey and advised that the work of unloading the apples on the Somerset belonged to Local 1576. The president of Local 1576 also advised Texas Contracting that it was claiming the work. Representatives of Local 307, 851, and 1576 testified that the prac- tice in the port of Galveston is that green fruit and bananas are dis- charged by gangs from Local 1576 unless there is a mixed cargo and and discharge of the green fruit and bananas takes less than 4 hours. Several instances were cited where members of Local 1576 unloaded full or partial cargoes of bananas, but there were only two occasions specified when Local 1576 members discharged crated fruit from a mixed cargo. Texas Contracting did not stevedore the vessels on any of these occasions.7 There have been only three occasions when mem- bers of Local 329 were called to discharge cargo which included green fruit. Only two of these incidents involved Texas Contracting. In May 1962, Local 329 members discharged a mixed cargo, which included 64 tons of apples that took 6 hours to unload, for a vessel stevedored by Texas Contracting." On June 3, 1966, Local 329 mem- bers discharged a load of apples for Suderman's Stevedoring Com- pany which took approximately 1 hour and 45 minutes.9 The third occasion involved the instant .case. Labor from Local 329 was called to commence unloading the Som- erset on Monday, July 11, at 8 a.m. However, at 8 a.m. on the 11th, Local 1576 put up pickets with a sign reading, "Texas Contracting Company Unfair to ILA Local 1576." A work stoppage by Local 329 occurred in observance of the picket line. Local 1576 advised Texas Contracting that the pickets would be removed if the apples were not unloaded. The pickets were removed on the morning of July 12, but returned at 11 o'clock the next morning when it was 5 It was conceded that Local 1576 had jurisdiction over a full cargo of bananas, and there was testimony that Local 1576 did the work when there was a mixed cargo including just bananas. 6 Since 1954, the Agreement has provided that when a gang is called out, each member is guaranteed a minimum of 4 hours' pay, whether he works that many hours or not. To prevent an overlapping payment by the stevedoring company when a vessel brings in mixed cargo and different locals work on different type cargo, the locals agreed that a gang, once it began work, would work the full 4 hours even if it meant handling cargo under the jurisdiction of a different local for part of the time. 7 Unloading crated fruit is not different from unloading any other type of crated cargo which is the normal work of Local 329 members. Bananas, however, are not crated and different equipment Is used in discharging them. 8 The vice president of Texas Contracting testified that apples should be discharged at the rate of 15-18 tons per hour. 6 Local 1576 submitted a bill for this work, but later withdrew it when advised that the unloading took under 4 hours. 264-047-6 7-vol. 162-57 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discovered that cartons of apples were being discharged. The pick- ets were withdrawn on July 14, and the work was completed. Pursuant to the Agreement, an arbitration proceeding before a permanent arbitrator took place on Tuesday, July 12.10 The arbi- trator found that Texas Contracting was a party to the contract and that Local 1576 was subject to the jurisdiction of the District. He then ordered that the District disavow and refuse to condone any act on the part of Local 1576 or any other local which was interfering with discharging cargo from the Somerset by members of Local 329 and that was interfering with LeBlanc-Parr or Texas Contracting in discharging the Somerset with labor hired through Local 329. IV. CONTENTIONS OF THE PARTIES Local 329: Local 329 claims the work in question on the basis of the Agreement giving it the exclusive right to perform the work of loading and discharging cargo for Texas Contracting. It argues that for at least 40 years it has performed all the longshore work for Texas Contracting in the port of Galveston and that by contract and practice 'it should continue to perform all stevedoring work for that company. GMA and Texas Contracting: These employers, using substantially the same arguments as Local 329, contend that Local 329 should con- tinue to perform all the longshore work for Texas Contracting. In addition, they argue that the arbitration award made pursuant to the Agreement indicates that the District had engaged in an illegal conspiracy to help Local 1576 claim work which, under the Agree- ment, belonged to Local 329. Local 1576: Local 1576 contends that the work of handling bananas and/or green fruit for 4 or more hours should, be awarded to it. Local 1576 argues that Texas Contracting is not a party to the Agree- ment and thus is not contractually bound to hire its longshore labor through Local 329. Local 1576 further contends that such work was granted to it by charter and historically it had been performing the type of work in dispute. V. APPLICABILITY OF THE STATUTE The charge alleges a violation of Section 8(b) (4) (D). On the basis of the entire record, we find there is reasonable cause to believe that a violation of the Act has been committed and that a jurisdictional dispute exists which is properly before the Board for determination under Section 10(k) of the Act. 10 Local 1576 contends that the award cannot be binding on it since it was not a party to that proceeding. ILA, LOCAL 1576 VI. MERITS OF THE DISPUTE 883 Section 10 (k) of the Act requires the Board to make an affirmative award of disputed work after giving due consideration to various relevant factors, and the Board has held that its determination in a jurisdictional dispute case is an act of judgment based upon common- sense and experience in balancing such factors.'1 Neither Local 329 nor Local 1576 has been certified by the Board with respect to any employee involved in the instant proceeding. As to the skills involved, there is no question but that longshoremen hired out of Local 329 and Local 1576 are qualified to do the work in dispute. Both Locals claim that under past practice the work in dispute belongs to them. While Local 1576 cited several instances of unload- ing full or partial cargoes of bananas, it specified only two occasions since 1956 when it discharged any crated fruit from a mixed cargo. On neither of these occasions was Texas Contracting stevedore for the vessels involved. Other than the instant case, there was only one occasion when Texas Contracting stevedored a vessel bringing in general cargo plus green fruit. On that occasion, Local 329 dis- charged the green fruit which took 6 hours to unload. Local 1576 has never provided any labor for Texas Contracting, whereas, for at least 40 years, Local 329 has been the sole collective-bargaining agent for Texas Contracting's longshore employees. The Agreement between GMA and the District provides, in effect, that Texas Contracting will hire exclusively through Local 329. While much testimony was introduced as to whether Texas Contract- ing is a party to the Agreement since it is not a signatory, it is clear that Texas Contracting considers itself bound by the terms of the Agreement and has hired its labor accordingly. Local 1576 has no contract with Texas Contracting. The arbitration proceeding pursuant to the Agreement resulted in an order that the District disavow and refuse to condone any act on the part of Local 1576 or any other local under its jurisdiction that interferes with discharging cargo from the Somerset by Local 329. The District and Local 1576 were not represented at the arbitration proceeding.12 ' N.L.R.B. v. Radio and Television Broadcast Engineers Union . Local 1212 , Interna- tional Brotherhood of Electrical Workers, AFL-CIO [Columbia Broadcasting System], 364 U.S. 573 ; International Association of Machinists, Lodge No. 1743, AFL-CIO (J. A. Jones Construction Company ), 135 NLRB 1402. "The arbitration proceeding took place at the same time as an injunction proceedinc in the State court against Local 15711. Arthur J. Mandell , attorney for Local 1576 . briefly appeared at the arbitration proceeding, stating that he was appearing only as an amicue curiae of the arbitrator and that the position of the District was that Texas Contracting was not a party to the Agreement and therefore the arbitrator had no authority to proceed in the case. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 1576's charter is for green fruit and bananas whereas Local 329 has a general longshore charter. Testimony indicates that in other ports in'Texas bananas and green fruit are unloaded by ILA locals with general longshore charters. Upon consideration of all pertinent factors in the entire record, we shall' not disturb Texas Contracting's assignment of the disputed work to Local 329. Longshoremen furnished by Local 329 have per- formed the work for Texas Contracting which desires that they con- tinue to do the work. The longshoremen who are hired out of Local 329 are as skilled in the performance of the disputed work as the longshoremen who are hired out of Local 1576. The present assign- ment of the work in dispute is consistent with Texas Contracting's past practice and with the Agreement under which it considers itself bound. Accordingly, we shall determine the existing jurisdictional dispute by deciding that longshoremen represented by Local 329 rather than longshoremen represented by Local 1576 are entitled to the disputed work. In making this determination, we are assigning work to the employees who are represented by Local 329, but not to the Union or its members. Because other similar disputes may occur in the future, we shall not restrict the scope of our determination herein to the'specific job giving rise to this proceeding. Therefore, our determination in this case applies to all similar disputes concerning work performed for Texas Contracting. DETERMINATION OF DISPUTE Upon the basis of the foregoing findings, and the entire record in this proceeding, the Board makes the following Determination of Dispute, pursuant to Section 10(k) of the Act : 1. Longshoremen who are represented by International Longshore- men's Association, Local 329, AFL-CIO, are entitled to perform all work of discharging crated green fruit when part of a mixed cargo from vessels stevedored by Texas Contracting. 2. International Longshoremen's Association, Local 1576, AFL- CIO, is not entitled by means proscribed by Section 8(b) (4) (D) of the Act to force or require Texas Contracting to assign the above Rork to longshoremen represented by it. 3. Within 10 days from the date of this Decision and Determina- tion of Dispute, Local 1576 shall notify the Regional Director for Region 23, in writing, whether or not it will refrain from forcing or requiring Texas Contracting by means proscribed by Section 8(b) (4) (D) to assign the work in dispute to longshoremen represented by it rather than by Local 329. Copy with citationCopy as parenthetical citation