ILA, Local 1576

National Labor Relations Board - Board Decisions

Jan 11, 1967

162 N.L.R.B. 878 (N.L.R.B. 1967)

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.